"Infringement claim smacked down"

Rebecca Tushnet has a detailed analysis of the decision in Gordon v. McGinley.  She thinks a fee award "would be well justified."  In the comments, Bruce Boyden adds, "based on the photographs I've seen, it seems a good candidate for Arnstein v. Porter's exception for a suit alleging Bolero infringes on When Irish Eyes Are Smiling."

Art theft on the rise

I'm quoted in this Art Newspaper story on the recent spate of high profile thefts.

"I think the civil jury here has sent a strong message to those dealing in stolen art that there will be a price to pay for that activity."

"Michael Bakwin, who was the victim of the largest residential theft in Massachusetts history when art was stolen from his house in the Berkshires in 1978, won a $3 million civil judgment yesterday against the man who possessed the artwork for more than two decades and tried to sell it."

The defendant was Robert M. Mardirosian, "a retired criminal defense lawyer, [who] was convicted in federal court in Boston in August 2008 of possessing six of the stolen paintings and was sentenced to seven years in prison." 

More Artelligence

The Art Market Monitor has put together another great conference, Sept. 21.  Register here.

On Stealing the World's Most Famous Painting

Noah Charney's latest.

"Unfortunately, such silence is not an isolated incident but part of what seems to be a growing trend nationwide among art experts, where fear of litigation seems to be stifling open, honest and constructive debate."

William D. Cohan writes about the "deeply and profoundly disturbing" "ongoing self-censorship among a group of highly regarded art scholars" regarding "a questionable multimillion-dollar trade in sculptures supposedly by Edgar Degas" (on which, start here).  They "are keeping mum not because they have doubts about the accuracy of their opinions or their facts, but because they are afraid of being sued."

He says "one idea being bandied about ... is to convene a symposium that will allow all sides of the debate to air their views in a 'litigation-free zone,' if you will."  To which lawprof Ann Althouse responds:  "Discussion in a litigation-free zone... what a concept! As if, in some later lawsuit, a judge would exclude evidence of these statements under some new 'litigation-free zone' privilege."

"This was a good opportunity to support Bethany’s educational mission and share some beautiful pieces."

Kansas's Bethany College earned more than a million dollars "for its general scholarship fund" by deaccessioning some artwork.  (I mentioned this earlier here.)

They "shared some beautiful pieces."  Kind of like a Humane Society.

"In this case, McGinley and Gordon will both be able to continue photographing figures with outstretched arms, interracial kisses and nude female torsos, so we all win!"

The L Magazine's Benjamin Sutton on Gordon v. McGinley.

"Folk Art Museum Considers Closing"

The NYT's Kate Taylor reports that "the financial picture has grown so bleak at the American Folk Art Museum that its trustees are considering whether to shut it down."  They've been talking about donating their collection to the Smithsonian Institution, possibly in conjunction with the Brooklyn Museum.

Of course, because of the deaccessioning taboo, one possibility they can't consider is a sale of a portion of the collection to the Smithsonian, possibly in conjunction with the Brooklyn Museum.

But why not?  I have no idea if the Smithsonian would have any interest in such a sale, or whether it would solve the Folk Art Museum's financial problems.  But, if it could, would we really prefer a world in which the Folk Art Museum loses its entire collection and shuts its doors to one in which it sells a portion of the collection and stays alive?

Is that what passes for "ethical" thinking in the museum world these days?

"When dead people try to impose on future generations their will, they don’t know what they’re talking about."

"They’re dead! Things change."

More on the Janine Gordon Dismissal

Some reactions to the dismissal of Janine Gordon's copyright suit against Ryan McGinley:

Techdirt's Mike Masnick:  "It's a nice clean ruling. It's just too bad the court had to waste time with it at all."

Sergio Muñoz Sarmiento:  "borders on frivolous."

Artinfo's Kyle Chayka:  "Hopefully, Gordon's failed suit will prove to be a deterrent for other artists looking to cash in on the recent fad for copyright infringement accusations."

Artnet's Rachel Corbett:  "Attorneys for the defendants say they are considering motions to recoup legal fees, which McGinley’s lawyers estimate is collectively 'well north of a $100,000.'"

"The money we raise we will put in the bank."

FYI, Rotterdam's Wereldmuseum is, like the Bangor Historical Society and (possibly) the Erie Library, repulsive.

It plans to sell its African and American collections "to cover funding shortfalls made more likely by the economic crisis in Europe and a planned cut in state subsidies."

Crisis shmisis . . . who's up for some SANCTIONS?!?

"But with the society on the verge of shuttering because of lack of money, its board made the painful decision earlier this year to sell the newspapers."

The Bangor Historical Society is selling a collection of revolutionary era newspapers.

Of course now every historical society in the country will begin selling off their newspaper collections.  There will be nothing left.  Nothing.

I hereby call on the hall monitors to call on the AAM to SANCTION these OUTLAWS.

"More benefit by selling painting"

The editorial board of the Erie Times-News repulsively argues in favor of selling the town library's Childe Hassam:

"If we are so fortunate to have a painting worth at least $2.5 million or maybe more than $5 million -- and the money is indeed invested in the library's future and not 'squandered' by short-term budget solutions -- we think selling it is the wiser decision. We think it would help more people to put the library on solid financial footing than to keep the status quo and not sell the painting. We can then debate the many ways we can give proper tribute to Hassam, the painting and its enduring role in our history and the library's long-term future."

On the other hand

I had missed it earlier in the summer, but the decision in the Janine Gordon case makes reference to David LaChapelle's infringement suit having survived a motion to dismiss.

Dismissed (UPDATED)

Janine Gordon's copyright infringement suit against Ryan McGinley has been dismissed on grounds of "utter lack of similarity."  I'll put up a link when I find one, but for now, here's an excerpt:

"Plaintiff's apparent theory of infringement would assert copyright interests in virtually any figure with outstretched arms, any interracial kiss, or any nude female torso.  Such a conception of copyright law has no basis in statute, case law, or common sense, and its application would serve to undermine rather than promote the most basic forms of artistic expression.  One might have hoped that Plaintiff -- an artist -- would have understood as much, or that her attorneys, presumably familiar with the basic tenets of copyright and intellectual property law, would have recognized the futility of this action before embarking on a long, costly, and ultimately wasteful course of litigation in a court of law."

The Court also noted that "the remedy for the instant dispute lies in the court of public or expert opinion and not the federal district court."

UPDATE:  Here's a link to the decision.

"He also has an unpleasant, Borat-like mustache, as pictured in the security camera stills"

Artinfo:  $100,000 Artwork Stolen From Mark Ecko's Office by Mustachioed Hipster Thief.

They hold it in trust for us ...

. . . but charge two hundred bucks to see it.

Oh, tartar sauce!

The NYT's Kate Taylor reports that, "according to a lawsuit filed last week in Superior Court in Los Angeles, a former lead artist on the cartoon 'SpongeBob Squarepants' hired accomplices to attack his art dealer and take over her gallery in order to gain control of the sale of his work."  The artist's lawyer says the suit is "completely ridiculous" and that he "intends to sue [the dealer] for malicious prosecution and refer this matter to the appropriate district attorney’s office."

"How can arts institutions protect cultural masterpieces without hurting the intimate viewing experience?"

The question arises after a Virginia woman, "four-and-a-half months after she was charged with trying to tear a Gauguin painting from a wall in the National Gallery of Art — and just three weeks after she was released from St. Elizabeths Hospital — ... was arrested in a similar assault on a work by Matisse at the museum."

"Apparently the police in Long Beach, California, have a policy that says if a police officer determines that a photographer is taking photos of something with 'no apparent esthetic value,' they can detain them."

Story here.  Lawprof Ann Althouse says "I understand the security concerns at the root of this, but it's just crazily overreaching."

"Sam Stretton’s arguments and delivery were electrifying. Barth and Wellington’s were more like two dull thuds."

Save the Barnes, Stop the Move starts planning the victory party.

True of all collections but one

Holland Cotter had a lengthy piece last week on the Met's plan to use the Whitney building to display its collection of modern and contemporary art, when the Whitney moves downtown in 2015.  He includes the following thoughts:

"Objects do move. They aren’t static. They never rest. Physically they’re changing, degrading, all the time. Their histories are dynamic. Under close, patient, repeated questioning by curators and conservators they unfold their stories. They reveal who made them, when, where, how, why. Curators ask certain kinds of questions, conservators other kinds. And they have to keep asking because as the objects perpetually change, so does knowledge and a sense of what matters. No case is ever closed."

No case but one:  the Barnes collection, we are repeatedly told by opponents of its five-mile move up the road, is perfect as it is.  It is static.  It has come to rest.  No further questions should be asked.  We already know everything there is to know about the works.  As I wrote last summer:

"The Barnes ... is perfect exactly how and where it is. It cannot be improved upon. Don't move a hair on its head. Don't re-think anything, ever. They got it right the first time. (What were the odds!) It was, is, and always will be . . . perfection."

"What would it mean for the U.S. art market if droit de suite was made into law?"

The Art Newspaper's Helen Stoilas reports on ARS's push for "legislation that would see droit de suite, or artists’ resale rights, become federal law."  She says "artists who support the scheme say it is only fair for the creator of a work to get a percentage of the proceeds when it is resold, considering that the seller and the middleman get a share."

But she also quotes Stanford's John Henry Merryman as follows:  "The small minority of artists whose works have a significant secondary market would get richer. The great majority of artists, who have no significant secondary market, would have fewer gallery exhibitions and decreased sales in the primary market."  Shane Ferro's story at Artinfo includes a similar point:

"Opponents of the legislation say that the tax will only really benefit established artists who command top prices without the tax. Academia, for instance, is littered with economic papers stating that droit de suite hurts the struggling artists that it is meant to protect. Victor Ginsburgh of the Universite Libre de Bruxelles argued in a 1996 paper entitled 'What Is Wrong With Droit de Suite: The Economic Arguments' that the possibility of having to pay a penalty for reselling a work will cause buyers to demand lower prices across the primary market. Since lesser-known artists generally don't see a significant amount of their works resold, they will never see any extra revenue from the secondary market."

Related post here.

"That’s a question I’ve been chewing around: why is that a conflict of interest? ... They can in fact take a position, can’t they?"

Another thing that happened while I was away was the oral arguments on the latest petition to reopen the Barnes proceeding.  The Main Line Times seems to have the most extensive summary.  The quotation above is from Judge Ott.  (See related thoughts here.)  I still don't see how the plaintiffs get around the standing problem, and won't be surprised if there are sanctions this time.

"The museum, which houses [a] 10,000-piece collection, will probably revert to bank ownership."

The Jersey Journal reports that "there seems to be no chance the financially distressed Jersey City Museum ... will regain its footing and reopen to the public."

So what happens to the art?

And we're back . . .

. . . after further refining my summer.  Lots of art law seemed to happen while I was away, including:

Another guilty plea in the Clementine Hunter forgery case.

Prosecutors seek a 10-year term for James Biear in art theft case.

Ralph Esmerian was sentenced to six years in prison and a $20 million fine.

MoMA closed on its $31 million deal to buy the Folk Art Museum building.

MoMA also raised its ticket price to $25.  Remember:  they hold the work in trust for us, but they charge us to see it.

Chapman Kelley filed a cert petition in his VARA lawsuit.

Sotheby's labor dispute with its art handlers continues.

The debate over the Erie Library Childe Hassam continues.

The tax deduction for charitable donations was not affected by the recent debt-ceiling law.

A botched Riopelle theft in Quebec.

Sarah Thornton won her UK libel suit over a review of her book Seven Days in the Art World.

More later . . .

Continuing to Refine

Miraculously, taking some more time off has been found to satisfy the "refinement of my summer" test, so I can ethically do so.  It was a very close call, but we made it through.  Just as not just any sale by a museum serves to refine its collection, not every week of vacation serves to refine my summer.  We're talking very strict standards here people.

Back in about 10 days.

The VMFA repulsively produced an economic impact of $30 million for the state of Virginia

From a show on loan -- I'm sorry, did I say "loan"?  I meant "rent."  It's very important that we use that word when loan fees are paid.  Very important.  Especially when the Rose is involved -- from the the Musée National Picasso in Paris.  The Richmond Times-Dispatch has the details.

So what happened was:

Lots of people got to see a bunch of great art that they otherwise wouldn't have had a chance to see.

The local economy got a boost.

And the lending (sorry: "renting") museum, which was closed for renovations anyway, got some cash.

It's all so repulsive and icky.  And it probably violates some donor intent, if you look hard enough.  Well, maybe not donor intent, but someone's intent.  I'm sure there's someone out there whose intention is that museums not make these repulsive, icky, commercial arrangements that benefit everyone and harm no one.

So there.

"The facts of the case may provide a good in-class example for discussions of idea/expression and substantial similarity."

Lawprof Megan Carpenter on Janine Gordon's copyright infringement suit against Ryan McGinley.  In the comments, Bruce Boyden says "if the other works in suit are like the 3 featured in the article, she’s going to make Nichols v. Universal Pictures look like a close case."

"Much attention has been paid to the forces at work against the foundation, but in fact the seeds of destruction were sown by the hands of Barnes himself."

James Panero has the cover story in the new issue of Philanthropy magazine on the Barnes Foundation.  He says it's "been a case study in how an institution . . . can become irrevocably damaged through overly restrictive operating guidelines, unanticipated leadership problems, and the competing missions of other organizations and institutions."

Overall, he seems to fall into the wish-they-weren't-moving camp, but it's a much more balanced picture than we're used to getting.  For example, he notes that "it is not exactly clear to what extent Pew, Annenberg, or Lenfest are obligated to defer to the wishes of Albert Barnes. Donors, whether individual or institutional, pursue a wide variety of causes. In a free society, many of those causes will be mutually exclusive. Barnes wanted his collection intact and in Merion. Pew, Annenberg, and Lenfest want to make downtown Philadelphia a center for world-class art. Both goals are perfectly legitimate—indeed, on their own, entirely admirable."  (It's much easier to just call those groups -- who "offered $150 million in private and public funding" -- THIEVES.)

Nevertheless, he says "their actions undermine the general principle of donor intent. They set a precedent that could discourage future donors from believing that their intent will be honored. All philanthropy involves an act of trust between giver and recipient. These actions erode that sense of trust, to the detriment of future philanthropy."

But as I've said before, it's built into the structure of our laws governing philanthropy that, if circumstances change significantly enough in the future, donor intent may be modified.  That was the case before Barnes established his foundation, and remains the case today.  We simply can't guarantee donors that, no matter what happens, their intentions will always be honored.  But we still get plenty of philanthropy.

In fact, in the case of Barnes, don't the incentive effects actually run in the other direction?  Do we want the message to potential donors to be, no matter how poorly you structure your gift, no matter how "overly restrictive [your] operating guidelines," no matter how ill advised your investment limitations, we will never violate your intentions?  Doesn't the moving of the Barnes in fact send exactly the right message to future donors?

"You need to go after the bad guys, not the Danish artists."

The Financial Times:  The struggle to make logos a no-go for art.

Art Sex Crime tagging crew

Eight members arrested in LA.

"First, the Rose controversy can be summarised as fundamentally a failure of leadership."

In an op-ed in The Art Newspaper, former Rose director Michael Rush reflects on the recent settlement.

I'll note in passing that, unlike a lot of the press reports at the time, he correctly characterizes the settlement as falling "short of a binding statement that [the university] will not sell," and adds:

"Brandeis’s language in the lawsuit resolution may be intended to keep the door open for future sales. Having no 'aim, plan, design..to sell any artwork…' could be translated as their having no 'aim, plan, design' to sell any artwork today. Why didn’t they say 'Brandeis agrees not to sell artwork?'"

That's obviously tangential to the main points in his piece, but I think it's important to have a clear record of just what the settlement provides.

More on Copying vs. Stealing

Matthew Yglesias:

"I wrote a book once, titled Heads In The Sand. I both own physical copies of the book and own the copyright to the content of the book. It is obviously not equally harmful to me if you break into my house and steal my physical copy of the book than if you were to somehow go to the library and make a photocopy of the book. The difference, not at all subtle, is that when you steal something of mine (be it my book, my iPad, my shoes, my money, my immersion blender or whatever), I don’t have it anymore. If you copy something that you’re not allowed to copy without my permission, that’s a very different issue. Perhaps you deprive me of income I would have had if you hadn’t done that, or perhaps you don’t deprive me of anything. As I’ve said before, I sometimes beg online for someone to send me a copy of an academic article that I can’t get free access to. It’s never the case that my fallback option in this situation is to purchase an extremely expensive academic journal subscription. Nobody is harmed when this sort of copying occurs, and even in the cases where there is a harm the nature of the harm is quite different from the harm incurred in actual cases of theft.

"I’m not really sure why the people charged with enforcing copyright law are obsessed with obscuring this fact. . . . The regulations against copying are supposed to 'promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' That’s a good reason to have a set of rules, but it’s a reason that has nothing to do with 'stealing.' The question is whether the rules we currently have are actually good ways to achieve this goal."

We had this discussion here a few months ago.

Invisible Art

Sells for $10,000.

In the public trust

The Art Newspaper reports that the Detroit Institute of Arts is "diverting the interest from acquisitions endowments to balance the museum’s budget."

Interestingly, the DIA's director is Graham Beal, who not too long ago was "cement[ing] his status as the field's most articulate spokesperson against desperation deaccessions" by insisting that "the institution is there to safeguard the art. The art is not there to support the institution."  (I guess the art isn't there to support the institution, but the art acquisitions fund is!)

The article emphasizes that Beal received permission from the donors of the relevant funds (or, more precisely, their estates/families).  Could the same approach be used to deaccession work?  Is getting permission from a "deceased donor's family" all it takes?

"It's first important to understand that this lawsuit offers a new take on the theme of what is original and therefore copyright-able."

Ed Winkleman on Janine Gordon's copyright suit against Ryan McGinley.  He says he's "not at all sure that we're even dealing with 'fair use' in this case.  The images seem so different."

"In the meantime, Mr. Prince’s unsold 'Canal Zone' paintings have been sequestered in a Long Island City warehouse ..."

"... as part of an agreement between both sides to forestall the paintings’ possible destruction—an option the district court had explicitly granted Mr. Cariou—at least until Cariou v. Prince is finally resolved."

"This was a betrayal of trust."

"Former [Salander-O'Reilly] art gallery director Leigh Morse escaped a lengthy prison term on Tuesday but will owe $1.65 million in restitution for defrauding clients."

"The press seized on the story, with a flurry of coverage lasting more than a year."

Did arts journalists save the Rose?

"It sounds as if this is a case of a mentally unbalanced thief, stealing not for profit, nor as a cunning collector, but as a sort of magpie."

David Nishimura on the recently arrested Mark Lugo.

"It is at least dawning on them that it's problematic."

Artinfo.com on Europe's droit de suite dilemma.

Related thoughts here.

More on Fashion and Copyright

The New York Times reports that "five years into a campaign by the Council of Fashion Designers of America to enact some sort of protection for original designs, the proponents of such legislation say they have their best chance yet at seeing a bill become law."  Matthew Yglesias says it's still a terrible idea:

"The article is full of examples of alleged copying which provide the motive for people to want to make said copying illegal. But the question, again, isn’t whether a lack of prohibitions on copying will allow for copying. The question is what’s the problem? If the problem is that there’s no innovation in fashion design, then perhaps time-limited monopoly grants to fashion designers is the answer. But is that a problem? Have high-end fashion houses stopped doing new lines? Do people just not bother to buy new clothes anymore? I’ve never heard anything like that ...."

Previous thoughts on this subject here.

Two Poussin Paintings Vandalized

In London.  Carol Vogel has the story.

"Art crime, you see, is a dumb crime."

"With masterpieces in particular, it's virtually impossible to find a buyer for a stolen work."

"I think there is some psychiatric episode going on."

"Mark Lugo, 30, stands accused of a four-week spree that the authorities say netted a dozen art works, simply by pulling them from gallery and hotel walls in Manhattan and San Francisco, with little more effort than it takes to shoplift a candy bar."

"4 Charged in Smuggling Egyptian Antiquities"

The NYT's Kate Taylor has the story.

"Well it looked like he was putting on his own art show. He had no intention to sell."

"A man who was arrested in the theft of a Picasso drawing from a San Francisco gallery last week was keeping a virtual museum in his apartment, including 11 works stolen from New York galleries and hotels, according to the police."

"Photographer Ryan McGinley Sued for Copyright Violation"

The NYT's Randy Kennedy has the details.

Looted Work Returned

"A treasured 17th-century statue that was looted from one of London's last-surviving medieval churches during the Blitz has been returned to its rightful owners more than 70 years after it disappeared."

"They went in knowing what they were looking for. And if you know what you're looking for, you're probably professional."

Art theft in Toronto this weekend.

Monkey Do

Techdirt has gotten a takedown notice demanding that they remove the monkey photos I mentioned last week.  Jason Kottke calls it "Onionesque. Please someone interview the monkey about his/her views on this."  Related post from Cristina del Rivero here.

"The saga of the great Pebble Beach art heist marches on."

Now they're suing the insurance company, who "rejected the claim based on 'concealment or fraud,' according to court papers."  Background here.

Guilty Plea in Corot Case

"Mr. Doyle, who has a long criminal record, including grand larceny in the third degree, faces up to 20 years in prison when he is sentenced on Oct. 11."

Background here.

Virtual Barnes Tour

The New York Times has posted a virtual tour of the Barnes, "to convey at least a little of the flavor of the home Barnes built for his art."  And they sum up the controversy thusly:

"Critics of the move argue that it will destroy the character of one of the last truly personal visions for what an art museum can be, putting the collection in a more conventional setting and surrounding it with the accoutrements of every other museum, like a cafe, a bookstore, an auditorium. But some supporters point out that the plan for the new building in some ways maintains the layout of the original. They add that the Barnes, like all great art collections, should not be preserved in amber, and will continue to live only if it is allowed to change."

Artist Visited by Secret Service

Details here.

Charges Filed Against Guy Wildenstein

"French investigators have just charged a New York-based art dealer with 'possession of stolen goods' and 'breach of trust' in connection with 30 pieces of art that had been missing for decades and were rediscovered last year."

Ryan O'Neal, Farrah Fawcett, and Andy Warhol

The New York Post reports that "Ryan O'Neal has ... been sued by the University of Texas in an ongoing battle over an iconic silkscreen of Farrah Fawcett valued at $30 million."

"The Barnes had its arms wrapped around itself."

"We want to open up its arms to the world."

"The artwork is undamaged and the motive is unknown."

An arrest in the Picasso theft.

When a monkey takes a photo ...

. . . who owns the copyright?

"Whoever thought stealing a $200,000 Picasso could be so simple?" (UPDATED)

Artinfo.com's Julia Halperin on the San Francisco Picasso theft.

UPDATE:  Video footage here.

Russian Art Suit

"A European art buyer has sued ABA Gallery and its owner, Anatoly Bekkerman, of selling $6.5 million in fake and overvalued paintings by Russian artists."

More on the Biro Defamation Suit

Techdirt's Mike Masnick files it under "this-could-get-interesting" and says:  "The New Yorker actually has one of the best reputations around when it comes to fact checking. Perhaps there's something more that will come out during the trial, but I'd guess that it'll be difficult to get the defamation claim to stick."  In the comments, Julian Sanchez seconds the motion:  "The fact checking system at the New Yorker is pretty much the gold standard in journalism; I'd be astonished if this went anywhere."  Background here.

"My greatest fear is that, with all this attention on it, the person will realize it’s unsellable and will dispose of it in a less-than-proper manner."

A small Picasso drawing was stolen from a San Francisco gallery Tuesday.

"It is certainly easier for the world to see the collection now that it heads to central Philadelphia ...."

". . . But it also denies the pleasure of feeling that one has discovered a hidden gem."

Noah Charney, on the Barnes move.

"Her decision set out a strikingly narrow understanding of copyright's fair use doctrine ..."

" . . . by holding that a creative work that makes use of another, preexisting work can qualify as 'transformative' (and thus likely to be a permissible fair use) only if it refers to or comments on the older work."

Jones Day's Meir Feder and Rajeev Muttreja on the Prince-Cariou decision.

More on the Rose Settlement

The Boston Globe has expanded its story on the settlement.  The headline has changed -- it now says "Brandeis settles art museum suit" -- but the lede still says that, "according to a court settlement," Brandeis "will ... sell none of its prized collection."  Later, the story refers to a "written guarantee," a "written promise."

But, as I pointed out yesterday, all Brandeis put in writing (in the settlement agreement) is that it "has no aim, plan, design, strategy or intention to sell any artwork."

Brandeis's press release says "the settlement agreement ... states that ... Brandeis has no plan to sell artwork."

I understand why Brandeis would like people to think they've promised not to sell any work, and I can understand why the plaintiffs in the lawsuit are happy to play along.  But there simply is no promise, no guarantee, not to sell work.

Another Settlement

Lots of settlements of late:  Hangover II, the Peter Doig dispute, Brandeis-Rose.  And now we can add one more to the list:  the copyright infringement suit involving the "Broadway Dance Steps" public artwork in Seattle.  The defendant in the lawsuit, photographer Mike Hipple, says "I did not realize then that selling a photograph which includes part of a copyrighted public artwork can violate that copyright."

"A New Yorker spokeswoman said the magazine would fight the lawsuit."

Remember that New Yorker article on Canadian forensic art expert Peter Paul Biro that I -- and a lot of other people -- really liked?  Well, Biro has now filed a defamation suit against the magazine.

The Rose Settlement

The Brandeis-Rose Art Museum lawsuit has settled.  The initial press reports, however, misstate the nature of the agreement.

The Boston Globe headline is "Rose Art Museum will sell no art," and the lede to its story is:  "Brandeis University has agreed to put in writing that it will sell none of the Rose Art Museum's prized collection of modern art."

The LA Times says Brandeis "has stated that it won't sell pieces from the Rose Art Museum's collection."

The Chronicle of Higher Education says Brandeis announced "that it would not sell any part of its prized collection of modern art at its Rose Art Museum."

The Art Newspaper says Brandeis "promise[d] to keep the museum open without putting any of its art up for sale."

That isn't quite right.  What the settlement agreement says (you can read it here; see the last sentence of paragraph 1) is that Brandeis "has no aim, plan, design, strategy or intention to sell any artwork."

There's a big difference between saying that and saying they promise not to sell any artwork.

It's like saying I don't have any plan to have sushi for dinner tonight.  If I change my mind in a couple of hours, I haven't breached my earlier "agreement" in any way.

Similarly, if circumstances change at some point down the road and Brandeis wants to revisit the question of selling some art, there is nothing in this agreement to stop them.  It's a pretty meaningless document.

(Randy Kennedy's New York Times story gets it right -- noting that "the settlement does not say that the museum will categorically never sell works.")

The press reports also emphasize that the Rose is to remain a public museum -- as if that is some sort of major concession the plaintiff's won in the lawsuit -- but that's something Brandeis had committed to on its own long ago.

"Our board members have a fiduciary responsibility to make the best decisions for the future of Randolph College as an educational institution."

Lee Rosenbaum has an update on the Randolph College deaccessioning dispute.  The latest is that the AAMD has written a stern letter confirming its censure of the school.

The stern letter does not explain why the AAMD's incoherent "ethical" rules should trump the interests of the college.  As lawprof Alan Feld put it recently:

"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."

It's as if, for financial reasons, a college restructures its sociology department, and the American Sociological Association steps in and "censures" the school, says it will no longer publish papers by its faculty, and so on.

Just who do these people think they are?

"The foundation ... also reported that it has seen rapid growth in museum membership - from 400 members two years ago to over 10,000 now."

The tragedy of the Barnes continues.

And We're Back

It seems that, while I was away meeting the oh-so-stringent "refinement" test, two very interesting art-related lawsuits settled.

One was the Hangover II tattoo case, but not before the Judge hearing the case had indicated that the plaintiff had a “strong likelihood of prevailing on the merits for copyright infringement” and that Warner Brothers' arguments were, for the most part, “just silly.”

The other was the Michael Werner Gallery's lawsuit against Carnegie Museum trustee James Rich over a Peter Doig painting that was supposedly promised to the museum but instead ended up consigned for sale at Christie's:  "The gallery no longer objects to the consignment, and the museum will receive the painting if it is not sold. If it is, Mr. Rich has promised to give the museum a new Doig work, and a substantial donation."

Refined

Earlier this year I passed strict new rules about when I could go to the beach.  They include saving someone's life and a direct order from the President of the United States.  But fortunately for me, they also include "refinement of my summer," and I somehow managed to qualify under that (very very strict) standard this week.  So here I am.  Blogging will resume next week.

""In the end, I think it's the best for the institution and the students and the artwork."

I've asked a number of times before, what if a donor gave work to a museum with the intention that it be sold?  (See, for example, here.)  The anti-deaccessionists love to appeal to "donor intent" when it's a reason to oppose a sale.  They also love to appeal to the notion of the "public trust" as a reason to oppose a sale when donor intent doesn't come into play (as, for example, where the relevant work was purchased by the museum, rather than donated).  But what if the two are in conflict?  What if the donor's intent is that the work be sold (as in Felix Salmon's Museum of Underappreciated Art)?  Do we honor that intent?  Or do we ignore the donor's intent and hold onto the work because it belongs to "the public"?

The Wichita Eagle reports this week on a real-life example of this conflict.  Kansas's Bethany College is deaccessioning a bunch of artwork, and plans to use the money to "finance student scholarships."  (I know, repulsive, right?  But leave that to the side for the moment.)  The school says "a donor gave the college a piece in 2009 with the intent that the college sell it" and that they are "not selling any items whose donors won't allow it."
 
This puts the Deaccession Police in a real bind.  On the one hand, we know, from the Fisk case, and the Barnes, and others, that they really really care about donor intent.  They hate to see a donor's intent ever violated.  It's just awful when that happens.  And yet . . . something tells me that, in this case, they'll be willing to make an exception,  Donor intent is not the be all and end all, you know.  Those works don't really belong to Bethany; they're simply holding them in trust for us, the public.  They must remain accessible to present and future generations.  Bethany really ought to be sanctioned, this is an outrageous breach of a very, very core principle of ethics.

That is how it will go down, isn't it?

"But doesn’t fair use protect meaningless art, too?"

At Concurring Opinions, Brian Frye on the Mr. Brainwash decision.

"Couple Say They Were Sold Bogus Art"

Courthouse News Service reports that a "couple say they paid a New York art dealer $15,000 for a painting by French realist Rosa Bonheur 20 years ago, only to find out this year when they consigned it to Sotheby's that the painting was done by Bonheur's brother."

The obvious issue is the statute of limitations.

"The spokesman for the federal Attorney General's Office ... said Thursday afternoon that the case was continuing."

More on the uncertain status of the legal proceedings involving a disputed group of Kahlos.  The LA Times reported last week that "a Mexican court" had "ruled" that "opponents" had "failed to prove that [the collection] was counterfeit," but, from this latest report, that does not appear to be true.

Picasso's Electrician Charged With Theft

Story here.  Background here.

Affirmed: Pole Dancing Is Not Art

Story here.  Decision here.  Background here.

Only Wrong When Brandeis Does It (a continuing series)

MoMA is lending some works to the Art Gallery of Western Australia . . . for about $6 million dollars.

I'm sure the hall monitors will raise their usual complaints, but, as Judith Dobrzynski says, "museums have to raise money, and whatever they do -- name galleries for donors, raise admission prices, deaccession art, you name it -- yields criticism nowadays."

Who's on first?

A confusing set of reports regarding a group of disputed Frida Kahlo works.  The LAT's Christopher Knight says "a Mexican court has ruled that opponents have failed to prove their claim that the collection is bogus" (my emphasis).  But the New York Times says "the Mexican attorney general’s office has declined to bring charges against" the two art dealers who own the collection (again my emphasis).  Obviously, prosecutors declining to prosecute is not the same as a court making a ruling (for one thing, the former decision may have been affected by the fact that, as the NYT story points out, "art forgery is not a crime under Mexican law").

"He's been engaged in unlawful conduct for a quarter century."

Nine years for Chicago dealer Michael Zabrin (mentioned earlier here).

Buyer Beware

Courthouse News Service reports that "a man claims a Scottsdale art dealer sold him a Renoir sketch it claimed was worth $110,000 that was actually worth no more than $6,000."

The Art Market Monitor sums it up as "Man Sues Gallery for Making Fool of Him":  it's "yet another art buyer who seems to think the person selling him the art is working in his own interest."

I discussed a similar case here.

"The gallery seeks no money in the suit ... and only asks that Mr. Rich fulfill his supposed obligation."

Here's an interesting one.  The New York Observer reports that Michael Werner Gallery is suing collector James Rich over a painting that was allegedly supposed to have gone to the Carnegie Museum (where Rich is a trustee) but did not:

"The painting in question, 'Red Boat (Imaginary Boys)' (2004) by Peter Doig was sold to Mr. Rich for $162,000 in 2004 but is now up for auction at Christie's where it’s expected to take in between $2,289,000 and $2,943,000. In the meantime, the Carnegie Museum was meant to assume full ownership, but Mr. Rich claims to have donated a percentage of the painting and then bought it back such that he still owns it."

"No matter how you look at it, I end up the loser, period, end of story."

In the New York Times earlier this week, Kate Taylor had the latest example of you-can't-get-good-title-from-a-thief.

Derek Fincham has a copy of the decision and says:  "The case reveals the continuing preference of American Courts generally for the original owner."

They hold it in trust for us, but they charge us to see it

Randy Kennedy had a short piece in yesterday's New York Times on the issue of museum admission fees.  He quotes Philippe de Montebello as asking:  "Philosophically, what is it about a work of art that makes it mandatory that it should be available for nothing?"

It seems to me that anyone who really believes museums hold works as a "public trust" should favor free admission.  As Paddy Johnson says in the Times piece, "I’ve never thought the public should be charged to see their own belongings." Fortunately, no one really believes the works are held in trust, or else it couldn't be the case that "deaccessioning is not a dirty word."  It's just something people say when they want to express disapproval of a sale whose proceeds are not going towards buying more art.

Tattoo Erasure

Reuters reports that Warner Brothers has said in court papers in the Hangover II tattoo litigation that if the case is not resolved by the time the movie comes out on DVD, "the studio will digitally alter the controversial mark on [actor Ed] Helms' face."

Cristina del Rivero wonders about the strategy:  "Is it me or did the defendant just spend a quiver in its arrow in that litigation by voluntarily removing it from the DVD?"

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.