Monday, August 14, 2017

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.

Wednesday, August 02, 2017

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.”

Monday, July 31, 2017

"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.

Thursday, July 27, 2017

"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

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?

Monday, July 24, 2017

"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."

Saturday, July 22, 2017

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?