More on the tough new deaccessioning rules in New York

From the Maine Antique Digest.  There are a number of comments from Anne Ackerson, director of the Museum Association of New York, including the following:

1.  She says that when the regents proposed criteria in the past, "they wrote a very restrictive number of criteria that were not really helpful and really did not mirror the professional practice across the country."  The new criteria -- which, as I've said, allow museums to deaccession whenever they feel like it (all they have to say is they're "refining their collection" -- and what deaccessioning doesn't do that?) -- do mirror the professional practice, and therefore "people are happy."

2.  And why did a "restrictive number of criteria" make people unhappy?  Because there's absolutely nothing wrong with deaccessioning:  "We want to make it very clear that deaccessioning is not a dirty word, that it's a legitimate activity."

So it's not that 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.

And it's not that if museums are allowed to sell works from their collections, somebody will say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?

Those are not concerns at all and I don't know where you ever got the idea that they were.

The real issue is "the whole use of proceeds from the sale of deaccession material."  That's "where a lot more education needs to take place."

And what that education consists of is repeating, over and over again, that it's fine to use the proceeds to buy more art but evil, repulsive, a crime against humanity, etc. to use the proceeds for any other purpose, up to and including avoiding having to shut your doors.

Why is that the case?

Because 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.

And if you sell it, somebody will say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?

Got it?

Smoke and mirrors.  Smoke and mirrors.

It's Not Funny

Photographer Glen Friedman has won his copyright infringement suit against Mr. Brainwash on summary judgment.  Background here.

"On the way out of the courthouse, he attacked a photographer with his cane."

The New York Times on "longtime forger" William Toye.  Background here.

"Gillman promised that none of these eleventh-hour tactics would pan out ..."

"... and asserted that the institution is on track to reopen in its Tod Williams Billie Tsien-designed new home in late spring 2012."

"The Barnes Foundation will spend more than $300,000 to revitalize its grounds and structures in Merion in the coming months . . ."

". . . in preparation for the continued use of the arboretum and the galleries."

Thousands!! Millions!!

Lee Rosenbaum reports that Dan Monroe, executive director of the Peabody Essex Museum, will be the next president of the AAMD.  Lee says "he has a proven track record as a leader and thinker on hot-button problems facing the museum profession."  When it comes to deaccessioning, Monroe is a committed slippery-slopist.

"To safeguard Erie's cultural heritage, we need the library to budget money for its collection, hit by cuts every year since 2006."

The repulsive editorial board of the Erie Times-News comes out in favor of the Erie County Library's proposed Hassam sale.

"We need the money. It was a gift. And if you're a receiver of a gift, you can do whatever you please with it."

The debate over the Erie County library's Childe Hassam continues.

Why don't they just think of it as kind of a Humane Society -- maybe the work can be loved by someone else?

How to sell a fake a Campendonk for 500,000 euros

First, get a fake Campendonk.

Steve Martin bought (and sold) a work that was "probably created by a ring of criminals who have been duping art buyers for decades."

It's a tough fundraising environment out there

Ian Frazier on the creative approach taken by The Queens County-Abilify Library Museum and Center for the Performing Arts.

Forget tattoos . . .

How about copyrighting a nose job?

Ink Think

Lots of interesting commentary on the Hangover II tattoo case.  David Post says it "precisely mirror[s]" a hypothetical he uses in his Intro to IP class.  He thinks the tattoo artist "has a very strong infringement claim"; the trickiest question is "whether Mike Tyson’s face is a 'tangible medium of expression,'" but "by my reckoning, the tattoo here clearly fits the bill: once it’s on Tyson’s face, it can be perceived by others for more than a 'transitory duration.'"

Mike Madison and Ann Bartow both think the tattoo artist should lose -- Madison because "human skin is not a 'tangible medium of expression' for copyright purposes," and Bartow on grounds of "copyright scope. My understanding is the Hangover tattoo is not identical to Tyson’s. It may be similar [but] I wouldn’t give the artist much protection beyond exact copying."  Aaron Perzanowski pushes back a bit:

"Can you point to any statutory support or case law that articulates the 'medium of expression' as a discrete requirement for protection, apart from fixation and originality? And can you provide any support for the notion that if such a requirement exists, it implies some sort of human body exception?
There might be good reasons for the plaintiff to lose in this case – a lack of originality, implied license, fair use – but I don’t think Hangover II presents a big enough problem to formulate new doctrine."

"Law-enforcement officials around the country are prosecuting graffiti artists with harsher sentences than ever"

The Wall Street Journal has the details.

"The suit isn’t frivolous, however, legal experts say."

The New York Times had a front-page story over the weekend on the Mike Tyson facial tattoo lawsuit, mentioned earlier here.

"It also, if affirmed, could shake the foundations of appropriation art."

In his latest Copyright Law column in the New York Law Journal [$], Robert Bernstein discusses the Prince-Cariou decision.  His conclusion:

"Much is at stake, both for the parties and for those similarly situated.  It should be kept in mind, however, that, in copyright, there is no clear separation between creators and users.  New works are rarely created out of thin air.  Thus, we may very well find, a year or so from now, that the Second Circuit has given the appropriation artist more 'breathing space,' albeit well short of the carte blanche he seeks."

"What curator worth his or her salt couldn't come up with a plausible argument that the deaccession of any item or group of items would not refine a collection?"

Amy Goldrich on the new deaccessioning rules:

"[A]lthough the new rules appear to require a more carefully justified decision to deaccession, at least one criterion -- accomplishing refinement of collections - could end up being a virtual 'get out of jail free' card."

Still more on the tough, new deaccessioning rules

Sergio Muñoz Sarmiento:  "Among the more perplexing of criteria is the requirement that the art 'item has failed to retain its identity.' What the hell does this mean? It was once a painting but it is now a frisbee?"

Judith Dobrzynski:   "Not bad."

I find the praise of the new rules pretty funny.  I can't emphasize enough how little the new rules do, how minimal the changes are.

They prevent the use of sales proceeds for operating expenses -- but that was always the case.  That's not a change.

They "told museums and historical societies that may may not deaccession objects unless they meet one of ten specific criteria" -- but one of those criteria is "refinement of the collection," which as I've said is no different than saying "because we felt like it."  So as a practical matter, that's not a change either.  The ability of museums to deaccession is not an ounce more restricted than it was before these rules were passed.

They do add a requirement that each museum include in its annual report a list of all items deaccessioned in the past year.

Let me know when the parade is.

More on those tough new deaccessioning guidelines (UPDATED 2X)

From Cristina del Rivero:

"What, if anything, does that last criterion [i.e., refinement of collections] accomplish? Arguably nothing since as drafted it is completely open to abuse and will neither ensure possession in the future (donors' big fear) nor guarantee public access to artworks held in 'public trust' (i.e., remedying the incomprehensible reality that collections are largely in storage while museums are increasing on the verge of financial collapse and closure)."

Background here.

UPDATE:  Lee Rosenbaum concedes that ""refinement of collections' leaves a lot of wiggle room" and that "one person's 'redundancy' is another person's 'depth,'" but still she describes the new (now passed) rules as "allow[ing] museums to dispose of works from their collections only if at least one of the following 10 criteria is met."  The emphasis on "only" is hers, but I can't imagine any possible deaccessioning that cannot be described as "refining the collection."  Isn't it true, almost by definition, of any sale by a museum?  It's just more smoke and mirrors.

UPDATE 2:  The New York Times reporting on the subject continues to misleadingly suggest that, until this latest set of rules was adopted, museums could use sales proceeds for operating expenses.  That's not true.

Fisk Follow-ups

I flipped through the Attorney General's brief in the Fisk appeal.  No surprises, but I continue to scratch my head at the argument that "the Collection obviously will not be available to the public in ... the South ... when it resides in Bentonville, Arkansas."  This could be an example of this phenomenon, but I always thought Arkansas was part of the South.

Much more interesting is this law review article by BU's Alan Feld:  Who Are the Beneficiaries of Fisk University's Stieglitz Collection?  The whole thing is worth reading (and I thank Terry Martin for the pointer), but I'd like to highlight a couple of points here.

First, on why the debate should be different when it's a Brandeis or a Fisk that seeks to sell work:  "When a university rather than a museum owns artwork, ... the institutional calculus becomes more complex.  The university appropriately considers the educational value of the artworks, their relationship to the core educational mission, and the university's capacity to derive maximum educational utility from continued ownership of the work.  Other educational needs may deserve higher priority.  The public reaction to any proposed sale often fails to balance the school's multiple obligations."  (But it's always so much easier to be OUTRAGEOUSLY OUTRAGED than to balance multiple obligations.)

Next, he reminds us that the Fisk-is-selling-the-work narrative doesn't really accurately describe what's going on here:  "Under the proposal, Crystal Bridges would pay Fisk $30 million for an undivided half interest in the collection.  Fisk and Crystal Bridges each would display the collection for six months of each year.  The proposed sale to Crystal Bridges thus would reallocate some of Fisk's ownership rights to a public institution pursuing an arts education mission, keeping the works out of private hands, while enabling Fisk to proceed with its proposed educational improvements."  (I know, repulsive, right?)

He has the following answer to those who "fear that the failure to respect donor wishes after they make the gift will discourage subsequent donors from donating gifts to charity:  "[T]his disincentive should have only modest effect on rational donors who see that the modification of conditions results from the combination of changed circumstances and the passage of a long period of time."  (Or, as Jack Siegel put it, "Let's get real.")

He also points out that we are often dealing with "thin or cryptic evidence of donor intent":  "If cy pres requires a court to ask, 'what would the donor do in the face of changed circumstances?,' the answer comes close to guesswork in such cases.  We simply cannot know precisely what either Stieglitz or O'Keeffe would have directed had they known of Fisk's current economic difficulties. ... Would they have favored the sale to Crystal Bridges of a half interest in the collection?  We do no know."  (I made a similar point -- that "we actually have no idea what [O'Keeffe] would have wanted had she known Fisk would end up in the condition it's in" -- here.)

He ends up arguing for a pragmatic approach:  "The institution should maintain fidelity to donor conditions until circumstances have changed.  At that point, an inquiry broader than donor intent should ensue.  The court ... should identify the parties whose interests bear on the matter at hand -- including, but not limited to, the explicit concerns that the donors expressed when they made the gift -- and determine the best current outcome."

Strict Scrutiny

Also in the Maine Antique Digest, an update on the New York Board of Regents ad-hoc committee's proposed regulations for deaccessioning.  The thrust of the article is that new "criteria" for deaccessioning are being developed, but, as I noted here, since one of the "criteria" is "refinement of the collection," they may as well just say "because we feel like it."

So the conversation will now go something like this:

New York State (deeply, deeply concerned with the loss of works held in "the public trust"):  "Why did you sell that Renoir?"

Museum:  "To refine our collection."

New York State:  "Okay, you pass."

Wow. Scary stuff.  The museums must be shaking in their boots.

Some quotes by the executive director of the Everson Museum of Art in Syracuse towards the end of the article kind of give the game away.  He praises the proposed rules because they "avoid[] any ... conflicts that might exist between regulations that we follow as a part of our professional accreditation and associations, and what is required of us here in New York state."  The museums were interested in "mak[ing] sure we don't get over-regulated."  The new rules "pretty much lin[e] up with what we are already doing," whereas the guidelines "as they existed before still needed work to refine" in order to make sure that they "truly did line up with what we already do as a part of" the AAM and AAMD.

So the museums have succeeded in guiding the process to a place where the rules make them do what they were already doing.  Except now those rules -- that exercise in smoke and mirrors -- will have the force of law.

MAD on Prince-Cariou

I'm quoted in this Maine Antique Digest piece on the Prince-Cariou decision.

Fisk News

Forfeiting his neutrality, the Tennessee Attorney General has filed his appellate brief in what Nashville Public Radio accurately calls the "drawn out Fisk art case."  The brief is here.  I haven't read it yet, but in the meantime:

Lee Rosenbaum has a fairly testy exchange with the executive director of the Crystal Bridges Museum, which is attempting to enter into a collection sharing arrangement with Fisk (and we all know that sharing arrangements between museums are a terrible thing).

And the Charity Governance Blog's Jack Siegel has a response to the Attorney General and others who argue the decision "will deter donors from making gifts to Tennessee charitable institutions out of concern that their wishes will not be respected after they are dead":

"Let's get real here.  We are just as much in favor of honoring donor intent as the next guy, but does the Tennessee Attorney General really believe donors are busy reading Chancellor Lyle's prolific output?  ... But even if the Tennessee Attorney General is correct about donor reaction to Chancellor Lyle's ruling, don't her collective rulings in this case send a clear message: Donor beware.  If you are going to tie up property for the ages, you had better clearly state your intentions and build flexibility into the restrictions, or those who come after you will ignore your wishes.  At some point, donors have to be responsible in how they deed property.  Society should not have to countenance donor sloppiness by wasting additional resources--imagine the legal fees that have been devoted to this battle.  There is nothing wrong with a message that says we will honor your intent to the extent you clearly express it, but after that, all bets are off."

I had some thoughts on donor intent here (among other places).  As I asked there, what if the donor's intent was that the collection be destroyed after some number of years?  Or that the works be sold off and the proceeds used for operating expenses?  Is the rule really that the donor's intent is always the be all and end all?  Or does it only matter when it's a way to prevent work from being sold (or put another way:  are the Donor Intent Police just the Deaccession Police in a different uniform?).

"The folk art museum took on $32 million of debt to construct the 53rd Street building. But attendance never met expectations, and after sustaining investment losses in the financial crisis, the museum defaulted on its debt."

The NYT's Kate Taylor reports that MoMA is buying the American Folk Art Museum building on West 53rd Street.  "The folk art museum will continue to operate in its much smaller Lincoln Square branch."  Jerry Saltz blames the architecture.  Justin Davidson disagrees (" no architectural finesse can compensate for inadequate management, overreach, poor timing, or bad luck").

In other museum space-related news, the NYT's Carol Vogel reports today that the Met will take over the Whitney's building when the latter opens its new space in 2015, "according to the terms of a real estate agreement that the museum boards are pursuing."

And in other museum failure-related news, the Jersey City Museum is facing “imminent” foreclosure by its bank.

"Now, the Met and Jan Cowles have filed a complaint in the U.S. District Court of Manhattan, seeking a declaratory judgment that would force Wylde to hand over the painting to the museum."

The Met enters the fray over the Mark Tansey painting that was sold by a collector even though it was partially owned by the museum.  Background here.

Missing

I mentioned last week that the Friends of the Barnes were good enough to provide a link to the Foundation's brief seeking dismissal of their latest challenge to the move.  But what I didn't notice is that they didn't provide a link to the whole brief: a reader alerted me to the fact that the copy of the brief they linked to omits several pages, including the part where the Barnes argues for recovery of its attorneys' fees.  If you follow the link, you'll see it jumps from p. 43 to p. 49; the missing pages include the following:

"Case law has established for more than a decade that persons and organizations in the same position as these petitioners have no standing to bring an action of this type.  Indeed, many of these very same petitioners have been denied standing by this Court in previous stages of this litigation or other litigation involving The Foundation, some of them more than once.  These petitions were brought in total disregard of this established law, as well as in the face of a public record that refutes the petitioners' core contention that they seek to bring 'new evidence' to the Court's attention.  In particular, as set forth in detail above, the 'new evidence' involving the Attorney General's position regarding The Foundation's 2002 Petition, the Attorney General's and Governor's role in persuading Lincoln to withdraw its opposition to the 2002 Petition, and the facts surrounding the Capital budget issue, have been well-known and widely reported for years.  There was simply no basis and no justification for bringing these arbitrary and vexatious petitions. ... This is particularly egregious in that many of these petitioners ... have been through this before and know full well that they have no standing to raise these issues and that these issues have been fully litigated.  ...  It is well past the point where these serial litigations and others similarly situated should accept that they lack standing to interfere in The Foundation's affairs" (internal citations omitted).

"The mere fact that the present petitioners do not agree with the position the Attorney General took does not mean that there was any impropriety; it just establishes a difference of opinion."

The Friends of the Barnes kindly provide a link to the brief the Barnes Foundation filed last week seeking to dismiss the most recent action challenging the move.  They really hammer the Friends on the standing issue, and honestly it's hard to imagine the case surviving past this round.

This portion of the brief also caught my eye:

"[The claims that the Attorney General 'forfeited his neutrality'] reveal a misunderstanding of the ... Attorney General's role in this case. . . . The Attorney General must look out for the interests of the Commonwealth's citizens as a whole, balancing the needs of various constituencies as he determines what would be best for the public charity at issue.  His job is not to remain neutral, but instead to advocate the result he concludes is best.  Here, he concluded that the relief sought in The Foundation's 2002 Petition was in the best interests of The Foundation and the public it serves.  He reached that conclusion only after what Attorney General Pappert described as numerous meetings with the parties involved and a review of thousands of relevant documents.  Before agreeing to support The Foundation's request for relief, Attorney General Fisher sought and obtained amendments to The Foundation's petition that would satisfy his demands.   Then he and his successors publicly announced support for the requested relief in an answer to The Foundation's amended petition and in other public statements, including Attorney General Pappert's statement in open court during the hearing" (emphasis added, citations to the record omitted).

I made a similar point here:

"I've never understood this notion that it was somehow wrong for the AG to push for the move.  Once he decided that, all things considered, that was the best outcome, what was he supposed to do?  When Lee Rosenbaum calls, for example, for 'Super Cooper' to block the Fisk deal, isn't she calling on him to take a side in the dispute?  Does his having done so open the court's decision up to challenge on the ground that the attorney general favored one side in the dispute over the other?  The Friends petition accuses the AG of 'forfeit[ing] his neutrality,', but, if he has, then hasn't Super Cooper done so as well?  It's just a fundamental misunderstanding of the attorney general's role."

Plesner Prevails (UPDATED)

Paul Schmelzer, who's been doing a great job following the story, has the details.

UPDATE:  Plesner reacts:  "I am absolutely overwhelmed with joy, and I cried when I heard the great news."

Speaking of wallets . . .

A timely post from Rebecca Tushnet:  Is copying theft?

They're just making sure people's wallets aren't stolen, right?

The New York Times has a story today on Righthaven, whose business model is suing bloggers and others who use material from newspapers without permission.  They've filed more than 200 copyright lawsuits over the last year:  "Typically, the suits have been filed without warning. Righthaven rarely sends out notices telling Web sites to take down material that does not belong to them before seeking damages and demanding forfeiture of the Web domain name."

Tattoo You (UPDATED)

Here's an interesting one:  the tattoo artist who did Mike Tyson's distinctive facial tattoo "has sued Warner Bros. over the similar-looking facial art on Ed Helms' character in the upcoming comedy 'The Hangover: Part II.'"

Lawprofs Kal Raustiala and Chris Sprigman discuss the case over at the Freakonomics blog.  They point out, first, that as "works of graphic art," tattoos are subject to copyright, and add that, as attached to Tyson himself, there is probably an "'implied license' between Tyson and [tattoo artist] Whitmill that Tyson will appear on camera now and again, and therefore so would the tattoo."  But the problem here is that, in the new movie (as opposed to the first Hangover), the tattoo appears on Ed Helms's face (not Tyson's).  The "bottom line," they say, "is that Whitmill’s claim is not frivolous, and he may well get a big payday from the studio just to make him go away."

UPDATE:  George Wallace gets off a good line.

More on a Copyright is not a Wallet (UPDATED)

A couple of interesting responses to my question before the weekend about copyright and theft.

First, Sergio Muñoz Sarmiento has an entertaining post that, I think, boils down to the claim that "property law and intellectual property law [aren't] synonymous," which was precisely the point of my hypothetical (or one of them).  He says, in considering a case of possible copyright infringement, "we use intellectual property law (with the term intellectual being key, meaning that it is, unlike real property, intangible), and thus, we apply copyright’s 'fair use' schema and its four non-exclusive factors."  That's quite right, and there is no analogous schema when it comes to personal property:  we don't ask whether taking someone's wallet was educational, or a parody, etc.

Michael Rushton responds too, focusing on the incentives to the appropriator:  "Here's the policy problem: if I could take someone's wallet and they would still have their wallet, then I could quit my day job. Why bother going to work to earn money to put in my wallet if I can just spend my day as a pick-pocket, and do so with a clear conscience, since my marks haven't really lost anything - they still have their wallets (and now I do too)."  But he adds that "it is not an all-or-nothing problem, since some appropriation, some fair use, increases creators' abilities to make new and interesting work. The optimal fair use provisions establish a balance between maintaining incentives for new work and for the ability to build upon existing work."

I think both Sergio and Michael are exactly right to stress the idea that what's required in the copyright context is a balancing of interests.  So it doesn't seem helpful to me to just scream "BUT THAT'S MY WALLET."  The question we're trying to answer in the copyright context is when is it okay for me to take your wallet, and when it's not.

UPDATE:  More from Colberg.

"Why is stealing a wallet not appropriation art?"

Joerg Colberg issues a challenge to the art world.

Without taking a position on any particular example of appropriation, let me answer his question with a question:

What if, after I took your wallet, you still had your wallet?

Would it change your view at all?  Would you still call it theft?

Concepcion Sentenced

My friend Jo Laird, who represents one of the victims, emails that dealer Giuseppe Concepcion was sentenced yesterday to 51 months in federal prison for selling fake art:  "Judge McMahon made clear that she intended the sentence to be severe both because she found Concepcion's actions to be 'despicable' and because she wanted to send a signal about this type of crime, which she described as a reprehensible betrayal of trust."

"A Brief History of Art Forgery"

A Noah Charney podcast.

On the Maine Mural Removal

I'm a little late getting to this story, but a federal judge ruled last week that it was not a First Amendment violation for the Governor of Maine to order the removal of a mural from a state Labor Department office:

"Elected state leaders ... have the right to decide what to say and what not to say, and by extension during their term in office, they are authorized to decide what the state of Maine says or does not say about itself. State of Maine Governor Paul LePage’s removal of a mural from the walls of a state office because he disagreed with its contents may strike some as state censorship; instead, it is a constitutionally permissible exercise of gubernatorial authority. Though his action provoked a storm of constitutionally-protected speech with a stark division between those who applauded his decision as rebalancing the state of Maine’s message to the business community and those who condemned his action as muzzling opposing viewpoints, the resolution of this vigorous debate must not rest with judicial authority of a federal court. It must rest instead with the ultimate authority of the people of the state of Maine to choose their leaders....

"It is not the business of the federal court to decide what messages the elected leaders of the state of Maine should send about the policies of the state, to tell a prior administration that its own artwork is too slanted to continue to hang on state office walls, to tell the current administration that it must not remove or replace a prior administration’s artwork, or to tell a future administration which piece of state art, the new or the old, must stay or go. The messages from the state-owned works of art are government speech and Maine’s political leaders, who are ultimately responsible to the electorate, are entitled to select the views they want to express."

Lawprof Eugene Volokh says that "sounds quite right."   News story here.  A question from Sergio Muñoz Sarmiento here.

"The News Media’s Misrepresentation of the Art Criminal"

A four-part series, from ARCA alum Katherine Ogden.

"Police Nab Europe's Most Notorious Art Thief — And His Mom, Too"

Story here.  Related post here.

"I didn’t speak up when they came for the appropriationists…"

Artist Brian Dupont on the Richard Prince decision. [via]

"There is little question that what constitutes fair use is still in the eye of the beholder after this decision."

Nicholas O'Donnell and Mitchell Stein of Sullivan & Worcester on the Richard Prince decision:

"What is clear after Cariou, however, is that artists, museums and galleries involved in any appropriative art are in a more precarious position than ever before.  ... [T]he potential for a chilling effect on such works is clear; the threat of damages of this sort may simply steer artists away from creating, and museums and galleries away from showing, anything close to the edge.  Would a gallery with the chance to exhibit the newly-created still lives and collages of Picasso showing Le Journal, or a museum with the chance to show the contemporary work of Duchamp and its appropriation of the Western canon, have taken the chance if privy to this decision?"

Fisk Appeal

The Tennessean's Jennifer Brooks has the latest on the appellate proceedings in the Fisk-O'Keeffe case.  Fisk filed its appellate brief on April 7.  The Tennessee Attorney General -- non-neutral Super Cooper -- has until May 9 to file a response, and then Fisk has until May 23 for its reply. Brooks says the initial brief argues that "the $20 million endowment [ordered by Judge Lyle] would generate $1 million a year, when it costs Fisk [only] $130,000 annually to care for the 110-piece collection."

Nadia Plesner's Day in Court

Her take on it here.

Rehearing En Banc Denied for Chapman Kelley (UPDATED 2X)

See here.  Background here.

UPDATE:  The Art Newspaper's Martha Lufkin has more, including that Kelley plans to appeal to the Supreme Court.

UPDATE 2:  The Council for Artists' Rights John Viramontes is not happy.

Space Invader Arrested

Ben Davis has the details.

"It will be a substantial cut, depending on the size of the organization."

The Washington Post:  "A number of Washington arts organizations are reeling because Congress cut the National Capital Arts and Cultural Affairs program by $7 million from $9.5 million in the last agreement for fiscal 2011."

"Mr. Wildenstein ... is enmeshed in at least a half-dozen lawsuits"

On the front page of today's New York Times:  Venerable Art Dealer Is Enmeshed in Lawsuits.

The Art Market Monitor says "the issue is that Wildenstein has acted as more than an art dealer for many clients. They stored art in the Wildenstein vaults and trusted to Guy to administer their affairs."

Piss Christ "attacked with hammers and destroyed"

In France.  ARTINFO has the details.  More here from the Guardian.

Ann Althouse offers 11 thoughts.

"Much of the money from that sale has been put toward a new $11.9 million reserve fund, one that the academy can turn to when operating income falls short of covering its $4.6 million budget."

The New York Times has a story on how the National Academy Museum is slowly coming back to life after being sanctioned by the AAMD for selling a couple of works three years ago.

The story explains that the sale "was controversial" because museums "are viewed" as "public trusts" since they "function as sanctuaries" for "cultural and historical artifacts."

No attempt is made, however, to reconcile that "view" with these others, also expressed in the Times, just a few months ago:

•  Deaccessioning is "a normal act," and to be "encouraged."
• "Deaccessioning is a healthy part of the management of any museum collection."
• Deaccessioning is "kind of a Humane Society. ... Maybe some of these works can be loved by someone else."

We'll have to await word from the Times as to whether this "is viewed" as an exercise in smoke and mirrors.

"The Village of Greenwood Lake has agreed to repeal a six-month ban on public displays of art that prompted a local artist to sue the village on First Amendment grounds."

"The repeal was a condition of a settlement between the village and ... Warwick resident Melanie Gold, who filed a lawsuit in U.S. District Court in February."

Moving the Barnes from Merion to Philadelphia is socialism or something

Michael Smerconish:  "The relocation of the Barnes will be the single greatest cultural enhancement to Philadelphia during our lifetimes," but it's still wrong.

Linkage (crimes and misdemeanors edition)

• Seven year prison sentence for mastermind behind massive Giacometti forgery ring.
• Gallery owner indicted for selling fake prints.
• Does street art violate unfair competition laws?
• 1,000 items stolen during Egypt uprising.

"Probably they can’t stop it, they won’t be able to stop it. And then in years to come people will get used to it."

Robert Redford on the Barnes move.

But will they ever get used to moving a work from a stairwell to its own room?  It's impossible to predict.

"Because the art industry is largely unregulated, it is particularly important to hold accountable those who fraudulently handle works of art entrusted to them."

Another Salander-related conviction.

Only Wrong When Brandeis Does It

The Musée Picasso has earned €16m from loans of work.

I wonder what the hall monitors will say.

Gallery Sued

Courthouse News Service reports that artist Dana Melamed has sued Priska C. Juschka Fine Art.  She claims they owe her more than $68,000 from works sold, they gave discounts without her permission, and are refusing to return works worth $400,000.  She also asks for $1 million in punitive damages.

Paddy Johnson says "certainly, $1 million in punitive damages seems excessive. Then again, so does under-representing the amount a work sold for and still failing to pay the amount owed."

Speaking of Warhol . . .

Stolen Mick Jagger print recovered.  Story here.

Another Warhol Authentication Suit

Josh Baer reports that "Addison Thompson has sued the Andy Warhol Foundation and Authentication Board and Museum alleging, 'fraudulent concealment and violations of the Sherman and Donnelly Acts arising from defendants engaging in a conspiracy to monopolize the market for the authentication, offering and sale of artwork by Andy Warhol.'"  Presumably, it's about this.  Says Josh:  "Having seen the Joe Simon case results this one probably won't go Thompson's way either."

More on the Gauguin Attack

The Gauguin attacked at the National Gallery last week "sustained no damage."

The attacker also explained why she attacked the painting:  "I feel that Gauguin is evil. He has nudity and is bad for the children. He has two women in the painting and it’s very homosex­ual. I was trying to remove it. I think it should be burned. I am from the American CIA and I have a radio in my head. I am going to kill you."

A conversation with Cariou's lawyer

April 20th at VLA.  Details here.

"Screaming 'This is evil,' a woman tried to pull Gauguin’s 'Two Tahitian Women' from a gallery wall Friday"

A painting is attacked at the National Gallery.

Get Artelligent

One more reminder about this interesting-sounding event:  Understanding Art as an Asset.

The Richard Prince Deposition Book

Or, by its full title:   Canal Zone Richard Prince YES RASTA: Selected Court Documents from Cariou v. Prince et al, including Excerpts from The Videotaped Deposition of Richard Prince, The Affidavit of Richard Prince, Competing Memoranda of Law in Support of Summary Judgment, Exhibits Pertaining to Paintings and Collages of Richard Prince and the Use of Reproductions of Patrick Cariou's YES RASTA Photographs Therein, and The Summary Ass Whooping Dealt to Richard Prince by the Hon. Judge Deborah A. Batts, as compiled by Greg Allen for greg.org in March 2011.

You can order your copy here.

"To say that Cariou’s work was used as 'raw material' is not to demean the work; it is simply a factual description of how the photographs were used."

Joy Garnett on the Richard Prince decision.

Important New AAMD Policy on Deaccessioning

The AAMD announced a major change to its deaccessioning policy today.  From now on, sales on Mondays, Wednesdays, and Fridays are prohibited; sales on Tuesdays and Thursdays are allowed.

A spokesman for the AAMD said it was important to prevent sales on Mondays, Wednesdays, and Fridays because 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.

He added that, if such sales are allowed, somebody will say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?

It's just a very, very, very, very, very, very core principle that museums conserve their works in trust for the community.

When asked why the same considerations don't apply to sales on Tuesdays and Thursdays, the spokesman said, "Those sales are different."

When asked how they are different, the spokesman replied, "Shut up. How would you like to be sanctioned?"

For more on this breaking story, see here.

Barnes News

The hearing in the Barnes case yesterday seems like it was a non-event:  the Judge set a briefing schedule; the Barnes and the Attorney General have until mid-April, then the Friends have until the beginning of May to respond.  Stephan Salisbury has a report in the Philadelphia Inquirer.

He also reports that yet another petition opposing the move was filed this week, this one by Richard Ralph Feudale, a lawyer and the author of Barnes Rune 2012 (Decoding the Mysteries of Pennsylvania's Barnes Foundation, A Special American Place).

Salisbury also has this quote from someone from the attorney general's office:

"He argued that his office, charged with protecting the public interest in regard to nonprofit charitable organizations, was not a neutral observer.  'We determine the public interest,' he said. 'We're an advocate. In this case, we advocated along with the Barnes Foundation [for the move], because we thought it was the best way . . . to maintain the Barnes.'"

I think that's exactly right.  I've never understood this notion that it was somehow wrong for the AG to push for the move.  Once he decided that, all things considered, that was the best outcome, what was he supposed to do?  When Lee Rosenbaum calls, for example, for "Super Cooper" to block the Fisk deal, isn't she calling on him to take a side in the dispute?  Does his having done so open the court's decision up to challenge on the ground that the attorney general favored one side in the dispute over the other?  The Friends petition accuses the AG of "forfeit[ing] his neutrality" (e.g., paragraph 22), but, if he has, then hasn't Super Cooper done so as well?  It's just a fundamental misunderstanding of the attorney general's role.

"We thought it fell under fair use."

Forbes.com reports that, in order to distinguish synthetic DNA from its natural counterpart in an experiment they were doing, geneticist J. Craig Venter’s team coded several famous quotes into the synthetic version, including James Joyce’s: “To live, to err, to fall, to triumph, to recreate life out of life.” But, "after announcing their work, Venter explained, his team received a cease and desist letter from Joyce’s estate, saying that he’d used the Irish writer’s work without permission."

As James Grimmelmann notes in the first comment here, "you would think the Joyce estate had learned nothing from Shloss v. Joyce" (about which see here).

"I thought I better recover the photograph before he goes underground, destroys it, or tries to sell it to someone who is not going to return it."

An important Czech photo, stolen from a Prague museum earlier this month, is found.

Barnes Update (UPDATED 2X)

The Philadelphia Inquirer's Stephan Salisbury reports that the Barnes Foundation and the Pennsylvania Attorney General have filed their responses to the Friends of the Barnes's latest attempt to reopen the case opposing the move: "In [the latest] petition, the Friends of the Barnes asked Judge Stanley R. Ott, who has presided over the case since 2002, to take another look, based largely on quotes from the 2009 documentary movie The Art of the Steal. The Barnes and the attorney general argue in their responses that there is nothing new in the opponents' legal briefs or the movie, and that the Friends of the Barnes and its members cannot intervene in the case anyway because they have no legal standing."

UPDATE: The Main Line Times has more, including that the Barnes and the AG have asked for their attorney's fees. I'm not surprised.

UPDATE 2: LA Times art critic (and Art of the Steal talking head) Christopher Knight discovers a "surprise" in the motion: one of the five Philadelphia Inquirer stories cited in support of the proposition that the information in the petition is "not new" is from 2005, five months after the court ruled that the collection could be moved. That's true, but it's worth noting that there was a second petition filed in 2007 (by some of the same parties who've brought this third suit), which the court dismissed three years ago. So the 2005 article is "not new" in the sense that it preceded that second lawsuit.

"The case illustrates the financial risks of the art market and highlights the difficulty of valuing an artist's work."

The Wall Street Journal's Robert Frank has more on Norman Waitt's lawsuit against Gerald Peters Gallery.

We Demand That You Not Close the Museum You Are Not Closing (a continuing series) (UPDATED)

Brandeis is renovating the Rose. Judith Dobrzynski has the story.

UPDATE: The Boston Globe has more: "major renovations" to protect the collection "for the long haul."

Big Fair Use News: Patrick Cariou Prevails in his Copyright Lawsuit Against Richard Prince (UPDATED 3X)

Rob Haggart has the details. The decision is here. Background, including predictions of an easy win for Prince (in response to which someone says: "I wouldn't be so sure: litigation is always uncertain, and never more so than when it comes to appropriation art"), here. Back with more after I've had a chance to read the decision.

UPDATE: I've now read the decision, and the key bit is that the court rejected the fair use defense because, as Artnet's Walter Robinson puts it, "Prince's works do not specifically comment on Cariou's originals." (Robinson says: "Face it, the notion of 'appropriation' just doesn't play well in our law courts.") The NYT's Randy Kennedy writes that "Judge Batts wrote that for fair-use exceptions to apply, a new work of art must be transformative in the sense that it must 'in some way comment on, relate to the historical context of, or critically refer back to the original works' it borrows from."

That hasn't always seemed to be a requirement in other fair use cases. In Blanch v. Koons, for example, the Second Circuit noted that Koons used "Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media" (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch's image). Quoting the Supreme Court's Campbell decision, the court said the test of transformativeness is whether the later work "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." It's hard to imagine, to take another example, Shepard Fairey's Obama image passing muster under Judge Batts's standard. (That image was many things, but a commentary on the underlying photo was probably not one of them.)

Sergio Muñoz Sarmiento says the decision "give[s] credence to my theory that courts are increasingly becoming agitated with this 'free-for-all' mentality of certain artists when it comes to appropriating and commercializing off of other artists’ works."

The Copyright Litigation Blog's Ray Dowd says "the opinion is noteworthy and will basically EXPLODE the contemporary art world."

Charlie Finch says "having a judge as an interpreter of the meaning of art remains Kafkaesque: we can trot out the entire oeuvre of Andy Warhol, Robert Rauschenberg and a thousand other artists as violators of Judge Batts’ standard. But what of photographer Cariou? Is he not an artist, as well?"

Photo Teacher Paul Turounet "wonder[s] what this might mean for artists such as Thomas Ruff, Penelope Umbrico, Doug Rickard and Michael Wolf, appropriating imagery from the internet, including various search engines, Google Streetview and Flickr?"

Finally, good summaries of the decision from The Art Newspaper's Charlotte Burns and David Walker of Photo District News.

UPDATE 2: More reactions coming in. Ed Winkleman: "The ruling was a chilling decision for artists who work in appropriation."

Peter Friedman: "We need not go so far as to conclude that Cariou’s lawsuit signals the death of appropriation art in all its various guises. Blanch v. Koons alone is proof that is not the case. But if we realize how plainly and directly Prince’s appropriations damaged Cariou’s opportunities to economically benefit from his own work, the outcome (if not all of the reasoning) of this new case is obviously correct" (emphasis added).

Greg Allen, on the other hand, still can't believe Prince "somehow lost his open & shut copyright infringement case," and says the whole thing is "basically a flabbergasting shitshow":

"If it stands, it would have major, sweeping, and stifling effects. Not only would the current operating assumptions of fair use and transformative use be ratcheted way back, but the contemporary art world would be turned upside down. It would restrict both how artists appropriate, or even refer to, copyrighted work. And it would turn galleries into copyright police, with an affirmative responsibility to clear images, sources, and references for the work they show and sell. If visual artists and the art market have been operating in some kind of an appropriation bubble, this decision would pop it. Artists would have to adopt the sampling, licensing, and rights clearing practices and infrastructures of the music industry . . . . [T]he decision has some glaring omissions and relies rather heavily on almost-20-year-old textbooks and articles from law journals, while ignoring several highly relevant, recent decisions. The most notable ignored precedent is Blanch vs. Koons (2006), which happens to involve another Gagosian artist, and which seemed to set out a workable test of transformative use."

UPDATE 3: Interesting interview with Cariou here.

"Things might not have come to this point if anyone had looked at the Met's website . . ."

". . . which still lists the painting as 'Partial and Promised Gift of Jan Cowles and Charles Cowles'."

Georgina Adam has more on the "unusual lawsuit" recently brought against Gagosian Gallery.

Tell me again about the public trust (a continuing series)

Carol Vogel has an update on the Renoir that the Clark is holding in the public trust, to be accessible to present and future generations.

The AG on NYPMIFA

A summary, from Simpson Thacher.

"In the wake of a legal settlement announced this week, in which Norsigian agreed not to use the Adams name in selling his pictures . . ."

". . . the price has tumbled to $800 for gelatin silver and $600 for digital, sold in limited editions of 100 each."

Before the settlement, the asking price was apparently $7,500 for gelatin silver and $1,500 for digital (in editions of 50 and 250, respectively).

"A report in today's BNA Daily Tax report is sending shivers down the spines of tax-exempt organizations." (UPDATED)

The Nonprofit Law Prof Blog explains why.

UPDATE: Michael Rushton comments.

"There's a whole constituency in the art world that acts like hall monitors, policing the manners of everyone." (UPDATED)

That's Peter Schjeldahl, quoted in Judith Dobrzynski's follow-up to her New York Times article today on the growing prevalence of single-collector exhibitions. She adds that "he, like so many others, just wants to see art that's normally behind locked doors." Also: "This certainly should not be the third-rail kind of issue that some art pundits want to make it." Very few of them are.

UPDATE: The Art Market Monitor: "Dobrzynksi makes an excellent argument for the essential role of collectors in defining collecting fields and amassing collections that no institution could ever form by committee."

"Berry-Hill stacks up lawsuits"

The Art Newspaper's Martha Lufkin reports.

"The Trust had five legs welded to the bottom of 'Lagoon,' a matter on which the artist was never consulted."

Anthony Caro disowns a work altered by its owner.

"Museums exist to educate the public and delight them; it makes sense to feature these collections if you can."

Museums around the country are embracing single-collector exhibitions.

"This settlement marks the final resolution of the disputes over our rights in the AP’s photograph of Barack Obama."

It's finally over.

More on the Adams Settlement

The New York Times has a story this morning on the Ansel Adams settlement. The gist of it is that "it is not exactly clear just what has been resolved, beyond a cessation of name calling," but it seems to me that, if the settlement ensures that Norsigian "cannot use Adams’s name in selling prints from the negatives," then the Adams Trust has gotten prety much what it wanted out of the suit.

"First came jail and a whopping fine."

"Now, [LA] City Atty. Carmen Trutanich is seeking a one-of-a-kind court injunction to bar Gheorghiu from profiting from art bearing his telltale 'tag.'"

Adams Settlement

The Ansel Adams lawsuit has settled:

"Under said agreement, Rick Norsigian and PRS Media agree to not use Ansel Adams' name or likeness or the ANSEL ADAMS trademark in connection with the sales, promotion or advertisement of [the works at issue]. Norsigian and PRS Media may continue to sell [such works], subject to a disclaimer approved by The [Adams] Trust, and provided they do so in a manner consistent with state and federal law. Further, both parties have agreed not to make any defamatory statements about the other or unlawfully interfere in each other's businesses."

"A federal lawsuit filed in Dallas on Friday has all the makings of a Vanity Fair feature story."

"But far more notable is what's at stake: a signature collection of art (consisting of more than 1,400 works, including some by Monet, Rodin, van Gogh and Cézanne) at the Dallas Museum of Art ...."

What makes an artist a professional?

Daniel Grant considers the question at the Huffington Post.

"Whereas the first legal kerfuffle with Vuitton ended in mid-2008 with Plesner agreeing to stop selling t-shirts bearing the handbag image . . ."

". . . this time Plesner's art is not merchandise to be sold but a work of fine art."

Louis Vuitton is suing Dutch artist Nadia Plesner again.

"And one day I saw it on the wall and thought, ‘Hey, I could use money’ and so I decided to sell it."

"And now it’s a big mess."

The NYT's Randy Kennedy reports that a collector has sued Gagosian Gallery, alleging that they sold him a Mark Tansey painting that was already partially owned by the Met.

"Despite"?

"He noted ... that major gifts dropped last year despite the fact that there was no estate tax in place in 2010."

Linkage

• "A warning to collectors about the notion of authenticity."
• "Sotheby’s has provided a guarantee for the work but we won’t know for some time whether they finally broke their self-imposed ban on providing the guarantees themselves."
• "Marina did not sign anything stating he could make installations or photographic or video editions of this work."

"All this is possible because the art market brings two contradictory elements together . . ."

" . . . on the one hand, huge sums of money; on the other, objects that have no intrinsic, easy to determine monetary value."

That's the thing about legal rows

They tend to escalate.

The Art Newspaper's Charlotte Burns has the latest developments in the Ansel Adams litigation.

The Next Fair Use Case

Involves Mr. Brainwash (of Exit Through the Gift Shop fame) and Run DMC. The Art Newspaper has the story.

FYI, it will soon be a felony to photograph farms in Florida

Eugene Volokh has the details.

"This provides us with a great cushion, so that that we can continue the quality and variety of art projects in the park."

I meant to flag this one before the weekend, but Carol Vogel's latest Inside Art column included a little report that the non-profit Madison Square Park Conservancy had sold two pieces given to it by Sol LeWitt in 2005. The sales raised $1.4 million.

The Art Market Monitor's post about it carried the headline "Madison Park Deaccessions LeWitt Sculptures," which I thought was very clever, because obviously no one has (or could have) any problem with the sale. We can all agree that the Madison Square Park Conservancy is not repulsive. So the case against deaccessioning does not reside in the non-profit status of the selling institution, as some have tried to argue. We recognize that the Madison Square Park Conservancy has a larger mission that can be advanced through the sale of these works. So too with other types of non-profits, like medical schools. So why is it so difficult to admit that museums also have larger missions that can, in the right circumstances, be served through the sale of some work?

"Engel said it wasn't worth the time and trouble of trying the case."

The LAT's Mike Boehm reports that Clint Arthur's pointless lawsuit against Louis Vuitton has settled, "for a $12,000 refund, plus interest — what Louis Vuitton had offered before he sued."

So to recap:

In the summer of 2008, Arthur sued LV for violating the California print disclosure statute in connection with the sale of some works by Takashi Murakami at his exhibition at L.A. MOCA earlier that year. At the time, I wrote that there was something odd about the claim:

" As I read the statute, the available recovery for a violation is 'the consideration paid by the purchaser for the [print], with interest ..., upon the return of the multiple in the condition in which received by the purchaser' -- in other words, you can return the print and get your money back (with interest). If you can show the violation was willful, you can get three times that amount (but presumably you still have to return the print). I would think that Vuitton ... has a pretty strong defense to a willfulness charge since they are not really in the art-selling business and therefore wouldn't have reason to know about something the LA Times calls 'an obscure chapter of the California Civil Code called the Fine Prints Act.' .... Vuitton has already offered the plaintiff a refund plus interest (i.e., what he would be entitled to for a non-willful violation), but he turned it down."

In 2009, a state court judge dismissed the case filed there, calling it a "prime example" of "opportunistic litigation."

Arthur's separate federal lawsuit somehow survived some early motion practice, but, eventually, last spring, most of that lawsuit was thrown out as well:

"We're left, then, with a 'gotcha' claim: that LV violated the technical requirements of the California Fine Prints Act. There really isn't any question that they did so. So Arthur is entitled to a refund; that's the remedy for a violation of the statute -- and Arthur could have had one at any point during this process. The only remaining issue would seem to be whether or not it's fair to charge LV -- not generally in the art gallery business -- with willfully violating what the LA Times called 'an obscure chapter of the California Civil Code,' such that Arthur (and, perhaps, anyone else who wants to trade in their print) is entitled to treble damages. So, at best, Arthur would be entitled to $18,000 per print instead of $6,000. It all seems so pointless to me."

And finally, the recent settlement, with Arthur finally accepting the refund that was offered to him all along.

"Peters' lawyer argued Waitt's complaint amounts to buyer's remorse."

"But the judge ruled Waitt's claims were enough to reject Peters' motion to dismiss the case."

Linkage (art crimes edition)

• Art fund scam in France.
• "The trucker who damaged a controversial display at the Loveland Museum/Gallery must pay $2,991 in restitution."
• Trial begins in civil case brought by artist arrested for selling without a license.

Creeping back

In The Art Newspaper, Georgina Adam and Charlotte Burns report that auction house guarantees, "which disappeared during the downturn," are making a comeback, and that, "among art dealers, there are few more divisive subjects."

I reviewed the relevant legal rules a while back here.

Linkage

• Conviction in Giacometti forgery ring.
• Banksy stolen in LA.
• "A funny thing happened on the way to a de-accessioning."

Artelligence Conference

For those interested in monitoring the art market, The Art Market Monitor has put together a one-day conference on "understanding art as an asset," on April 13, that you won't want to miss. Details here.