I've been meaning to mention this Appellate Division decision affirming the dismissal of a claim against Christie's by a disappointed buyer of Star Trek memorabilia. You can read some background on the claim here. The buyer was held bound by Christie's Conditions of Sale, which in this case (1) "expressly declared that 'all property is sold as is' without any representation or warranty of any kind by Christie's or the seller" (typically not the case for fine art auctions, which come with a warranty of authenticity) and (2) "contractually precluded" him "from pursuing the massive recovery he now demands" because "the only remedy available to him thereunder would be a refund of the sale price(s) upon return of the item(s), a limitation generally permissible in contracts for the sale of goods" (a limitation which typically does apply in the fine art context).
The court also ruled that there was no claim under NY General Business Law sections 349 and 350 because "a party seeking those remedies must charge conduct that is consumer oriented, with an impact on the public at large." Similarly, punitive damages were unavailble since "the misconduct alleged here, which arises from a private contract, does not resemble the egregious wrongdoing that could be considered part of a pattern directed at the public generally."
Wednesday, December 30, 2009
Tuesday, December 29, 2009
Reviewing the Years in Review
The year-in-review articles and posts have been trickling in, a number of which touch on art-law related matters. Derek Fincham has the Year in Cultural Policy, including the following on deaccessioning:
"One of the difficulties with deaccession stems from its connection to our fundamental view of art and museum governance. What is the nature of art? An art museum? Are either permanent? Can we trust the governing structures in our museums? Our inability to find common ground in crafting answers to these questions accounts for the continued difficulty. But if the arts community cannot come together and craft viable solutions to these difficulties, we are going to be left with weaker cultural institutions and risk losing more works as a result of financial difficulty."
Ed Winkleman's Top 10 New York Art World News Stories of 2009 included, at no. 2, the Salander debacle (Ed takes the opportunity to remind us that "Bernie Madoff is to Larry Salander what AIG's losses are to your personal 401(k)") and, at no. 1, the New Museum controversy.
The Boston Globe's Sebastian Smee reviews "a frankly incredible year in art," beginning with the Brandeis-Rose story ("The art world, the media, and a sizable swath of the public voiced strong opposition to the plan, and Brandeis eventually retreated - with mincing steps, it has to be said - from its original position: The museum would stay open, it promised, but it refused to rule out the possibility that art would be sold"), then "things got even weirder" with the arrest of Shepard Fairey "for graffiti-related activity" -- "embarrassing, sure - but worse was to come": Fairey's recent "admission that he had lied to a federal court judge about which photo of Obama he had based his 'HOPE' poster on. He had also destroyed evidence to cover up his lie. His lawyers dropped him. Fairey continues to do his thing, but he looks a little tarnished." Smee also mentions the controversy surrounding the Isabella Stewart Gardner Museum's expansion plans.
Another Massachusetts-centric review mentions the Fairey arrest and the Rose story ("Though the museum director was let go, the remaining staff has mounted several shows including a recent retrospective that highlighted treasures of the Rose's collection of 7,000 works, valued at $350 million before the recession. While families and businesses everywhere must also make painful economic choices, the Rose Art Museum remains on legal life support reminding patrons all art comes at a cost").
Finally, a review of the decade in Pennsylvania includes a judge's ruling "in a years-long battle that the Barnes Foundation could move its multibillion-dollar art collection to downtown Philadelphia from suburban Lower Merion."
"One of the difficulties with deaccession stems from its connection to our fundamental view of art and museum governance. What is the nature of art? An art museum? Are either permanent? Can we trust the governing structures in our museums? Our inability to find common ground in crafting answers to these questions accounts for the continued difficulty. But if the arts community cannot come together and craft viable solutions to these difficulties, we are going to be left with weaker cultural institutions and risk losing more works as a result of financial difficulty."
Ed Winkleman's Top 10 New York Art World News Stories of 2009 included, at no. 2, the Salander debacle (Ed takes the opportunity to remind us that "Bernie Madoff is to Larry Salander what AIG's losses are to your personal 401(k)") and, at no. 1, the New Museum controversy.
The Boston Globe's Sebastian Smee reviews "a frankly incredible year in art," beginning with the Brandeis-Rose story ("The art world, the media, and a sizable swath of the public voiced strong opposition to the plan, and Brandeis eventually retreated - with mincing steps, it has to be said - from its original position: The museum would stay open, it promised, but it refused to rule out the possibility that art would be sold"), then "things got even weirder" with the arrest of Shepard Fairey "for graffiti-related activity" -- "embarrassing, sure - but worse was to come": Fairey's recent "admission that he had lied to a federal court judge about which photo of Obama he had based his 'HOPE' poster on. He had also destroyed evidence to cover up his lie. His lawyers dropped him. Fairey continues to do his thing, but he looks a little tarnished." Smee also mentions the controversy surrounding the Isabella Stewart Gardner Museum's expansion plans.
Another Massachusetts-centric review mentions the Fairey arrest and the Rose story ("Though the museum director was let go, the remaining staff has mounted several shows including a recent retrospective that highlighted treasures of the Rose's collection of 7,000 works, valued at $350 million before the recession. While families and businesses everywhere must also make painful economic choices, the Rose Art Museum remains on legal life support reminding patrons all art comes at a cost").
Finally, a review of the decade in Pennsylvania includes a judge's ruling "in a years-long battle that the Barnes Foundation could move its multibillion-dollar art collection to downtown Philadelphia from suburban Lower Merion."
"Museum staff have stated that they have tightened their payroll management system to prevent this type of crime from happening in the future"
A former payroll manager at the Brooklyn Museum (mentioned earlier here) has plead guilty to charges of embezzling more than $620,000 by making payments to phantom employees: "According to an affidavit released by the U.S. Attorney’s Office for the Eastern District of New York, Newton’s scam began in 2005 when he created a profile for a fictitious employee known as 'Brooklyn Museum' or 'Brooklyn.' From that time until July 2008, he allegedly issued 138 fictitious payroll checks, most of which were deposited into bank accounts that he controlled, including a joint bank account with his wife. Some of the checks issued in 2008, the affidavit says, were made payable to another fictitious employee known as 'ZYX.'"
Friede Feud Finished
At least tentatively so. The San Francisco Chronicle reports: "Most of the M.H. de Young Memorial Museum's cornerstone collection of Oceanic art will stay put under a deal that San Francisco officials have struck to resolve an inheritance dispute that threatened to have the collection dismantled. The tentative settlement ... will give the de Young clear title to 274 of 398 pieces of Papua New Guinea artwork housed at the city-owned museum - a compilation that nation's ambassador to the United States hailed as an 'unparalleled and extensive collection of masterpieces.'"
It's a complicated story. The Art Market Monitor says it "involves a dizzying number of agreements and cross-conflicts between the heirs" and, "along the way, Sotheby’s became a creditor" too. Kate Taylor took a crack at a summary in the NYT last year. The settlement seems to have some deaccession-ish aspects to it:
"John Friede had paid his brothers more than $22 million of the $30 million [he had agreed to pay them], but legal fees and interest made the shortfall around $10 million ... In April, the city agreed to sell 76 works not at the museum to help pay the Friedes' debts. Only some have been sold. Under the settlement, the balance John Friede owes his brothers will be set at $5.65 million and will be paid from three sources: John Friede's one-third share of the Pierre Bonnard painting 'Le dejeuner' that he owns with his brothers; a portion of a $3.7 million payment from his mother's estate that was to go the de Young to pay for upkeep, promotion and study of the Jolika Collection; and proceeds held in escrow from the sale of some of the works not housed at the museum ...."
It's a complicated story. The Art Market Monitor says it "involves a dizzying number of agreements and cross-conflicts between the heirs" and, "along the way, Sotheby’s became a creditor" too. Kate Taylor took a crack at a summary in the NYT last year. The settlement seems to have some deaccession-ish aspects to it:
"John Friede had paid his brothers more than $22 million of the $30 million [he had agreed to pay them], but legal fees and interest made the shortfall around $10 million ... In April, the city agreed to sell 76 works not at the museum to help pay the Friedes' debts. Only some have been sold. Under the settlement, the balance John Friede owes his brothers will be set at $5.65 million and will be paid from three sources: John Friede's one-third share of the Pierre Bonnard painting 'Le dejeuner' that he owns with his brothers; a portion of a $3.7 million payment from his mother's estate that was to go the de Young to pay for upkeep, promotion and study of the Jolika Collection; and proceeds held in escrow from the sale of some of the works not housed at the museum ...."
Wednesday, December 23, 2009
Claremont Closing Sunday
"Bowing to continued financial pressure and a lack of donations, the Claremont Museum of Art said today that it would close its doors to the public on Dec. 27 and move its permanent collection to a warehouse."
Judith Dobrzynski isn't shedding many tears.
Worthy Cause
I don't usually use the blog for this sort of thing, but wanted to call attention to a really terrific event that our clients Richard and Clara Serra are putting together to benefit The Family Resource Center of The Partnership for the Homeless. A bunch of great artists are participating, and it's hard to think of a more worthy cause -- looking out for the education of homeless kids. Check it out.
Tuesday, December 22, 2009
The Chauffeur (allegedly) Did It
I'm a little late on this art crime story, but worth mentioning:
"Cops say former chauffeur James Biear ripped off the 80-year-old grandson of newspaper magnate Joseph Pulitzer, stealing an Andy Warhol painting worth $220,000, a $64,000 sketch and family heirlooms from [the victim's] Greenwich Village home, police said."
The plan apparently "came to light when Biear's ex-wife told insurance investigators much of his stuff was stolen, a police source said. That's when FBI agents and cops knocked on Biear's door."
"Cops say former chauffeur James Biear ripped off the 80-year-old grandson of newspaper magnate Joseph Pulitzer, stealing an Andy Warhol painting worth $220,000, a $64,000 sketch and family heirlooms from [the victim's] Greenwich Village home, police said."
The plan apparently "came to light when Biear's ex-wife told insurance investigators much of his stuff was stolen, a police source said. That's when FBI agents and cops knocked on Biear's door."
Monday, December 21, 2009
Guilty Plea
Newsday reports: "The former director of Long Island University's Hillwood Art Museum admitted Friday to stealing nine ancient Egyptian artifacts and pocketing $32,000 from the sale of some of them, saying he did so to seek retribution against LIU for mistreating him."
Earlier post here.
Earlier post here.
"We're appealing to get a clarification" (UPDATED)
Even though, on the whole, he prevailed in his lawsuit against the University of Alabama, sports artist Daniel Moore wants the shutout:
"In a November ruling, Senior District Judge Robert Propst said that Moore's paintings of football players don't infringe on any UA trademark so long as no university symbols or logos are used. However, Propst also said that ... Moore has and will infringe on the UA's copyright when he creates reproductions of his artwork that 'include any University of Alabama football uniforms on mini-prints, mugs, cups, calendars, flags, towels, T-shirts or any other mundane products.'
"Stephen Heninger, Moore's attorney, disagrees. Because Propst ruled that Moore's artwork is protected, that artwork should be able to be transferred to coffee mugs and the like. 'We think it's clear,' Heninger said. 'We own the copyright of the paintings. They're protected, so we have the right to make reproductions. We're appealing to get a clarification.'"
Alabama plays Texas for the national championship Jan. 8.
UPDATE: An important correction from Sergio Muñoz Sarmiento. The national championship game is Jan. 7, not the 8th.
He also likes Texas in the upset. I say the Tide rolls, by at least two touchdowns.
On Moore's appeal, he says "it seems pretty clear cut. If Moore owns the copyrights to his own paintings, and they don’t include any Tide logo or trademarks, then it seems to me he’s in the clear." I'm not so sure about that. When it comes to merchandise (t-shirts, coffee mugs, etc.), it's a much closer call.
"In a November ruling, Senior District Judge Robert Propst said that Moore's paintings of football players don't infringe on any UA trademark so long as no university symbols or logos are used. However, Propst also said that ... Moore has and will infringe on the UA's copyright when he creates reproductions of his artwork that 'include any University of Alabama football uniforms on mini-prints, mugs, cups, calendars, flags, towels, T-shirts or any other mundane products.'
"Stephen Heninger, Moore's attorney, disagrees. Because Propst ruled that Moore's artwork is protected, that artwork should be able to be transferred to coffee mugs and the like. 'We think it's clear,' Heninger said. 'We own the copyright of the paintings. They're protected, so we have the right to make reproductions. We're appealing to get a clarification.'"
Alabama plays Texas for the national championship Jan. 8.
UPDATE: An important correction from Sergio Muñoz Sarmiento. The national championship game is Jan. 7, not the 8th.
He also likes Texas in the upset. I say the Tide rolls, by at least two touchdowns.
On Moore's appeal, he says "it seems pretty clear cut. If Moore owns the copyrights to his own paintings, and they don’t include any Tide logo or trademarks, then it seems to me he’s in the clear." I'm not so sure about that. When it comes to merchandise (t-shirts, coffee mugs, etc.), it's a much closer call.
Randolph Resolution
The Randolph College deaccessioning lawsuit is over: "Lynchburg Circuit Court Judge Leyburn Mosby signed an order distributing the $500,000 bond that secured the temporary injunction that barred the sale of the art in late 2007. The bond is to be divided with $300,000 going to Randolph College. The remaining $200,000 and the interest on the bond is to be returned to the plaintiffs who raised the money in an attempt to stop the sale of four paintings from the museum."
Randolph's president issued a statement saying: "While we are pleased with this settlement, it in no way recovers all of the damages incurred by the College as the result of the injunction preventing the sale of the paintings at a high point in the art market."
Randolph's president issued a statement saying: "While we are pleased with this settlement, it in no way recovers all of the damages incurred by the College as the result of the injunction preventing the sale of the paintings at a high point in the art market."
"No one wants to sell your collection ..."
"... but we’ve had the collection in storage for 3 years and we felt that this was urgent enough that we needed these funds to save this program."
The Hollywood Entertainment Museum is auctioning off items from its collection, not to buy more Hollywood memorabilia, but to preserve its educational programs. Quick, someone alert the Deaccession Police!
Aren't these items held in the public trust, to be accessible to future generations of Hollywood memorabilia lovers? The museum is a 501(c)(3) that enjoys the same tax benefits as any art museum. So why is it okay for it to sell its collection but a great crime when a museum wants to sell a work and use the proceeds for anything other than buying more art (including to keep from having to shut its doors)? If it's not the tax exemptions that convert a museum's assets to the "public trust," what is it?
Speaking of which, let me recommend a good piece by Evelyn Brody and John Tyler at PhilanthropyRoundtable entitled How Public is Private Philanthropy? An excerpt:
"There is a long list of tax-favored treatments ... that various levels of government afford to individuals and businesses ..., without impairing or prejudicing the underlying autonomy and private nature of the beneficiaries of such treatment. For example, individuals enjoy deductions for the mortgage interest and property taxes they pay on their homes; the exclusion of ... gain on the sale of their principal residences; deductions or exclusions for retirement contributions, health insurance, and tuition; and tax credits for higher education, dependent care, and children. Government does not claim that it is thereby entitled to dictate the lifestyle, consumption and savings patterns, childbearing and child-rearing choices, furniture tastes, or college majors and courses of study, or to make any other such decisions for individuals who claim these deductions and credits."
As I've said before, no one thinks "we" own every asset of every every church, school, etc. in the country. What makes works of art any different?
The Hollywood Entertainment Museum is auctioning off items from its collection, not to buy more Hollywood memorabilia, but to preserve its educational programs. Quick, someone alert the Deaccession Police!
Aren't these items held in the public trust, to be accessible to future generations of Hollywood memorabilia lovers? The museum is a 501(c)(3) that enjoys the same tax benefits as any art museum. So why is it okay for it to sell its collection but a great crime when a museum wants to sell a work and use the proceeds for anything other than buying more art (including to keep from having to shut its doors)? If it's not the tax exemptions that convert a museum's assets to the "public trust," what is it?
Speaking of which, let me recommend a good piece by Evelyn Brody and John Tyler at PhilanthropyRoundtable entitled How Public is Private Philanthropy? An excerpt:
"There is a long list of tax-favored treatments ... that various levels of government afford to individuals and businesses ..., without impairing or prejudicing the underlying autonomy and private nature of the beneficiaries of such treatment. For example, individuals enjoy deductions for the mortgage interest and property taxes they pay on their homes; the exclusion of ... gain on the sale of their principal residences; deductions or exclusions for retirement contributions, health insurance, and tuition; and tax credits for higher education, dependent care, and children. Government does not claim that it is thereby entitled to dictate the lifestyle, consumption and savings patterns, childbearing and child-rearing choices, furniture tastes, or college majors and courses of study, or to make any other such decisions for individuals who claim these deductions and credits."
As I've said before, no one thinks "we" own every asset of every every church, school, etc. in the country. What makes works of art any different?
"And of course, hundreds of others have cut staff, hours, programs"
Judith Dobrzynski counts 26 museum closures in 2009.
Poster Boy Update
Poster Boy (profiled earlier this year by Randy Kennedy in the NYT) agreed to a plea deal requiring 210 hours of community service.
Wednesday, December 16, 2009
Fresno museum set to close
"Absent a miracle," it looks like the Fresno Metropolitan Museum is about to shut its doors. The Fresno Bee has the story here.
I found this part interesting. Apparently, a limited liability company called Friends of The Met was formed to raise money for the museum. If the museum were to close, the LLC "would be repaid at least in part by the sale of the museum's assets, including its art collection" (my emphasis).
So let me get this straight. A struggling museum cannot sell art to keep from closing. That would be awful, a violation of the public trust, repulsive, Stalinesque, you know the rest.
But if it closes, what happens to the art?
It's sold, to pay off creditors of the museum.
Does that really make sense to anyone?
I found this part interesting. Apparently, a limited liability company called Friends of The Met was formed to raise money for the museum. If the museum were to close, the LLC "would be repaid at least in part by the sale of the museum's assets, including its art collection" (my emphasis).
So let me get this straight. A struggling museum cannot sell art to keep from closing. That would be awful, a violation of the public trust, repulsive, Stalinesque, you know the rest.
But if it closes, what happens to the art?
It's sold, to pay off creditors of the museum.
Does that really make sense to anyone?
"This is the only time I can think of when someone has allegedly stolen something and soon thereafter has consigned it himself to public auction"
The New York Observer on an unusual art theft investigation.
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