"Gehry said no money was involved in the settlement"

The MIT-Frank Gehry lawsuit has settled. Story here.

Linkage

• Salander furniture to be auctioned. "Proceeds will benefit creditors in the bankruptcy."
• Are museums hampered by copyright laws?
• Judd Tully on the "recently cast" Degas bronzes. (Mentioned earlier here.)
• Should all charities be equal?
  

Lopsided Leaflet

Jonathan Kiefer on "The Art of the Steal":

"[Barnes's] Last Will and Testament specified his axe should be ground against the presumed philistinism of Philadelphia’s power elite in perpetuity. That hasn’t happened, and Barnes’ acolytes are pissed, so one of them hired Don Argott to make lopsided leaflet of a documentary about it. If only Argott had the courage of a little critical distance. ... One justification for this being a film and not a long-form magazine article is the chance to really look at all that great art, but no such luck: Argott’s too busy with the awkward problem of making a case against more people having more access to a trove of masterpieces. He can’t seem to see how his attempt to curry anti-establishment favor actually endorses elitism, and so his film is vain, unbalanced, illogical, overstated and damn compelling."

"Casting this story as a battle between the elites and the philistines mischaracterizes the situation"

Peter Rainer on "The Art of the Steal": "Imagine if there was a collection of works by Shakespeare, or symphonies by Mozart, that could be experienced only in a single location after an interminable wait, if at all? ... By making the art publicly available in the downtown location (which will recreate the way the art was displayed in the foundation), ... these glories will be seen by generations otherwise unable to do so. Is that so horrible?"

Linkage

• Gardner Heist gets a shout-out . . . on "The Simpsons."
• Happy birthday copyright!
• Meant to mention this one before the weekend: visual artist class action against Google. "The suit in federal court in New York was filed after a judge in Manhattan last year rejected the artists’ request to be part of a proposed $125 million settlement that Google reached with authors in connection with its plan to make digital copies of books in libraries."

"Estate Tax Law Uncertainty Affecting Donations to Museums"

Daniel Grant at the Huffington Post.

Related post here.

Linkage

• Seven-year sentence in TV art scam.
• Berry-Hill artwork seized.
• Josh Baer reports that Phillips de Pury won a court battle to sell works from Halsey Minor's collection.
• The Barnes move is a result of "the ever-apparent short gain philosophy revealed in company takeovers and the sub-prime mortgage debacle" or something.

"Officials say the museum may have to close in thirty days"

The Owensboro Museum of Fine Arts in Kentucky is on the verge of closing its doors.

Minor News

Lee Rosenbaum has some thoughts on the recent summary judgment decision Sotheby's got against collector Halsey Minor. She also gets this quote from Minor:

"I will be appealing. This is not a financial issue. ... It's an issue I feel very strongly about. It's an issue about disclosure and the integrity of the auction process."

"That’s a rate of something over $10 million per year on the initial loan, or 44%"

Felix Salmon says Art Capital made $16 million on its loan to Annie Leibovitz.

Linkage

• Shepard Fairey update.
• Did bureaucratic infighting sabotage the Gardner investigation?
• Lawsuit over Eames archive.

Linkage

• Another Leibovitz loan lawsuit.
• Park West jury trial underway in federal court in Detroit.
• Proposed regs governing sales of art in NYC parks.
• Updates on the Cleveland Museum and Fisk stories.
  

"But in many cases, experts say, contracts are unspecific and collectors do not fully understand the legal risks"

NYT "Wealth Matters" columnist Paul Sullivan: "Protect Your Art With More Than a Handshake."

"If there is one thing we can be sure of when it comes to fair use [it's] that there is nothing we can be sure of when it comes to fair use"

Sergio Muñoz Sarmiento responds to a just-released study by The Center for Social Media at American University on the impact of copyright and fair use on communication scholars.

Linkage (wow-there's-a-lot-going-on edition)

• Pace and Wildenstein have split up. Carol Vogel has the story in the NYT: "Although the financial details are being kept confidential, hundreds of millions of dollars are said to have changed hands. Pace bought out Wildenstein’s portion of the inventory they jointly owned .... It also bought out Wildenstein’s 49 percent share of PaceWildenstein."
• Collector sues gallery. Ed Winkleman comments.
• "Fake Wine, Thomas Jefferson, Christie's and the Law." Related story here.
• Is Canada the best place to unload stolen art? Mark Durney comments.
  
• Art fair legal dispute?
  
• Art Institute of Chicago cuts gallery hours.
• Not guilty pleas in Clementine Hunter fakes case.
  
• A conference on the 20th anniversary of the Gardner theft.
• Plus ca change.
• "Hundreds of artworks in Turkish museum stolen and replaced with fakes."
  

Minor Dismissal

Total victory for Sotheby's in its breach of contract lawsuit against Halsey Minor. Story here. He owes them $4.4 million -- "plus interest, late charges, and legal fees."

Minor's claim was that he didn't have to pay because "Sotheby's had significant economic interests in the artworks at issue, which it failed to disclose." The Court found that "none of Minor's arguments have merit" and granted summary judgment to the auction house. First, it adopted the reasoning of the Magistrate Judge in an earlier ruling in the case that:

1. Minor didn't properly allege the existence of a fiduciary duty;
2. He didn't plead injury with particularity as required by Rule 9(b); and
3. He failed to identify "how Sotheby's failure to disclose its interests is material."

The Court also rejected the argument that Sotheby's failure to use its "triangle symbol" -- for lots in which it has an "economic interest equivalent to an ownership interest" -- in the auction catalogue was misleading. "It is clear that Sotheby's had only a security interest" in the works," which is "not equivalent to ownership interests."

Sotheby's Conditions of Sale provide that they can impose a "late charge" of "Prime + 6% of the total purchase price," and also that the buyer will pay its "legal fees and expenses" in a collection action, so, all told, Minor will owe significantly more than the $4.4 million (which represents the difference between what he agreed to pay and what Sotheby's was able to resell the works for during the pendency of the suit).

Here is some background on the suit. Here is an email Minor sent me saying "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 [a]nd all else will have been long forgotten." Here is another in which he said "Sotheby’s has subjected themselves and their shareholders ... to massive liability all because they could not admit they were wrong and discuss a solution like gentlemen." Here is some info on a separate Minor suit against Christie's.

More Art of the Steal Reax

Heather Hope, who has excellent taste (see last bullet point), says, of The Art of the Steal: "I hated this movie and don’t recommend that anyone see it." Why? Because "it’s completely one-sided," an "ill-conceived gem of propaganda."

And Kevin Murphy -- who's a Democratic speechwriter on Capitol Hill -- says the movie "gradually becomes so grossly one-sided in its telling that it skips right over myopic and naive and ends up feeling downright corrupt." The whole thing is worth reading, but some highlights:

"I would also argue there's a world-historical eminent domain question here that should at least be addressed. Albert Barnes may have been a Great Man, but...Mistah Barnes, he dead. ... He's as dead as King Tut, who probably would not have signed off on what Howard Carter et al did to his tomb. ... And, speaking of which, there's a reason why Indiana Jones' usually undisputed refrain is, 'It belongs in a museum!'

"You may disagree, of course, and think that Barnes' will should be held inviolate from now until the End of Days -- Ok, that's cool, we disagree. But a good documentary would at least entertain this obvious opposing argument. . . . [I]n its final half-hour or so, Art of the Steal just fulminates and rages, barely making any sense at all. It accuses City officials of enacting an elaborate and corrupt scam on the people, and then depicts County officials, as well as the area's GOP Congressman, as if they're pure art lovers or something. . . .

"[T]he movie generates so much heat in the end that the light is lost. At one point, Governor Ed Rendell says the move of the collection to Philadelphia just seemed like an easy call to him, and after watching this documentary, I didn't see much to disqualify that claim. Other than following verbatim the will of a man with no heirs who's been dead for fifty years, what were the reasons again for keeping the collection in Lower Merion?

"In choosing to be a one-sided screed rather than an in-depth exploration of the subject at hand, Art of the Steal does its very interesting topic no favors."

Linkage

• Unauthorized readymades?
• Money trouble at the Detroit Institute of Arts.
• The fight over Marc Dreier's Warhols.

"These paintings are too good to be quarantined at an anachronistic and ineffective institution in Merion"

Artnet's Walter Robinson: Free the Barnes 800.

"Officials of the failed Fresno Metropolitan Museum say they hope to auction off most of their art collections by October"

"Walter's announcement suggests that the Met doesn't anticipate legal challenges to derail its efforts to sell the collection and use the proceeds to pay creditors." This is what happens when we let them fail.

"A powerful example of the altlaw in action" (UPDATED)

Sonia Katyal and Eduardo Peñalver -- authors of Property Outlaws -- make the case for Shepard Fairey as a heroic intellectual property "altlaw" -- i.e., someone who pushes the boundaries of what the law allows.

Sergio Muñoz Sarmiento responds here.

One question I have is: what if he loses? That is, Katyal and Peñalver argue that "if the law is to avoid being completely captured by the expansive claims of intellectual property owners, it needs more plaintiffs--and more cases--that enable courts to clarify the boundaries of fair use for the future." But doesn't that assume that courts will always clarify the boundaries in the direction or more fair use? Did Rogers v. Koons, for example, result in less expansive claims of intellectual property owners? What if (just for the sake of argument) the Fairey court holds that you can't make use of another's photo -- under any circumstances -- unless you get a license? That certainly would help clarify the boundaries of fair use in the future, but not in a way that makes the law less captive to the claims of IP owners.

UPDATE: Randy Kennedy in Saturday's New York Times: "Artist Looks to be Legal."

Linkage

• Lucky week for recovering stolen art.
• Top 5 art theft articles.
• Green Day art infringement suit.
  

"A momentous, elating acquisition that makes us all proud"

MoMA has acquired the @ symbol into its collection: "Being in the public realm, @ is free. It might be the only truly free—albeit not the only priceless—object in our collection."

More Minor

Courthouse News Service: "A finance company owned by Bank of America demands that Christie's auction house and the Paul Kasmin Gallery turn over more than 100 artworks that belonged to CNET founder Halsey Minor - or the money from selling them. ML Private Finance says it holds a $21.6 million judgment against Minor."

For more Minor art litigation, see here and here.

"What often gets lost in the emotional Barnes debate . . ."

". . . is that judges regularly toss out trust restrictions and substitute new provisions that probably would have appalled the original benefactors."

How about "The Section 11 of the Indenture Foundation"?

Ed Winkleman watched The Art of the Steal and came away searching for a new name for the Barnes (he considers, among others, "The P.A.L. Foundation (for Pew Charitable Trusts; the Annenberg Foundation; and The Lenfest Foundation)").

He also says that "no one who watches this film could possibly imagine that the central Philadelphia location is anything Dr. Barnes would want his name attached to. It's the exact opposite of what he was very, very careful to put into his will as to his wishes for how his efforts should be remembered." It is in fact true that no one watching the film could possibly imagine that, but it's worth noting again in this connection Barnes chairman Bernard Watson's claim that the central Philadelphia location "was, in fact, anticipated by Section 11 of the Barnes Foundation Indenture," which includes the following:

". . . should it for any other reason become impossible to administer the trust hereby created concerning said collection of pictures, then the property and funds contributed by Donor to Donee shall be applied to an object as nearly within the scope herein indicated and laid down as shall be possible, such application to be in connection with an existing and organized institution then in being and functioning in Philadelphia, Pennsylvania, or its suburbs" (emphasis added).

File Under "You Can't Win"

"City of Fresno Catches Major Heat for Trying to Save Its Metropolitan Museum."

And Many Moore!

Adam Jones of the Tuscaloosa News: "It’s been five years today, March 18, since the University of Alabama sued alumnus and sports artist Daniel Moore for trademark violations and Moore countersued for damaging his business. If a child were born that day, he’d start kindergarten in August."

NYT on Rothschild Foundation

The New York Times had a story today -- on the front page, no less -- on the Judith Rothschild Foundation. The headline is "Foundation Promotes Art as Well as Sole Trustee." The Charity Governance Blog's Jack Siegel says: "That headline and the story [suggest] scandal. Sorry, we don’t see it. An ideal governance structure? Absolutely not, but we see little to suggest that the sole trustee ... has done anything wrong."

Salander to Plead Guilty

Says the NY Post.

There Will Be More Moore

Sports artist Daniel Moore's appeal in his lawsuit with the University of Alabama has been reinstated. Background here.

"Nobody viewing the movie should be under the illusion that they are getting a balanced representation of the issues and facts"

It seems that Gary Steuer -- the Chief Cultural Officer for the City of Philadelphia -- is a blogger, and today he has a post on the Barnes move. Because of who he is, I'm sure the Usual Suspects will dismiss his arguments out of hand, but it would be more interesting if they bothered to respond on the merits. Among the points he makes:

• "If Dr. Barnes's commitment was to education and the use of the collection to educate people about art ... isn't there a great value to being located in a facility that is much more easily accessible ...?"
• The new building "maintains the exact same arrangement of art in rooms of the same dimension, with windows and doors in exactly the same locations, and even with view through the windows onto a bucolic landscape being replicated."
• "The prohibition on lending work or removing it other than for conservation will also be maintained."
• "Because the intimate dimensions of the rooms will be preserved, there will still need to be limitations on the volume of visitors that can be accommodated per hour, but because the new building will be open many more hours than the Merion site, ... many more people will be able to access the Barnes collection than are now able to."
• "The new building will create gallery space for temporary exhibitions, which the current building lacks. ... Temporary exhibition space will allow for fascinating curatorial exploration of the Barnes collection, mounting of exhibits that might illuminate the context of the man, the art and the times ...."
• The city "is putting no capital money into the project, and has made no commitments to providing operating funding."

As I've said before, even on a worst-case interpretation of how we got here (i.e., there was a dark conspiracy to "steal" the collection), it's really hard to see the move as some sort of catastrophe.

Still More Linkage

• Arrests in Dutch art theft.
• Stolen Gris recovered by FBI.
• Disputed Lloyd Webber Picasso to be sold at Christie's.
• "A cautionary tale."

Linkage (Gardner Heist 20th Anniversary Edition)

• Randy Kennedy.
• Derek Fincham.
• Interview with Ulrich Boser, author of "The Gardner Heist" ("If I were to speculate -- and this is raw speculation -- I believe these paintings are most likely in the Boston area, most likely the thieves have lost control of them, and maybe hid them away in an attic somewhere").
• "Twenty years without a clue."
• Providence Journal.
• AP ("It remains the most tantalizing art heist mystery in the world").

Linkage

• Artist sues gallery.
• Father sues son.
• Salander update.
• Legal fakes.
• Should fashion be protected by copyright?

"The museum was less secure than the average 7-Eleven or bank that night"

Ulrich Boser thinks the Gardner theft was "probably a local job carried out by common thieves who knew the paintings were valuable and that security at the Gardner was relatively lax. ... According to a previous [Boston] Globe investigation, the Gardner was equipped with only one alarm button and two young guards."

"The naïve claim of someone who still believes in Santa Claus"

Adam Lindemann defends the New Museum. (Background here.)

"Mockery and disdain - not legal action - are in most instances the proper response to plagiarism when it is suspected"

Jim Johnson on plagiarism.

You thought I was hard on "The Art of the Steal"?

The Charity Governance Blog's Jack Siegel takes it to the woodshed: "Unfortunately, the film, with all of its arrogance and hypocrisy, falls way short, doing nothing to advance the ball." Some highlights:

• "The makers of the Art of the Steal assume government officials, the local foundations, and the big hitters had an obligation to the Barnes Foundation and Dr. Barnes’ mission. That’s where the non-sequitor exists. The Pew Charitable Trusts, the City of Philadelphia, and the State of Pennsylvania had funds available to rescue the Barnes Foundation from its financial plight. None of these potential funders were obligated to use their funds to further Dr. Barnes intent. They played hardball, which was their right since it was their money that was being used or raised to rescue the collection."
• "The law is very clear in how it deals with donor intent. So long as the donor’s vision is viable, the law will respect and protect the donor’s intentions, but the law will step in when the circumstances thwart the donor’s intentions by making it impossible to carry them out. The law looks to the doctrines of cy pres and equitable deviation to address the problem. ... That’s exactly what happened in this case. The court did not have the funds to make the impossible possible. Neither did Lincoln University. Those who did have the funds put some condition on the use of their funds. That’s how the world works."
• "For us, the film raises interesting dilemmas about art and society, wealth, individual freedom, and control of heritage. Yet, in an effort to create a permanent, biased, and self-righteous record, the makers of the Art of Steal forgo an opportunity to explore these dilemmas and the contradictions they create."

"There is an opportunity for someone to return the paintings, become a multimillionaire, and remain confidential"

The latest approach to the Gardner heist.

Frigon Again

The Philadelphia Inquirer's Stephan Salisbury reports that the Philadelphia Museum of Art is suing its insurer to recover for the loss of two paintings it had consigned to the now defunct Salander-O'Reilly Galleries. Two things to note.

First, as we all know, the two works the museum was trying to sell -- Maurice Prendergast's The Harbor and Arthur B. Davies' Mountain Landscape -- were of course held in the public trust by the museum, to be accessible to present and future generations.

And second, this appears to be a repeat of the Frigon case from a few years ago, in which a federal judge in Illinois held that an "all risk" insurance policy covered conversion by a gallery of consigned works. That decision was in Jan. 2007. The museum consigned the two works at issue here in late 2006.

Do they ever stop wringing?

Kenneth Turan's generally positive review of "The Art of the Steal" ("Even if you believe that the art should stay where it is, it's hard not to wish that director Don Argott had made the film somewhat more balanced") refers to a 2004 piece by Roberta Smith -- written right after the court had approved the move -- that's really worth reading in full.

She begins by noting that the decision "has met with the usual wringing of art-world hands," but goes on to argue that "the gains may ultimately outweigh the losses." She says "the decision is a triumph of accessibility over isolation, of art over the egos of collectors and, frankly, of the urban over the suburban" and adds:

"The Barnes collection is not the Sistine Chapel ceiling. Barnes didn't make the art; he bought it, one movable object at a time. Very few things remain the same forever .... Our perceptions of artworks shift when the setting changes .... But that is one of the exhilarating things about art objects: different things can be learned from them as they move from one context to another. And most of them, after all, were originally built to move."

And one more great passage:

"[The Barnes] has been mismanaged to the point of dissolution and fought over to the point of dysfunction. It is so overburdened with restrictions - on the display of paintings, on loans, on attendance - that it has become a kind of fetish, a monument to an oppressive vision that is frozen in time, holding the art hostage. In short, the Barnes had become too much about Barnes and his vision and not enough about the art and the people who needed to see it. It seems likely that a move to Philadelphia ... could correct this imbalance to the benefit of every constituent."

As I say, read the whole thing.

Edelman Suit

Reuters: "Asher Edelman, a former corporate raider who became an art dealer, has been sued by Emigrant Bank for more than $3.1 million after allegedly defaulting on some loans, including one to buy a sculpture by Alberto Giacometti."

Polaroid Collection Update

Interesting report in The Art Newspaper: "A group led by a former US magistrate judge has launched an 11th hour campaign to prevent the auction of photographs from the Polaroid collection." The group is said to be "working towards filing a motion for a rehearing at the Minnesota bankruptcy court that awarded sale rights to Sotheby’s last August." The works are scheduled to be sold at Sotheby's in New York in June.

The former magistrate judge -- Sam Joyner -- "believes that both the Delaware Bankruptcy Court that awarded transfer of the Polaroid Collection in 2002 and the Minnesota Bankruptcy Court that approved the Sotheby’s sale in 2009, 'acted without full knowledge of the restrictive language in the many and varied licence agreements'." He says "I don’t think that the number of these licence agreements was presented to [the Judge] as fully and completely as it should have been. We hope to provide them with that full knowledge. There are hundreds of photographers, and thousands of images involved."

Sotheby's responded: "On August 28, 2009 the federal bankruptcy court in St Paul approved Sotheby’s auction of approximately 1,200 works from the Polaroid Collection. Public notice of the hearing was given in the national media, and the hearing was well publicised. This order was not appealed and now has become a final order of the United States Bankruptcy Court."

And a reminder (and a call to action) from A.D. Coleman: "We should all keep in mind that, even assuming the auction by Sotheby’s goes through as planned, it includes only 1260 works out of an inventoried total of 15,936. That leaves 14,676 still in the hands of the court-appointed trustee, John R. Stoebner, for disposition. His job is to raise as much cash as he can, as quickly as he can, to settle the debts Tom Petters left in his wake. It’s a safe bet that Stoebner would much prefer to sell that entire collection, quickly, to a single buyer, and is prepared to negotiate. ... In short, we need to help the trustee find this collection — complete as is, or minus the auction selection but otherwise intact — a good new home."

See here for background.

Leibovitz Latest

Randy Kennedy in the NYT: "The photographer Annie Leibovitz ... has reached an agreement with Colony Capital, a Los Angeles firm, to help her restructure her debt .... Under the deal, Colony — which manages about $30 billion in assets, mostly in real estate — will become Ms Leibovitz’s only creditor .... Ms. Leibovitz averted a foreclosure last summer after she missed a deadline to repay $24 million in loans she owed to Art Capital Group .... Colony, which also controls the rights to the Neverland Ranch in California, ... plans to manage sales of Ms. Leibovitz’s photographic holdings and pursue other business ventures for her so that she can concentrate on her career."

Felix Salmon says it's a smart move for Leibovitz: "[Colony's] unlikely to start foreclosing on her assets in the way that Art Capital is prone to do. Technically, this is a debt deal: Colony has bought Art Capital’s loan. But my guess is that Colony is looking at it more like an equity deal: they expect to work with Leibovitz to start generating an income stream for both of them which is going to last more or less indefinitely."

Suit Under the Indian Arts and Crafts Enforcement Act

Here.

For more on the Act, see here.

On Outlaws

I've been meaning to mention Sonia Katyal and Eduardo M. Penalver's Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership, and I now see that they've posted the introduction online here. Here's the abstract:

"Property Outlaws puts forth the intriguingly counterintuitive proposition that, in the case of both tangible and intellectual property law, disobedience can often lead to an improvement in legal regulation. The authors argue that in property law there is a tension between the competing demands of stability and dynamism, but its tendency is to become static and fall out of step with the needs of society.

"The authors employ wide-ranging examples of the behaviors of 'property outlaws' - the trespasser, squatter, pirate, or file-sharer-to show how specific behaviors have induced legal innovation. They also delineate the similarities between the actions of property outlaws in the spheres of tangible and intellectual property. An important conclusion of the book is that a dynamic between the activities of 'property outlaws' and legal innovation should be cultivated in order to maintain this avenue of legal reform."

Off the Wagon

I know I said I would take a break from "The Art of the Steal," but a few interesting pieces appeared over the weekend that are worth noting.

First, in the Philadelphia Inquirer, Barnes chairman Bernard Watson says the film is an example of "voodoo history": "The film would have the public believe that the Philadelphia philanthropic community, the Barnes' trustees, the Commonwealth of Pennsylvania, the Philadelphia Museum of Art, and The Inquirer itself, were all engaged in a conspiracy hatched well over a decade ago to 'steal' the collection . . . ." But: "As has always been the case, the collection belongs to the Barnes Foundation, and no one else. You can't 'steal' something that you already own."

He concludes: "One thing is perfectly clear. You can never influence the opinion of those who would prefer to believe in a 'vast conspiracy' rather than face reality. The Barnes Foundation was on the brink of bankruptcy, and those who came to its help do not deserve to be vilified, but should be praised for their extraordinary public service."

Also in the Inquirer, classical music critic Peter Dobrin, who believes that "something will be lost" in the move, nevertheless labels the film "documentary-as-propaganda": "The aim here isn't balanced exposition so much as a sharp elevation of the viewer's blood pressure." (He later points out that "the menacing music is more appropriate to an exposé of a military junta than the moving of an art collection.") And he notes some of the many contradictions in the movie:

"The Art of the Steal rails against the commercialization of art, yet repeatedly marvels at how many billions of dollars the Barnes Foundation is worth.

"The film bristles at the power and elitism of the Art Establishment. Opponents of the Barnes' move to the Parkway, however, manage to come across as just elitists of another stripe.

"Talkers state their case as one that unfolded with the media asleep at the switch. Yet they repeatedly rely on facts uncovered by - the media. Without slow pans across newspaper clips, half the film's suspense would drain away."

He also says "I would never rate one kind of art-viewing experience as superior to another, yet this film presumes a hierarchy of experiences - Barnes acolytes get moral authority, everyone else not so much." (Some related thoughts here.)

Finally, the Washington Post's Philip Kennicott uses the film as a springboard to examine the issue of one-sided documentaries generally. First, here's how he summarizes the history that led to the move:

"The Barnes indenture ... was fatally misconceived, with crippling limits on how his money could be invested. Quixotic and even irresponsible management drove the foundation near the point of insolvency, which is when Pew and other foundations stepped in. Working with the Barnes Foundation board of directors ... the groups helped save the foundation from financial ruin. But they're also helping with a move into a new home under construction on the Benjamin Franklin Parkway, where it will be more accessible (scheduled to open in 2012)."

He then moves on to the question of what documentary filmmakers owe their viewers in the way of balance. He quotes the film's director, Don Argott, as saying "we never positioned ourselves as people who were hostile and had any agenda," and says in reply:

"But his film is hostile and has an agenda. It uses a well-developed set of polemical techniques -- ominous music, imputations of dark motives, ad hominem interviews -- to connect only the dots that make its case. . . . In many cases, films about evil -- genocide, torture, bigotry -- don't include 'the other side' because the other side deserves no hearing. Argott's film is different. There is another side that needs to be heard, and the truth of the larger Barnes drama lies between them."

More on Charitable Deductions

GW lawprof Sarah Lawsky on Obama's itemized deduction proposal:

"Won't this proposal reduce charitable giving? The short answer is: almost certainly yes, though the degree to which it would do so is debated. The Center on Budget and Policy Priorities, for example, thinks the effect would be small; others are more concerned. Jon Bakija and Bradley Heim, How Does Charitable Giving Respond to Incentives and Income? Dynamic Panel Estimates Accounting for Predictable Changes in Taxation, discusses the more general question of the price elasticity of charitable giving."

Daniel Grant recently discussed this issue at the Huffington Post.

The Economics of Fakes

Mark Durney had an interesting post on the subject over the weekend, with links to David Gill ("forgeries have corrupted collections for centuries") and Bruno Frey ("the harmful effects of fakes are small and mitigated by emerging institutions (guarantees, sellers with reputation)").

More Fresno Fallout

The Fresno Bee reports: "The son and daughter-in-law of famed nature photographer Ansel Adams have filed a civil complaint in Fresno County Superior Court to prevent six of Adams' prints from being auctioned off by the Fresno Metropolitan Museum."

The background: "The Met closed in January and already has auctioned off tools, office equipment and other items to raise money to pay creditors. An art auction is planned for a later date. . . . Museum officials have said proceeds from the two auctions will go toward paying the Met's debts, estimated at about $4 million."

Gardner Theft News (UPDATED)

The Boston Globe: "On the eve of the 20th anniversary of the theft of masterpieces from the Isabella Stewart Gardner Museum, the FBI is resubmitting evidence taken from the crime scene for DNA analysis in hope of gaining a long-sought break in the case."

UPDATE: Some thoughts from Art Theft Central's Mark Durney.

Steal Away

I ran into a friend, and loyal reader of the blog, this morning, who immediately said: "Okay, okay, we get it: the movie isn't any good!"

Point taken, and so let's take a break from The Art of the Steal for a while (though I reserve the right to come back to it if someone has something especially interesting to say about it). How about a little more on the Gaylord fair use decision (mentioned last week here)?

Pitt's Mike Madison says: "The standard for 'transformativeness' that I extract from Campbell v. Acuff-Rose Music is whether a changed message based on the original work 'reasonably could be perceived.' Has the Federal Circuit ... substitute[d] its own artistic sensibility, and its implicit skepticism that a photograph of a three-dimensional object ever could be transformative, for that of an audience of reasonable stamp-buyers?"

In the comments, Marquette's Bruce Boyden says the fair use issue "is difficult, particularly under existing law. 1) There are lots of cases out there that seem to suggest that putting an artwork somewhere in the frame is not fair use as long as the artwork is recognizable (the Seven case, the pinball case, Ringgold, Woods, the Devil’s Advocate case). If that’s the test the government loses."

In response to which Madison concedes that "if you follow those fair use cases, then I agree that the doctrinal question is closer than I’ve made it out to be." But he maintains that "the cases themselves, in my view, are almost all badly decided and in some cases badly reasoned."

"It weighs over 100 kilograms which leads us to believe that this is an organised heist, possibly even some kind of artist performance"

The Art Newspaper reports: "A huge banner by the Russian art collective AES+F was stolen last week when technicians at the Witte de With Centre for Contemporary Art in Rotterdam removed the work from the building façade."

"The idea of a 'theft' requires that the 'thing' stolen is actually taken from someone"

Barnes Foundation general counsel Brett Miller has a letter to the editor of the Philadelphia Daily News, in response to their review of "The Art of the Steal." He says:

"The basic allegation of the film ... is that the Barnes collection was somehow 'hijacked' or 'stolen.' The idea of a 'theft' requires that the 'thing' stolen is actually taken from someone. The reality is that the Barnes board remains in control of the foundation; no members of the Pew Charitable Trust, Annenberg or Lenfest Foundation serve on the board, and Lincoln University nominees represent more than a third of the board."

It is strange how it's not enough for some people to say "I disagree with the decision the board made to move the collection to Philadelphia." Instead it has to be THEFT CONSPIRACY ELEVENTY. As Miller points out, the theft-ists' story is that the Barnes board, in voting to move four-and-a-half miles down the road, stole the museum from . . . um, I'm not sure who exactly. The whole thing is kind of incoherent, really.

(I add here my usual disclaimer that I would have preferred to see the museum stay in Merion.)

"Any argument that the Barnes shouldn't move needs to explain how and why Judge Ott arrived at his fateful, wrongful decision. . . ."

" . . . It's a task that Argott has unaccountably side-stepped."

Lee Rosenbaum posts Part 2 of her review of "The Art of the Steal."

"There can be no denying the public benefit, both for the city of Philadelphia and the general public, of opening the collection to a wider audience"

Mark Lamster in The Architect's Newspaper: "Argott fails to engage or even acknowledge the two central questions the Barnes controversy (and his film) raises. First, why should reasonable people be forced to live with the intransigent intentions of a man who’s been dead for half a century? And second, might the Barnes collection actually be better off in a purpose-built museum in downtown Philadelphia, where it will be far more accessible to the general public, and a boon to that city’s teetering economy."

"Less a doc than a polemic"

Philadelphia Weekly: "[Argott] pushes his argument too hard—so absurdly hard, in fact, that the only sane response is to think it’s not really THAT big a deal. . . . [O]ne of the opening sound bites charges that the Barnes move is 'the biggest act of cultural vandalism since World War II.' Seriously? Barring a miracle, the collection will move 4.2 miles, into a building that will retain its owner’s eccentric layout .... THIS is tantamount to the Rape of Europa? ... The Art of the Steal is riddled with such hyperbole and fuzzy reasoning, and each instance pops yet another tiny hole in the collective argument. No one addresses the pros of the move—that more people would be able to see, say, Matisse’s Le bonheur de vivre, or that it would bring mucho tourism dollars to a city so cash-strapped it nearly closed its libraries. Such are the limitations of the polemic, which like its close cousin, propaganda, aims for the heart first and the head a distant second."

"Is it really 'a tragedy' that lots more people will get to see these paintings?"

Kyle Smith: "This documentary relies heavily on an echo chamber of art writers and teachers, all of whom are outraged by the proposed move, but their ad hominem snark ... and use of derision like calling the new museum 'McBarnes' are more revealing than the filmmakers suspect. The same neighbors are shown first complaining that the Barnes collection draws too much street parking, then fighting the addition of a parking lot, then fighting yet again to keep the collection where it is, where few can see it. Maybe the gentry and art-world snobs are less interested in the details of Barnes' will than in preserving a fabulous secret garden, away from the grubby public."

Linkage

• Lawsuit over Warhol painting.
• Law & Order, art-style.
• "Few Canadians give to the arts."
• Art crime exhibit.
• "The Guardian's report confirms a number of frequently discussed issues related to stolen art and ransoms."
  

Indictment in Clementine Hunter Case

The (La.) Independent Weekly reports: "A federal grand jury indicted three people for selling counterfeit Clementine Hunter paintings. William Toye, 78, and Beryl Ann Toye, 68, both of Baton Rouge, and 62-year-old Robert E. Lucky Jr. of New Orleans were named in a four-count indictment that charges all three defendants with mail fraud and conspiracy to commit mail fraud, acting U.S. Attorney Bill Flanagan announced Thursday."

Background here.

What if Barnes's Will called for one work to be deaccessioned every year on his birthday?

The Art Market Monitor:

"Many of the outraged opponents of the Barnes move point to his wishes. Call it donor intent. Any sensible construction of the idea of art as a public trust ... should find Barnes’s dictatorial constraints over the art long after his own death ... to be in conflict with the interests of the public."

"The distortions start with the film's title"

Lee Rosenbaum posts part one of her review of "The Art of the Steal." Some highlights:

• "No Barnes masterpieces have been 'stolen' ... There was no 'heist.' ... This intrastate transport of masterpieces is surely not 'the greatest act of cultural vandalism since World War II.'"
• "Perhaps the best metaphor for what happened to the Barnes is 'takeover': The institution fell into stronger hands after being seriously vitiated by mismanagement and further endangered by the then-hostile neighbors who, paradoxically, are now leading the charge to keep it in Merion."
• "Argott disingenuously told Eric Kohn of the Wall Street Journal that he 'went into this with a blank slate,' when in fact he received his assignment from executive producer Lenny Feinberg, a ... former Barnes Foundation student, who made it clear during the post-screening discussion on stage at the New York Film Festival that he was always intent on an exposé."
• "The strangest gaffe is the film's heavy reliance on Mark Schwartz for elucidiation of the legal case. Schwartz is identified in the film as an attorney for Montgomery County and the Friends of the Barnes. Unmentioned in the film (and perhaps unknown to Argott) is that both the County and the Friends got Schwartz off the case early---a result of various missteps (including arguments in court that provoked the judge to admonish him), as well as a payment dispute."

Not So Easy (UPDATE)

I went back and forth this summer with Peter Friedman over the Gaylord postage stamp fair use case. I said it was good example of the unpredictability of fair use decisions. Friedman said that was "ridiculous." Gaylord, he maintained, was an "easy case" of fair use.

Today the Federal Circuit ruled in the case: no fair use.

You can read the decision here.

UPDATED: Friedman reacts to the decision here.

More "Art of the Steal" Reviews

The New York Times:

"As its title suggests, 'The Art of the Steal' is nothing if not agenda-driven, having been paid for by a former foundation student, Lenny Feinberg, who — to quote the movie’s notes — 'initiated, funded and was intimately involved in the making of The Art of the Steal.’ . . . But while its bias enlivens the movie ... it eventually also weakens it. . . . That’s too bad because surely there are more nuanced arguments for the move than those found here, which could only strengthen the documentary, saving it from caricature. At times the fight comes across as a smackdown between art snobs who want to preserve Barnes’s right to exhibit his masterworks however he wanted because, well, he paid for them (a curiously underexamined refrain), and vulgarians who want to turn his patrimony into tourist bait .... What remains unanswered, finally, is the larger question of whether deep pockets ensure custodial rights forever."

The Philadelphia Inquirer:

"[A]s a narrative of the facts, it is as one-sided as a plaintiff's brief. Argott simplifies the institution's convoluted, colorful history into stark black and white, smearing villains and cheering heroes. . . . The bad guys are a shadowy 'cabal' of Philadelphia foundations ... conspiring to break Barnes' will and abduct his babies in order to exploit them purely for touristic purposes. The good guys are the Friends of the Barnes, a group that seeks to preserve the collector's babies as he intended, in the villa especially built for them. One would not know from the movie that the so-called bad guys' plan would keep the foundation's holdings intact, maintain its educational mission, and bring Barnes' underknown collection to a greater number of people. . . .

"[T]he second time Drexel professor Robert Zaller, a Friend of the Barnes, is heard insisting that the proposed move downtown is 'the greatest act of cultural vandalism since World War II,' you think: Really? Then the hard question emerges, not from the screen, but in the viewer's mind: Does moving this chronically underfunded collection from its suburban enclave, where there is limited visitor access, to an urban center where it will have a solid endowment and greater public access, constitute vandalism? This viewer answers no: not vandalism. Pragmatism, perhaps, but not vandalism. Rather than tell the whole story of how the Barnes move came about - a Dickensian saga of bad financial planning, worse management, endless lawsuits, and meddling NIMBYs - Argott's talking heads spin a unified conspiracy theory of how Philadelphia money and institutions always had it in for Barnes."

Not So Fast

I said yesterday that The Tennessean's report on the latest in the Fisk-O'Keeffe litigation -- under the headline "Door is left open for Fisk to sell Georgia O'Keeffe art," and complete with triumphant quotes from Fisk President Hazel O'Leary ("Those who wait long enough get good news") -- was a little premature.

Sure enough, today brings a very different headline: "Fisk deal to sell O'Keeffe art takes hit."

We learn that "the state attorney general is casting doubt on whether a sale could move forward as easily as Fisk officials had initially hoped." He issued a statement saying that "neither the university nor O'Keeffe's estate in New Mexico should be allowed to move the collection."

As I mentioned last summer, Fisk now has to prove that compliance with the terms of the gift has become "impossible or impracticable." The AG says that, "given Fisk's recent reaccreditation by the Southern Association of Colleges and Schools, the university can no longer argue that the sale of the Collection is necessary to its financial survival."

Daniel Moore Appeal Dismissed

On a clerical error.

For background on what the appeal is about, see here.

Fisk Update

I think the headline on this story in The Tennessean ("Door is left open for Fisk to sell Georgia O'Keeffe art") is a little misleading. The Tennessee Supreme Court has declined to hear an appeal of the intermediate appellate court's decision tossing the O'Keeffe Museum from the suit on standing grounds. It seems to me that leaves things where they were when that decision came down this summer, namely:

"As the NYT reports, Fisk 'must still win permission in a lower court to sell an interest in the collection.' And as Lee Rosenbaum points out, they may have gotten the O'Keeffe Museum out of the way, but Tennessee Attorney General Robert Cooper still needs to be dealt with, and he is on record as strongly preferring a solution 'that would allow the Stieglitz Collection to remain in Nashville on a full-time basis.'"

Though, as I pointed out last summer, there is some language in that decision that would seem to support Fisk's plan to sell a share of the collection to the Crystal Bridges Museum.

"No one seeing 'The Art of the Steal' will be left wondering where the filmmakers’ sympathies are"

There was a good story in Sunday's New York Times on "The Art of the Steal," which opens Friday in New York. The key point is one I've made here several times: the movie is a polemic; don't go in expecting even a remotely balanced presentation.

It notes that the project came to the director, Don Argott, "through a former Barnes student named Lenny Feinberg"; that "the title itself ... makes clear what [the filmmakers'] think transpired behind the scenes"; that "some" might describe the film's style as "heavy-handed"; and that "some members of the museum world who have seen the film have ... taken sharp issue with many of Mr. Argott’s conclusions and with the style in which they are presented."

I think Linda Eaton, director of collections at the Winterthur Museum, sums it up nicely: "The film obviously had a message that didn’t reflect the complexities of the issues."

Be forewarned.

More on the question of photographing public art

Peter Friedman has some thoughts on the public art copyright infringement lawsuit I mentioned a couple weeks ago here. He endorses the sentiment that "any scheme that involves paying to photograph seems antithetical to the public interest," and he also thinks the photograph at issue is a fair use "because [it] stands on its own as a creative work. [The photographer] has taken a work embedded in a sidewalk in front of a public building and made it into a beautiful image that evokes both dance and confusion in a world full of complicated instructions seemingly sending us in a myriad of different directions."

Justin Silverman of the Citizen Media Law Project (whose sentiment that paying to photograph is antithetical to the public interest Friedman endorses) has a more thorough analysis of the fair use issue, running through each of the four fair use factors that courts apply, and concluding that, "all in all, ... it's a hard call."

Turning back to the "public interest" question, though, I want to ask: what role does the fact that the work is public play in the analysis? Is it only antithetical to the public interest for artists who make public art to retain copyright to their work? What is it about public art that warrants keeping it "completely open to the public" (i.e., as lacking the same copyright protections that apply to other artworks)? Don't all the same issues regarding incentives to create apply in the case of public art? I just don't see the argument for treating Jack Mackie's sculpture here any differently than the way we treat any other work.

"Is title insurance a solution in search of a problem?"

At the Huffington Post, Daniel Grant takes a look at how art title insurance is faring. He points out that, when it first came on the market, "lawyers and those in the art trade heartily endorsed the concept" (well, not all of them), but now, "several years later, the opportunity to purchase artwork headache-free does not appear to have been picked up by many art collectors or dealers." He notes that the "policies are not inexpensive, costing between one and three percent of the value of the object, and the price is paid up-front, rather than in installments over the course of the policy." And he gets the following quote from Chubb's fine art manager: "the only people who want title insurance are the people who have an impediment to the title of something in their possession, and they are looking to transfer the risk to someone else."

I remain a skeptic.

Tradeoffs

The Boston Globe reports that "Brandeis University unveiled a series of cost-cutting proposals this afternoon that would eliminate about two dozen faculty positions, several undergraduate majors and graduate programs, and more than a dozen university-sponsored doctoral spots."

The proposals include "phasing out graduate degrees in anthropology, theater design and cultural production," and undergrads "will no longer be able to major in Italian studies and Hebrew, or minor in Yiddish, East European Jewish culture, and Internet studies."

So here's my question. If you knew that those jobs could be saved, and those academic programs kept intact, through the sale of a small number of artworks owned by the University, would you do it? Or is it more important that every single one of those works stays at Brandeis (rather than, say, another museum in Boston)? As I've said many times before (e.g.), what the "no deaccessioning for operating costs" rule does is prevent us from having to face those questions. It keeps us from having to think about the real-world costs of not selling. So again, it may be true that it's more important to have that 220th Eakins in storage than it is to have an anthropology department. But it seems to me that conclusion should have to be argued for, and not just assumed. (Brandeis philosophy professor -- and chair of the Future of the Rose Committee -- Jerry Samet made a similar point here.)

"Like an episode of 'Antiques Roadshow' gone horribly wrong"

The New York Post on a dispute over a $20,000 work by 18th century Scottish artist Sir Henry Raeburn.

"Why is copyright (suddenly) a hot topic for artists?"

Sergio Muñoz Sarmiento considers the question.

Next They'll Tackle the Nature of the Good

The Whitefish (Montana) Pilot: "Council looks at how to define 'artwork.'"

More on the Polaroid Sale

The Art Market Monitor poses some "unanswered Polaroid questions," citing A.D. Coleman's ongoing series of posts on the sale. (He's up to Update # 13.) Coleman links to a letter from the lawyer for the bankruptcy trustee, which says that two federal courts have "authoriz[ed] the sale of artwork free and clear of any and all liens, claims, encumbrances and interests of any kind whatsoever and the transfer of good, clear and marketable title," so I'm not sure where the (legal) controversy is.

Earlier post here.

"Will Expiration of Estate Tax Mean Less $ for Charity?"

The Nonprofit Law Prof Blog: "Uncertainty about the estate tax has caused all sorts of problems for estate planners and their wealthy clients. The estate tax expired at the end of 2010, but if Congress does nothing, the tax in 2011 will affect more people than it did in 2009. And Congress may do something - but no one knows what Congress will do and whether it will be retroactive. In addition to all the other planning problems this causes, charities are beginning to worry about a possible effect on charitable giving."

"If the forces of evil do indeed win, the worst that will happen is that Barnes's art will be seen by many more people"

"It's hardly the crime of the century."

Karen Carolan to ADAA (UPDATED)

Josh Baer: "Karen Carolan who recently retired as director of the Office of Art Appraisals Services for the IRS and the chair of the Art Advisory Panel in Washington has now been [named] executive director of appraisal services for the Art Dealers Association of America (ADAA)."

UPDATE: More from Carol Vogel in the NYT.

"[T]o point to the government's investigation of his own misconduct as grounds for a discovery extension...is truly the definition of chutzpah"

That's a quote from a recent brief from the AP, via this detailed update from Ben Sheffner on the Shepard Fairey criminal investigation.

"This is art given by people in the Central Valley for people in the Central Valley. It should stay in the Central Valley"

The Fresno Bee reports that "a local attorney is asking the state Attorney General's Office to investigate whether it is proper for the Fresno Metropolitan Museum to sell off its collection to satisfy its debts."

At this point, that's all it is: a request, by a private citizen, to investigate something. The requester's argument is basically the "public trust" argument: the museum, "in being granted nonprofit status, agreed that its assets were public and would be used for public purposes. If the museum ever dissolved, ... its assets should continue to be used for a public purpose. That would mean ... transferring the items to another public charity such as the Fresno Historical Society or the Fresno Art Museum."

Note that this argument would apply not just to the art, but to all the other assets of the museum -- computers, chairs, and holiday decorations.

More importantly, it's just not the case that being granted nonprofit status means you agree your "assets are public." Think of every church, hospital, private school, etc. Their assets do not "belong" to the public.

"Fresno is simply too big to be left without local access to art for its citizens"

Judith Dobrzynski points out that another Fresno art museum may be on the brink.

She quotes a message from the director saying the museum is faced with "some very difficult decisions about the next season of exhibitions and educational programs," that they've "tightened [their] belts" and have "already made some critical decisions and adjustments" but are "still in a very vulnerable position."

She ends with the "hope [that] the community mobilizes in a way it did not for the Fresno Met." That would of course be great. But if only there was a way for the museum to weather the storm and stay afloat. If only it were the case that museums have a lot of stuff in their basements that they don't use and which could perhaps be used to raise some much needed cash. After all, you don't want to be caring for and conserving objects and collections that aren't central to your mission, especially in times of financial crisis.

Oh well. Let them fail.

Linkage

• What's happening at Brandeis?
• How to spot a fake Giacometti?
• Judge in Italy orders return of Getty Bronze.
  

Another VARA Decision (UPDATED)

Via Clancco, a VARA ruling out of the Fifth Circuit. Courthouse News Service summarized the facts:

"A Texas store owner and two local artists who transformed a wrecked Oldsmobile into a colorfully painted cactus planter with the message 'make love not war' were unable to convince the 5th Circuit that their expressive artwork transcends a city ban on junked cars."

The decision is here. The bulk of the discussion is of the First Amendment implications of the case, but there is a brief section on VARA. The district court had held that the ordinance in question "does not require the destruction of a junked vehicle, merely its screening from general public view." The Fifth Circuit added the following:

"The preliminary statutory issue ... is whether the car-planter qualifies as a 'work of visual art' under the VARA. The statute excludes 'any merchandising item or advertising, promotional, descriptive, covering, packaging material or container' from protection. 17 U.S.C. § 101. The district court found that the car-planters are closely associated with [the store], are part of the store's corporate image and culture, and are a distinctive symbol of the [the store's] business. These findings, which are not clearly erroneous, indicate that the carplanters are 'promotional' material and thus outside of the VARA's protection. For this reason as well as that of the district court, we affirm the conclusion that [plaintiffs] failed to state a claim for relief under VARA" (citation omitted).

UPDATE: Some thoughts from Ray Dowd at the Copyright Litigation Blog.

"There’s really nothing like it in the history of photography. To sell it is criminal"

Earlier this week the NYT's Carol Vogel reported on the sale of the famed Polaroid photo collection:

"The company ... became a victim of the digital age, going bust first in 2001 and again in 2008. The second time, after it was bought by Petters Group Worldwide, Polaroid was caught up in a $3.65 billion Ponzi scheme run by the company’s founder .... To pay off creditors, a bankruptcy court in Minnesota is forcing Polaroid to sell a portion of its collection at Sotheby’s in New York on June 21 and 22. On offer will be 400 photographs by Ansel Adams alone, along with prints by [Chuck] Close, [William] Wegman, Robert Rauschenberg, David Hockney, Robert Frank, Robert Mapplethorpe, Warhol and Lucas Samaras. Together the 1,200 objects are expected to fetch $7.5 million to $11.5 million."

The Art Market Monitor asks: "Why is the Polaroid Collection being sold off in pieces? Is there no collector, museum or foundation that can afford the $7 to $11m the bankruptcy court would like Polaroid to raise for its creditors?"

Felix Salmon agrees: "The Sotheby’s sale constitutes the destruction of a lovingly-constructed artistic endeavor which was ultimately doomed by the greed and fraud engaged in by the chain of speculators and chancers who levered up and broke down the Polaroid company as though it were any other financial commodity. It’s a crying shame, and the art press should be railing against it, rather than talking it up as some kind of art-market milestone."

"We can’t have people bid at our auctions and disappear without paying"

Bloomberg: "Sotheby’s is suing two Chinese for payment on $270,300 worth of antiques they won at its Hong Kong sale in October 'to send a message it won’t stand for defaults,' said Asia chief executive Kevin Ching. ... The U.S.- based auction house is also pursuing another buyer who won five antique paintings and wouldn’t pay."

"When questioned specifically on the Mackie case, she commented that Mackie was simply protecting his copyrighted work from infringement" (UPDATED)

The Capitol Hill Seattle Blog has more on the public art copyright infringement lawsuit I mentioned earlier this week:

"We looked into the issue of whether it is common for public art administrators to allow commissioned artists to retain the copyright. Apparently, this varies by agency and by contract (so it would be possible for Seattle to negotiate to retain the right - they just do not). We questioned Ruri Yamplosky, the City of Seattle's Public Art Director about the reasons for having the artist retain the copyright. She noted that this is a generally accepted practice. When questioned specifically on the Mackie case, she commented that Mackie was simply protecting his copyrighted work from infringement."

As I mentioned in the earlier post, in my experience too the artist always retains the copyright.

UPDATE: Sergio says my experience is too narrow: "Some of the artists I meet and advise have in fact signed away their copyrights or unwillingly shared ownership of their copyrights. We have to remember that not all artists are lawyered up before being offered a commission. Many artists, particularly those in the early stages of their career, are so thrilled to be given an opportunity to make art and potentially be remunerated, that they will gladly sign and/or waive anything without seeking counsel."

A Mathematical Approach to Art Forgery

NPR had a story today on Dartmouth math department chairman Daniel Rockmore, who "has developed a technique that is helping to determine the difference between excellent copy and the real McCoy."

Sergio Muñoz Sarmiento says: "Now if only he could use math to figure out the solution to our current deaccessioning problem!"

Park West Update

Georgina Adam has the latest in the Financial Times on the Park West gallery lawsuits. The Art Market Monitor comments:

"Adam reports that Park West sells 300,000 works of art each year generating as much as $450m. That’s a huge amount of art. It either explains the number of complaints against the firm–with so many customers there are bound to be some disputes–or mis-representing the value of art is a great business to be in."

"Screwed by the town of Cary"

Political protest or work of art?

Photo here.

Linkage

• The mafia informer and the stolen Caravaggio.
• Lawsuit over Basquiat painting.
• Guggenheim settles with Malevich heirs.

Public Art Infringement Suit

Jen Graves on a copyright infringement lawsuit by the creator of a public artwork in Seattle against a photographer who took a picture of the work and then listed it with a stock photo agency.

Sergio Muñoz Sarmiento offers some thoughts:

"One, it seems the piece was created 'more than 30 years ago,' so [the photographer] may want to look into the exact date of creation and publication and find out if these were before 1977, or between 1978 and March 1, 1989. There are certain copyright notice requirements that must be met in these two situations to ensure that the 'work' does not fall into the public domain. (see Peter Hirtle’s public domain chart.) Secondly, it seems that if some public funds were used to cover some of the sculpture’s costs, and as a policy matter, this raises an interesting issue as to whether or not public sculptural works which are partially or entirely funded with tax-payer money should also be considered a government work. ... Thirdly, it would be interesting to investigate whether or not there was a written agreement between [the artist] and the commissioning party and notice whether or not there was a transference or sharing of the copyright to the sculpture."

On the third point, I'd be surprised if that were true. Artists typically hold onto their copyrights in situations like this, at least in my experience. But I guess you never know.

Linkage

• The Seasonality of Art Theft.
• Latest Art Loss Register Report.
• A meritless Degas authenticity debate?
• Grosz claim dismissed.
  

"The [Fresno] Met next week will review auction house proposals for sale of The Met's art collection"

About 3,000 objects are about to leave the public trust.

Background here.

"As the recession forces more museums to cut staff and programs, and even consider closing, critics of this policy complain it’s hard to justify"

Time Out Chicago on an exhibition at DePaul University Art Museum that's about deaccessioning.

From the museum website:

"Most museums remove items from their collections from time to time, a process known as deaccessioning. As a rule it is done discreetly, yet the process is fascinating and the issues it raises are profound: how is quality determined? are canons of taste immutable? This exhibition spotlights the deaccessioning of objects from DePaul's collection, inviting scholars from art history, philosophy, and anthropology—and visitors—to weigh in on the works of art and their fate."

As the Time Out article points out, "the most common arguments for rules limiting deaccessioning hinge on museums’ duty to hold their collections in the public trust" (although some close observers of this debate have somehow managed never to have heard that argument). But then why is it okay for "most museums" to remove items from their collections "from time to time"?

Linkage

• What is intellectual property for?
• $8 billion a year in art crime?
• Lawsuits over fake movie posters.

Magnum Sale

The NYT's Randy Kennedy reports that the Magnum photo agency has "quietly sold" its archive of more than 180,000 "press prints" ("the kind of prints once made by the collective to circulate to magazines and newspapers[; . . .] marked on their reverse sides with decades of historical impasto — stamps, stickers and writing chronicling their publication histories — that speaks to their role in helping to create the collective photo bank of modern culture") to MSD Capital, Michael Dell's private investment firm. MSD has agreed to deposit the collection with the Harry Ransom Center at the University of Texas at Austin "for study and exhibition, for at least the next five years." The purchase price was not disclosed, but supposedly the Ransom Center has insured the collection for more than $100 million.

The sale includes the prints only: "The image rights will be retained by [Magnum’s] photographers and their estates."

More here from Photo District News.

Linkage

• "FBI investigates fake Clementine Hunter paintings." Related post here.
• Should museums pay parking taxes?
• Controversy over "recently discovered" plaster casts of Degas sculptures.
• An art crime novel.
• An interview with a collector of The Uncollectable Artwork.
• The Ninth Circuit denied a rehearing in Von Saher v. The Norton Simon Museum, which was the subject of my most recent column in the Journal of Art Crime.

"People are afraid to discuss the very possibility"

In the wake of her NYT op-ed, Judith Dobrzynski discovers that deaccessioning is "the Third Rail of the museum world."

She also links to a radio show she did with Michael Rush, the former director of the Rose Art Museum, and you couldn't ask for a better example of the craziness of this whole conversation. The two museum guys (Rush and Charles Desmarais, deputy director of the Brooklyn Museum) spend the first part of the discussion going on and on about sacred cultural heritage and how works are held by museums in the public trust (Desmarais even compares them to your wedding ring, which you of course would never sell to pay the light bill). But then, towards the end of the program, when the conversation turns to deaccessioning to raise money to buy more art, they immediately shift into: "Oh well, that happens all the time, that's no big deal, etc."

Is there a secret pact among museum people to pretend that this BLATANT INCONSISTENCY isn't there?

"White House goes after charitable deduction, again"

Politico's Ben Smith reports that the proposed tax change is back in this year's budget, but says: "expect the same fierce pushback to the write-off change -- and the same assumption on the Hill that it's dead on arrival -- as last year." More here from Mike Boehm of the LA Times.

A post from the last go-round here.