"Bizarre Pollock forgery scam"

Details here.

Bizarre as they are, Tim Schneider points out that "narrative is only a few fractions of an inch ballsier than a narrative that suckered multiple high-level collectors in New York and other industry hubs for decades" -- i.e., the Knoedler forgeries.

The logical endpoint of the anti-deaccessioning position (UPDATED)

LA Times art critic Christopher Knight has a solution to the Berkshire Museum's financial difficulties:

"Don’t sell the art. Do close the museum. Start behaving like the charitable institution you are supposed to be. Spend the next several years responsibly overseeing the dispersal of the collection."

Let that sink in, folks.  This is what the Deaccession Police believe.  (Another example here.)

They would rather a museum close than sell a single work.  (The sale of 400 works, on the other hand, just with a different use of proceeds -- that's perfectly fine.)

Previous discussions of Knight's contributions to the deaccessioning debate here and here.

UPDATE:  "With friends like Knight, the AAM and AAMD hardly need enemies. Hopefully, the dogmatism of the deaccessioning police will finally encourage more sensible minds to consider the actual consequences of the dogma."

"For most litigants, however, the ruling seems to reinforce the sensible view that a defendant should not waste its time with a 12(b)(6) motion on fair use unless its 'aesthetic alterations' to the plaintiff's work are immediately apparent and compelling."

Bob Clarida and Robert Bernstein in the NYLJ [$] on Richard Prince's latest.

Tell me again about the public trust (more than 400 photos from MoMA edition)

MoMA is selling more than 400 photos from its collection at Christie's over the next nine months.

I thought I very recently read somewhere that "one of the most fundamental and longstanding principles of the museum field is that a collection is held in the public trust and must not be treated as a disposable financial asset," but I must be mistaken.  If that were true, this sale could not be happening.

You might also think that the sale of these four hundred works "sends a message to existing and prospective donors that museums can raise funds by selling parts of their collection, thereby discouraging not only financial supporters, who may feel that their support isn’t needed, but also donors of artworks and artifacts, who may fear that their cherished objects could be sold at any time to the highest bidder to make up for a museum’s budget shortfalls."  But again, you'd be mistaken.

These are funny "principles."  Apparently they only apply some of the time.

Groundhog Day

I’ve basically been avoiding the latest deaccessioning controversy, in large part because it’s all so depressingly familiar – the usual suspects compete with each other to see who can seem the most outrageously outraged by the outrageous violation of the “ethical” code of those learned ethicists at the AAMD, and then some sane voices arise in response but are simply ignored.  So, as my contribution to the “discussion,” let me call attention to a few of those saner voices in particular.

First, a new member of my Deaccessioning Hall of Fame:  Mass MoCA’s Joe Thompson, who notes that the decision has “drawn more than its fair share of criticism that is at once overwrought and seemingly oblivious to stark facts, which reminds me of the powerful effect of art on even the most generous and considerate of souls, many of whom are friends and respected colleagues,” says “Let's get real: The museum's survival is at stake,” and closes with:  “The dedicated staff and trustees of the Berkshire Museum are not ‘douchebags’ or ‘plunderers’ or ‘phantoms’ or ‘treasonous.’ They are smart, hard-working professionals and attentive, generous volunteers who are tending one of our region's most important institutions at a precipitous moment in its history.” I would add that they’re not repulsive or Stalin-esque either.

Next is Brian Frye (who will be the first scholar-in-residence once we open the Hall of Fame):

“[T]he AAM and AAMD tacitly admit that there is no legal prohibition on museums selling artworks and using the proceeds for anything they like. But they argue that selling artwork for any purpose other than buying more artwork is ‘unethical.’ Why? It is unclear and unstated. Apparently, the AAM and AAMD think it would be ‘unethical’ for a museum to sell an artwork in order to, say, fund free admission or sponsor community arts activities. Or, as in the case of the Berkshire Museum, to prevent bankruptcy and chart a new institutional direction.  They can't be serious. Indeed, merely stating their argument exposes its absurdity. As the museum and its supporters have argued, the museum's decision is not only ‘ethical,’ but also probably required by the board's fiduciary duty to the organization.”

And last, Tim Schneider says the outrageous outrage in response to the move is “an ideologically pure, dependably crowd-pleasing position to take,” but “its naiveté also makes me want to start throwing large objects long distances out high windows.”

"Is the art world's conventional wisdom on copyright infringement and fair use driven by nature of the use or the nature of the parties?"

"In other words, does the art world simply think it is fair use if an 'artist' (i.e. insider) copies a 'professional' (i.e. outsider), but infringement if it is the other way around? Zaretsky implies the answer is 'yes.' And I am inclined to agree with him. If anything, the infringement case against Prince is stronger than the cases against LG and Jenner. And yet the art world (mostly) seems to think that LG and Jenner are infringing, but Prince is not. In other words, artists want the right to copy others, but also the right to stop others from copying them. Understandable, but not terribly compelling."

Brian Frye at the Faculty Lounge, responding to my post from last week.

"Canada Debates Whether Gift of Leibovitz Photos Is Also a Tax Dodge" (UPDATED)

The New York Times has the story here.  Michael Rushton has some Twitter thoughts starting here.

UPDATE:  "A Canadian government panel has decided against certifying an entire collection of 2,070 photos by the photographer Annie Leibovitz as culturally significant, as had been sought for tax purposes by the Art Gallery of Nova Scotia, the museum that owns them."

Keeping Up (UPDATED)

In what I believe is the first appearance by a Kardashian at the blog (not counting Kanye), artist Sarah Pope has brought a copyright infringement suit against Kylie Jenner.  Story here.  The Daily Beast story includes the following:

"'Copyright doesn’t protect ideas but it does protect expression, and there are a lot of similarities between Pope’s image and Jenner’s beyond the idea of a neon mouth,' Robert Clarida, an intellectual property lawyer and author of the treatise Copyright Law Deskbook, told The Daily Beast. 'This is a pretty strong case and one that would have to go to jury, and that’s bad news for Kylie because as a defendant you want to get it thrown out on a motion to dismiss or on summary judgment. But this case wouldn’t lend itself to that.'"

Brian Frye tweets:  "In theory, I don't see how the concept of a lip bite surrounded by neon can be copyrightable subject matter. But no predicting courts."

My question, again, is:  Can you think Richard Prince should win but Kylie should lose?  Can those positions be reconciled?  Or do the two cases stand or fall together?

UPDATE:  Settled.

"As the court notes, cases finding fair use at the motion to dismiss stage are rare."

Venkat Balasubramani:

"I’m intrigued by the decision by Prince’s lawyers to file a motion to dismiss. That seemed like a long shot here, but perhaps they were hoping the court would take the opportunity to convert the motion into one for summary judgment."

In the same post, Eric Goldman adds:

"Prince’s failure to win the fair use defense here isn’t very surprising. His fair use defense will get more traction on the summary judgment motion (though there are no guarantees of victory). However, to me, the adjudicatory costs of a fair use defense are one of its weaknesses. Prince may be able to afford the litigation costs, but many mom-and-pop content producers will fold long before the case can get to summary judgment or trial."

"He is up front about the fact that his proposed catalogue raisonné addition 'has no connection to the official Andy Warhol Catalogue Raisonné sponsored by the Andy Warhol Foundation for the Visual Arts.'"

Richard Polsky is expanding his Warhol authentication services to include an "addendum" to the Warhol catalogue raisonné, which will include "works that have been previously rejected by the Andy Warhol Foundation for the Visual Arts."

"I'm 100 percent sure that they are in Ireland. Hundred percent sure. No doubt in my mind."

Was the IRA involved in the Gardner Heist?

Bananas

I'm a little late on this one too, but the 9th Circuit heard oral argument in the ridiculous monkey selfie lawsuit last week.  It sounds like it didn't go so well for the monkey side:

"'There is no way to acquire or hold money. There is no loss as to reputation. There is not even any allegation that the copyright could have somehow benefited Naruto,' said Judge N Randy Smith. 'What financial benefits apply to him? There’s nothing.'

"At one point, Judge Carlos Bea considered the question of how copyright passes to an author’s heirs.

"'In the world of Naruto, is there legitimacy and illegitimacy?' Bea asked. 'Are Naruto’s offspring "children", as defined by the statute?'

...

"The lawyer for Slater’s publisher, which is also a defendant, also raised the question of whether Peta has even identified the right monkey – something that Slater [the photographer] disputes.  'I know for a fact that [the monkey in the photograph] is a female and it’s the wrong age,' he said. 'I’m bewildered at the American court system. Surely it matters that the right monkey is suing me.'"

Speaking of appropriation

Donald Graham's daughter had this to say about Richard Prince's use of her father's work:

"That Richard Prince stole his work for his crass commercial purposes is not only against the law, it is an affront, an ugly reminder that successful artists such as Richard Prince believe themselves beyond the law. They can steal now and pay later from their profits."

Actually, that wasn't Graham's daughter at all; it's Lygia Pape's daughter, who just brought an infringement lawsuit against LG Electronics. (I changed a few words.)

The challenge for those seeking to make sense of this area of the law is to distinguish the two cases.  Why are some kinds of appropriation okay and others not?  What is the theory?

Bringing Home the Bacons

Three of them, at least.  Story here.  Background here.

"What can account for this peculiar set of rules, which seem to prevent museums ... to take actions that are not only consistent with, but would often seem otherwise mandated by their charitable purposes?"

At the Faculty Lounge, Brian Frye has some thoughts inspired by the fact that most museums can only show 2-4% of their collection at any given time.  And he teases an upcoming article tentatively titled "Deaccessioning Norms are Unethical."  I love it already.

"How much can you conserve an artwork before it becomes something entirely different?"

"This question is at the heart of a lawsuit filed in New York earlier this week by the artist Cady Noland."

Motion to dismiss denied in Prince-Graham fair use case (UPDATED)

I was on a plane all day yesterday, so am a little late getting to this.  Laura Gilbert has the story in The Art Newspaper.  For background, start here.  More later after I've had a chance to read the decision.

UPDATE:  Okay, I've had a chance to read it.  It's a long opinion, but it can basically be boiled down to: the fair use question is "a fact-sensitive inquiry that cannot be completed ... on a motion to dismiss."  That's it; that's all there is to it.  "[B]ecause the Court can only review the narrow set of facts that appear in the Complaint and its appended exhibits -- and because all of the plausible factual allegations contained in those documents must be viewed in the light most favorable to [Graham] -- the Court cannot conclude that any of the four fair use factors favors [Prince]."

"Graffiti Artists Are Increasingly Lawyering Up to Fight Fashion Copycats"

From The Fashion Law Blog.

Should an artist's testamentary direction to destroy unfinished work be honored? (UPDATED)

From the New York Times, the case of Edward Albee:

"'It presents a moral and legal quandary,' said John Sare, a partner at Patterson Belknap Webb & Tyler and the co-author of 'Estate Planning for Authors and Artists.' 'You may feel a moral obligation to do as you’ve been asked, but that may be in competition with a moral obligation to do what’s best for the history of arts and letters and a legal obligation to conserve the assets of the estate for the beneficiaries.'

"Eva E. Subotnik, an associate professor at St. John’s University School of Law, argued for some skepticism about such provisions.  'There is something special about these kinds of assets — they’re not just like a mansion or a fancy watch, but they’re socially valuable, and that has to play into the calculus,' Ms. Subotnik said. 'I definitely argue against full-throttle enforcement of artistic control after death.'

"But another expert on the subject, Lior J. Strahilevitz, a professor at the University of Chicago Law School, disagreed. 'Part of what we value in a great artist is not just raw ability but the ability to curate, and it’s frequently the case that artists build great reputations by being selective about what they show to the world,' he said. 'It’s problematic to force Albee to share these plays when he didn’t think they were good enough.'"

UPDATE:  Sergio Muñoz Sarmiento connects this to another current controversy over artistic control -- David Mamet's discouragement of post-show discussions -- and says:  "Why is it that if an artist wants to control her artistic property or, god forbid, destroy it, the general public seems obliged to shriek and criticize the artist? Why is it that this public thinks they know better than the artist as to the artwork’s fate and, more so, that they have some “right” to read or view it?"

Ann Althouse agrees:  "Mamet doesn't need to prove that there's something objectively wrong with post-show talks. He's the artist, and he's determining how he wants his play shown."

We all know about the rejoining-its-sister exception to being held in the public trust, right?

Katya Kazakina:  MoMA Sells Rare Masterpiece.

It's a nine-foot tall Leger mural, which was commissioned in 1938 by Nelson Rockefeller for his new apartment.  He also commissioned another mural by Matisse at the same time, which is now owned by the Museum of Fine Arts, Houston, which was the buyer of the Leger (for in the neighborhood of $6 million).

So, because the two murals are being "reunited," obviously the Leger was no longer held by MoMA in the public trust, to be accessible to present and future generations.  And obviously potential future donors will not hear about this sale and ask, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?  Just check the fine print in your Deaccession Police manual, under "R" for reuniting companion works.

One other interesting thing about the sale reunification:  it was a private sale, at Art Basel, rather than, as is more typical when museums sell, at auction.  David Norman is quoted as saying "'sometimes museums also place works privately' with dealers if they have clients willing to pay higher prices."  My question is: how do you know the price the client is willing to pay is "higher" unless you put it up at auction?  How do we know there wasn't someone else out there willing to pay more than $6 million for the work?