Thursday, December 28, 2006

Today in Hermitage Law

David Nishimura rounds up the latest legal news regarding the Hermitage.

Rockwell Dispute(s)

The New York Times has a front-page story today on a family squabble involving the estate of Kenneth Stuart, the longtime art director of The Saturday Evening Post and close friend of Norman Rockwell. The value of the estate primarily lies in three Rockwell paintings Stuart's sons "say are worth about $25 million." (A Rockwell painting sold at Sotheby's last month for $15.4 million.) In 2004 a Connecticut court ordered one of the sons, Ken Jr., to pay $2.3 million to the estate; he has since filed for bankruptcy protection.

Near the end, the story mentions that "the parties agree that Ken Jr. did perform one valuable service. When Curtis Publishing [which publishes The Saturday Evening Post] claimed in 2001 that the paintings belonged to the magazine and not to the brothers, Ken Jr. sued on behalf of the family partnership. In September, a federal judge said that Curtis had waited too long to cry foul, clearing the way for any future sale."

That decision, Stuart & Sons, L.P. v. Curtis Publishing Company, is at 456 F.Supp.2d 336 (D. Conn. 2006). The court noted that "since at least 1962, Stuart, Sr. held himself out, and was publicly recognized as the owner of the Paintings in numerous publications, including books about Rockwell and gallery and museum catalogues." Curtis also wrote to Stuart in 1986 asking about the paintings, and his lawyer wrote back asserting his ownership. And, in 1994 Stuart loaned the paintings to the Norman Rockwell Museum, and the museum "has always identified the Paintings as the property of the Stuart family, both at the Museum and on its web site." (While the works were on loan, a member of the family that owns Curtis was on the museum's board of directors.) All in all, the court found, Stuart and his family "repeatedly, and for the better part of ... four decades ..., publicly asserted that they were 'owned' by Stuart, Sr., or were 'the property of,' or belonged to 'the collection of' Stuart, Sr., and his wife." Accordingly, Curtis's ownership claim was barred, both by Connecticut's three-year statute of limitations for conversion claims and by the looser equitable doctine of laches. I assume the decision is on appeal, but it's a pretty tightly reasoned opinion and a reversal seems like a real longshot.

Wednesday, December 27, 2006

Art Stolen for Scrap Metal

The UPI reports:

"Thieves in New Orleans dismantled and stole thousands of dollars' worth of sculptures by artist John T. Scott, apparently for the metal more than the art. The Times Picayune newspaper reported that the thieves were apparently after the bronze Scott worked with and they'll likely sell it for hundreds of dollars."

Scott received a MacArthur "genius" grant in 1992. He had a career retrospective at the New Orleans Museum of Art last year, which you can read about here.

I wonder what Noah Charney would say about this one.

Philanthropy News

Citing the Dec. 2006 Art Newspaper, Tyler Cowen reports:

"The British Museum is one of the world's premier arts institutions. But last year it spent less than a million pounds on new acquisitions. Compare this to the more than 55 million pounds spent by the Metropolitan Museum of Art in New York, or the more than 20 million pounds spent by MOMA. The Met figure is inflated above normal levels because of the purchase of an expensive Duccio painting but the comparison remains. The Louvre spent 16.8 million pounds in the same year, coming in third internationally. The Getty was fourth and the Rijksmuseum fifth."

Earlier post relating to the Duccio here. Cowen also points to this article on "a Frenchman who has realized the power of decentralized philanthropy" and this one on "NYU's obsession with philanthropy."

Sunday, December 24, 2006

Hula Decision

I mentioned last month a copyright lawsuit in Hawaii by photographer Kim Taylor Reece over a stained-glass artwork he thought infringed one of his photographs of a hula dancer. Round one has now gone to the defendants: on Friday, the District Court denied Reece's request for a preliminary injunction.

According to the Honolulu Star-Bulletin:

"[District Court Judge Michael] Seabright said that while the dancers in both pieces appear to have the same poses, they are depicting a traditional hula movement that is in the public domain and cannot be copyrighted. ... Seabright said the backgrounds of the two pieces are different, and because they are in different media, the feelings they evoke are also different. He also found that the dancers' body positions, even though they are performing the same movement, are not identical. Their hair and attire, including their leis, are also not identical, Seabright said."

I was skeptical of the claim, on just these grounds, in my earlier post.

The Year in Mural Destruction

The destruction of Kent Twitchell's Ed Ruscha mural in downtown Los Angeles gets a mention in a couple of year-in-review pieces this weekend in the LA Downtown News and the Los Angeles Times.

First, from the Downtown News:

"Art lovers across the city were aghast on June 2 when a work crew painted over Kent Twitchell's 11,000-square-foot mural 'Ed Ruscha Monument.' In just a few hours, the 19-year-old creation on the side of YWCA Job Corps' new building at 1016 S. Olive St. was obliterated. Twitchell was stunned, and people clammed up when asked how such a disgrace occurred. A Twitchell lawsuit is pending."

And from the Times (which actually includes some news, highlighted in bold below, that I haven't seen reported before):

"Kent Twitchell's 'Ed Ruscha Monument,' a six-story portrait of artist Ruscha completed over the course of nine years, disappeared from the side of a Job Corps training center in downtown Los Angeles in June, sparking public outrage and a legal battle between building owners, contractors and the artist. In August, Twitchell, filed suit against several 'nongovernmental entities' that 'willfully and intentionally desecrated, distorted, mutilated and otherwise modified' the work by painting over it. The defendants have agreed to hire a consultant to determine whether the paint can be removed without damaging the mural."

The Times article also has good year-end summaries of the Klimt restitution and various Getty museum issues.

Kimmelman on the Year in Art (and Law)

Quite a bit of law in Michael Kimmelman's year-in-review piece in Sunday's New York Times:

"The legal and public relations struggle over the return of antiquities to Italy and Greece by American museums like the Metropolitan and the Getty became an occasion this year for much thoughtful hand-wringing, raising the big question: Where, as a society, will we stand on the issue of cultural property? ...

"Restitution is obligatory when international laws are broken. But evidence is frequently vague. Ethics can be too. Ask the archaeologists who have been trying to piece together what’s left of the Bamiyan Buddhas, blown up by the Taliban in 2001 in Afghanistan, whether objects necessarily “belong” to the people who now occupy the land where the art comes from.

"The Met transferred title of a famous Greek vase and 20 other objects to Italy this year: the booty of a long-dead empire heading back to the modern state that happens to be on its soil. The law was served, and the gesture seemed savvy.

"At the same time American museums retained, and continue to retain, art dubiously collected from countries in Africa and Southeast Asia .... How far should we go to purge our museums? At the heart of the patrimony issue is American self-identity: capitalism, free trade and the democratic ideal.

"And is there any way to describe the escalating orgy of spending on art this year but as obscene? Collectors were paying upward of $130 million for Pollocks and Klimts, sums that make a skeptic ponder the other uses to which such fortunes could be put. The art world seems content, damn the potential long-term cost of being reduced to a mere investment vehicle.

"A few years back a lawyer for Jewish families seeking restitution from Swiss banks provoked a scandal when it became known that he took as a fee some $4 million. This year when members of a Jewish family sold the Klimts that Austria had finally returned to them, the family’s lawyer is said to have pocketed 40 percent of the $300 million they fetched. (Who knows how his contingency fee influenced the family’s decision to sell the art?) Almost nobody blinked."

Friday, December 22, 2006

The Morning After

When I was on WHYY in Philadelphia when news of the pending Gross Clinic sale first broke, my last word was a prediction that the offer would, in fact, be matched (hey, even a stopped clock ...). Stephan Salisbury has further details in The Philadelphia Inquirer today on just how it was accomplished:

"In total, over the last several weeks, about $30 million has been raised ..., officials said. Wachovia Bank has agreed to provide the backup financing that allowed the museums to sign an agreement of sale yesterday with Jefferson. No city or other government money is involved in the purchase. ... Museum officials likened Wachovia's role to the provision of bridge financing.
Fund-raising for the painting continues, the officials emphasized. Jefferson had set a Dec. 26 deadline for local institutions to put their money on the table. Now, however, the university has extended that deadline to Jan. 31. If a gap exists between contributions and sale price at the end of January, Wachovia will cover it, the officials said. Herbert Riband, vice chairman of the [Pennsylvania Academy of the Fine Arts] board, said it is possible that some works might be sold from museum collections to help cover the costs of the transaction. But he said that was only a possibility."

The Philadelphia Museum of Art and the Pennsylvania Academy of the Fine Arts will share ownership of the painting. The Inquirer also has a sidebar story on the five biggest donors. Carol Vogel's piece in today's New York Times is here.

I mentioned on the radio, and in my first post on the sale, that the parties here had adhered to the procedures New York Times art critic Michael Kimmelman had proposed in the wake of the New York Public Library's sale last year of Durand's "Kindred Spirits":

"[W]henever art is sold by a public institution -- which, receiving tax breaks, can be expected to make some sacrifice toward the public good -- local museums should be given a reasonable period of time to match the sale price. That's it. Just a shot at preserving the public's heritage for the public."

A lot of folks thought that wasn't good enough in this case because coming up with $68 million in 45 days was too tall an order. I pointed out on the WHYY appearance that, in the case of the Durand sale, Philippe de Montebello, director of the Met, was quoted as saying he would have preferred a live auction (rather than the sealed bid procedure used in that case), because then "I could have gone to the auction with a donor who could, on the spur of the moment, cover a higher bid." In any event, the end result here proved the doomsayers wrong. It's amazing what can be accomplished when people are sufficiently motivated.

Derek Fincham at the Illicit Cultural Property blog says "it seems all the parties involved, with the exception the original purchasers, have come out looking good. The University gets its funds, the work has received a great deal of publicity and should be visited a great deal in the coming months, and Philadelphia has kept one of its prized local works." (Not everyone is happy, though.)

Fincham also notes that "at the heart of the decision to sell the work lies a question which often plagues cultural property. Do very beautiful works have a single home, or can they be enjoyed and appreciated anywhere? That's a question without an easy answer."

In that connection, Salisbury's Inquirer story includes the following piece of news:

"[Philadelphia Mayor] Street said he is sending legislation to City Council that would 'establish a registry of all important' objects and works of art in the city. Such a registry, he said, would serve as an alarm system if a work is threatened with sale or removal. He offered no further details yesterday."

This issue also came up in the Michael Kimmelman piece mentioned above:

"From time to time, American museum directors talk about following the lead of other countries by drawing up lists of objects so important to the nation that they should never be sold. But the idea never goes anywhere. We're a rich country. We're capitalists. Our museums are stuffed with treasures bought and plundered from elsewhere. We benefit from a free market. Our museums are our argument for the values of dispersing global riches, for spreading multiculturalism. Being diverse, we are uncomfortable with talk about a 'shared history,' which is the basis for lists of cultural treasures. Lists are accounts of collective patrimony. 'Who is going to create such a list here?' Mr. de Montebello asked. 'The great strength of the United States is that it's not burdened by the regulations that cause entrepreneurial sclerosis in other countries. Our system is opportunistic, but on the whole it works.'''

(In fact, the above Kimmelman quote, proposing the "opportunity-to-match" rule, actually begins: "So here's a modest proposal. Forget lists. Instead, whenever art is sold by a public institution ....")

Further reaction to all of this from Lee Rosenbaum here.

Thursday, December 21, 2006

BREAKING: Gross Clinic Offer Matched

From the Philadelphia Inquirer:

"At a news conference today, Mayor Street announced that Thomas Eakins' masterpiece The Gross Clinic would remain in Philadelphia. The local fund-raising effort to buy the painting has received more than 2,000 contributions from more than 30 states, sources at the Philadelphia Museum of Art said. Among them were $10 million from Leonore Annenberg, and $3 million each from H.F. (Gerry) Lenfest, Joseph Neubauer, and the Pew Charitable Trusts. ... Officials said the [painting] would be on view at the Art Museum in the near future."

More later.

Skip the Light Fandango

The original keyboardist with 60's rock band Procol Harum has won his joint authorship lawsuit against his former bandmates over the hit "A Whiter Shade of Pale." The New York Times story is here (second item). A London court awarded him 40 percent of the song’s copyright -- going forward (the court dismissed his claims for past royalties because he had “sat back” for 40 years before asserting his rights).

Professor Patry has a great post up on the decision. Among other things, he runs through the differences between U.S. and U.K. law when it comes to joint authorship, including the following:
  • The concept of a "40% author" doesn't apply in the U.S. "In the U.S., joint authors own an undivided interest in the whole according to the number of co-authors: two own 50%, three 33 1/3%, etc. This is without regard to the respective qualitative or quantitative contributions: with two co-authors each own a 50% interest even if one contributed only 10% to the work." (He adds that "because of this, one would think that the threshold for being a joint author would be high [under U.S. law], but it really isn’t, aside from having to contribute expression and having an intent to be a joint author.")
  • "Another difference between the two countries’ laws ... is that in the U.K., joint authors cannot license a work without the others’ permission, whereas in the U.S., joint authors can unilaterally license the work on a non-exclusive basis."
  • "But the biggest difference is that in the U.S., [the] case would have been dismissed at the outset on statute of limitations grounds; the song was, after all, written and performed and credit taken in 1967."

Wednesday, December 20, 2006


Apparently there's an art law connection in the Yoko Ono blackmail case:

"The prosecutor also said Karsan spoke about other crimes he could have done, such as stealing Ono's artworks. She said investigators found a DVD at his home with photos of every piece of art in Ono's home in the Dakota ...."

That's from the story. More from The New York Times here.

Tuesday, December 19, 2006

Big Eakins News

In the Philadelphia Inquirer this morning, Stephan Salisbury reports that Mayor John Street has withdrawn his nomination of The Gross Clinic for designation as a historic object. "In a one-sentence Dec. 14 letter to ... the Philadelphia Historical Commission, Street wrote that he was acting 'in accordance' with a Dec. 4 'settlement agreement' between the city and [Jefferson] university." The commission has canceled the two meetings that had been scheduled this week to review the nomination.

So it's down to the matching process now -- one week left to raise the $68 million required to match the sales price. Salisbury quotes Anne d'Harnoncourt, director of the Philadelphia Museum of Art, as saying: "I'm optimistic. I can't really go into any more detail. Things are moving very fast." Lee Rosenbaum talked to the major gifts officer of the museum, who says they are "well over 50% there" and that the museum is in the process of "closing some gifts" with "a lot of our nearest and dearest."

Lee adds that "the larger fundraising issue" is "whether the 'nearest and dearest,' feeling they've done their bit for art with this emergency rescue, may be less generous towards less high-profile but equally urgent cultural needs in the coming year."

Chihuly Lawsuit Settled

From the Seattle Times this morning:

"Glass artist Dale Chihuly and a rival artist he sued for copyright violations announced Monday that they have settled their 14-month-old court battle .... In a terse announcement Monday afternoon, Chihuly and Redmond glass artist/entrepreneur Robert Kaindl announced that their dispute 'has been resolved to their mutual satisfaction.' Neither side would discuss the settlement or claim victory. But the art works being offered on Kaindl's Web sites — including styles disputed in the suit — remain unchanged."

Chihuly had settled with the other of the two defendants -- one of his former studio assistants -- over the summer.

Monday, December 18, 2006

“The art trade is the least transparent and least regulated commercial activity in the world”

Interesting piece in the New York Times Magazine yesterday on Noah Charney, who's getting a doctorate at Cambridge University "in a field he appears to have invented: the use of art history, combined with the more conventional tools of criminology, psychology and deductive logic, to help solve modern-day art thefts and to prevent future art crimes."

The story reports that "the stolen-art trade is now an international industry valued as high as $6 billion per year, the third-largest black market behind drugs and arms trafficking. Yet the solution rate in art crime is reported to be a startlingly low 10 percent. Investigations are hampered by the cult of secrecy within the art world itself — museums sometimes don’t report thefts, fearing to reveal their vulnerability to future crimes and thereby hurt their chances of receiving new donations."

Charney's idea is "to apply to art thefts the techniques of criminal profiling that forensic psychologists use to help solve serial rapes and murders. To supply the necessary raw materials for this analysis, he has begun to compile a database of art thefts that records salient details: the way the work was stolen, for instance, along with biographical information about everyone involved, including thieves, fences and the collectors who eventually bought the purloined artwork." He wants to "establish a clearer, more empirically rigorous understanding of art crime."

The article gives his views on several high-profile art thefts: the 1990 roberry at the Isabella Stewart Gardner Museum in Boston (arranged by a wealthy connoisseur with his eye on specific works); the 2004 theft of “Scream” from the Munch Museum in Oslo ( “Russian Mafia types”); and the December 2005 theft of Henry Moore’s 2-ton bronze “Reclining Figure,” which was accomplished using a flatbed Mercedes truck with a crane attached (melted down to make small forged antiquities).

The next step for Charney is the establishment of a "nonprofit consultancy based in Rome that will employ the same international, interdisciplinary approach to art crime that he has used in his scholarship, with a staff trained in criminology, statistics, museum security and art history." He has applied to the Getty and Ford Foundations to raise the $1.7 million he thinks he'll need for the first three years.

Derek Fincham thinks it's an interesting idea, but wonders how effective it will be: "The article is pretty slim on the details for how exactly his research tackles the problem. .... At the end of the day, the driving force behind art theft is the high value of these objects, and the expense of providing adequate security, especially in museums and houses which receive fewer visitors, and cannot afford adequate security."

Friday, December 15, 2006

Christopher Knight on the Eakins Kerfuffle

Christopher Knight's art-year-in-review for the L.A. Times includes the following:

"Philadelphia's Thomas Jefferson University announced the joint sale of Thomas Eakins' monumental 1875 'The Gross Clinic,' arguably America's greatest 19th-century painting, to Washington's National Gallery and a not-yet-built Arkansas museum planned by a Wal-Mart heiress. 'Foul!' squealed the local art establishment — the same folks who are busily enabling destruction of America's greatest privately assembled Modern art collection, the nearby Barnes Foundation. The spectacle of rank hypocrisy is — well, gross."

11 Days To Go

Carol Vogel has a very good piece in tomorrow's New York Times on The Gross Clinic saga.

She says the city has raised "substantially" more than the $23 million that had reportedly been pledged as of Nov. 29. (Local institutions have until Dec. 26 to match the $68 million offer for the painting.) She also discusses the historic designation process that's now underway (and which I posted about most recently here):

"Mayor John Street proposed last month that the painting be designated a 'historic object' under the city’s historic preservation ordinance. That designation would put 'The Gross Clinic' under the jurisdiction of the Philadelphia Historical Commission and could prevent its removal from the city. It might also mean that if Philadelphia is unable to raise the money, the sale to the National Gallery and Crystal Bridges could be tied up in court for years. Jefferson University officials ... responded to the mayor’s proposal in a terse statement calling it 'not appropriate' and 'inconsistent with applicable law.' The university asserted that it would mandate an 'artificially low sale price' for the work and 'restrict the university’s control over its own property.'"

NPR's All Things Considered had a piece on the sale today, which made no mention of the historic designation procedures.

The Mysteries of Kingsland

The New York Sun has the latest on William M.V. Kingsland, the "bon vivant boulevardier of the Upper East Side who died last March" intestate and in possession of a bunch of stolen art:

"Since Kingsland's death, the Federal Bureau of Investigation has also been investigating Kingsland. Artwork found stacked in his apartment after his death turned out to be missing or stolen, including a bust of Giacometti and two paintings from Harvard, one by the famous Colonial portraitist John Singleton Copley. ... [Online filings] at the New York County Surrogate's Court listed the value of his estate as $501,000."

Earlier posts on Kingsland (and Melvyn Kohn too) here and here.

Tuesday, December 12, 2006

Hermitage Theft Attempt (UPDATED)

Someone smashed a glass display case and tried to steal an antique silver ladle from the Hermitage Museum late last week. According to a Reuters report: "'He first tried to break the glass with his elbow, and then his knee,' the Hermitage said in a statement. The museum's electronic security systems were triggered and the man was detained by guards and museum staff, the statement said." As the story points out,

"the Hermitage is still reeling from the disappearance of [221] silverware items that emerged in August. The theft of the items is believed to have happened over several years but was only discovered when staff carried out an audit of one of the vast museum's vaults. Larisa Zavadskaya, the curator of the section where the thefts were found, died suddenly at work when the audit began. Zavadskaya's husband has been charged with theft."

UPDATE: Lee Rosenbaum catches the Hermitage director criticizing journalists for their role in the attempted theft ("The more people write about how you can make off with everything in the Hermitage, the more you are going to get unhinged people trying to steal things"). Says Lee:

"This a case of blaming the messenger. Publicizing evident security problems---like the recent Hermitage theft scandal ... is not irresponsibly divulging security secrets; it's exposing glaring lapses, in the hope of spurring needed action to correct them."

Monday, December 11, 2006

Six Degrees of Thomas Eakins

Kevin Bacon has joined The Committee to Keep Eakins' Masterpiece in Philadelphia. According to the Associated Press:

"'This masterpiece and this artist are so intertwined and connected to this city that it should and must remain where it was created,' Bacon, a Philadelphia native, said in a statement released by the group Monday."

Sunday, December 10, 2006

Important Fractional Gift News

There's a long story on the front page of the Arts & Leisure section of today's New York Times on the change in the fractional gift rules. The big scoop comes toward the end:

"[Senate Finance Committee chairman Grassley's] staff says he is now amenable to one technical adjustment in the new rules to address an inequity. While the rules no longer allow deductions to increase as a work gains in value, the Internal Revenue Service requires heirs to pay taxes on the fair market value should any portion of the work remain in a donor’s possession when he dies. ... The Treasury Department ... will be directed to forbid the I.R.S. to collect taxes on any artwork that remains partly in an estate so long as the work is contractually intended for a museum, Mr. Grassley’s aides said."

This refers to what I've been calling the "mismatch problem," and it's huge news. The other changes the article discusses should result in a decrease in fractional gifts, but it was this problem that would have led to their complete disappearance.

The article also sheds some light on another issue about which there has been some confusion. Several weeks ago I cited a Minneapolis Star Tribune story that reported that "museum officials are troubled by the new law's requirement that they take possession each year." I noted at the time that there was no such requirement in the new law, and the Times story confirms that reading:

"The original proposals would have required a museum to take possession of the artwork every year for a period of time corresponding to its stake in it. In a letter to [the Finance Committee], Anita Difanis, director of government affairs at the Association of Art Museum Directors, argued that moving valuable artwork was costly and risky. She argued that many works also require special exhibition space that is too expensive to recreate year after year. Mr. Grassley agreed to a looser standard, saying the work must be handed over permanently within 10 years and the museum be given access at some point in the interim. 'I did hear that there was a complaint about the requirement that the museums take possession every year, but I thought we did what we could to compromise with them,' he said."

For more on the latter issue, see my earlier post here.

"Because personal fidelity is more important than art"

Back in April, I mentioned poetry critic Helen Vendler in connection with the issue of an artist's right to destroy his own work. Vendler had been very critical of the decision to posthumously publish poems by Elizabeth Bishop. There's a profile of Vendler in today's New York Times Book Review, and she's sticking to her guns:

"'If you make people promise to burn your manuscripts' — as Kafka and (by legend) Virgil did — 'they should,' Vendler insisted. 'I think the "Aeneid" should have been burned and Kafka’s works should have been burned, because personal fidelity is more important than art,' she said in her quiet, direct manner. 'If I had asked somebody to promise to destroy something of mine and they didn’t do it I would feel it to be a grave personal betrayal. I wouldn’t care what I had left behind. It could have been the "Mona Lisa.""

Friday, December 08, 2006

More Trouble for Natsoulas Gallery

Back in October I posted about a lawsuit by artist Henry Villierme against the John Natsoulas Gallery in Davis, CA. It seemed that Villierme had consigned some paintings to the gallery that ended up being sold as work by Richard Diebenkorn. Now the daughters of the late David Park are claiming that an unsigned work attributed to their father and sold by the gallery in 1997 is not authentic. (The painting also appeared, as did the disputed Villiermes, in "San Francisco and The Second Wave," published by the Crocker Museum in 2004.) Story in the Sacramento Bee here.

Thursday, December 07, 2006

Title Insurance for Art has a piece, in their new "Collectors Guide," on title insurance for art. At the moment, it's available from two companies:

"Hiscox, a syndicate at Lloyd's of London, has for 20 years sold policies that cover everything from paintings to antiquities and require an annual renewal and premium payment. Hiscox prices on a case-by-case basis, with premiums in the 0.5% to 2.5% range, depending on risk. A $10 million policy on a Monet with a troubled provenance, for example, could cost $250,000 a year.

"In June Aris Title Insurance of New York launched a competing policy. ... Its policies cover only visual art and sculpture--not cultural artifacts or antiquities. But unlike Hiscox's, they charge a one-time-only premium, have no deductible and cover a work for as long as the policyholder (or an heir) owns it. If your ownership is challenged, Aris will either pay whatever it takes to successfully defend you or will refund what you paid for the piece. ... Aris reckons its one-time premium will run 5% or so of the value of the artwork, which may be higher or lower depending on risks associated with its provenance."

I previously posted about Aris, and the issue of adverse selection, here.

Wednesday, December 06, 2006

"Whether art is hanging in a museum or on a beer label, it is protected speech"

So says the Maine Civil Liberties Union attorney who recently filed a First Amendment lawsuit against the state’s Bureau of Liquor Enforcement over its rejection of three beer labels, including one for “Santa’s Butt Winter Porter” that depicts Mr. Clause from behind, drinking a beer, his ample rear end resting on a wooden barrel. has the story, including a picture of the offending label. The New York Times had a brief story over the weekend.

Law professor Heidi Kitrosser uses the case as a jumping off point to consider the appropriate level of protection for commercial speech.

Another Philadelphia Art Controversy

This one involves the public school system. Seems that, over the years, a number of schools had acquired some quite valuable artworks, including an Eakins found in a boiler room. Three years ago the Philadelphia School District gathered up about 1,200 artworks from more than 260 schools. One appraisal put the value of the collection at $30 million. The works have all been in storage since 2003, "but now that the School Reform Commission is struggling to resolve a $73.3 million budget deficit, art experts, along with members of various school communities, are worried that district officials could be tempted to sell the artworks." Full story in the Philadelphia Daily News here. Earlier story, from 2003, in the Washington Post here.

Tuesday, December 05, 2006

Robert Volpe

The New York Times has an obituary this morning of Robert Volpe, who functioned as "the New York City Police Department’s one-man art-theft squad" in the 1970s. "Before Mr. Volpe was unleashed in 1971 as the city’s first and only art detective, art crimes were handled by the burglary division and other units. After his retirement in 1983, regular details took them up again." He was also the father of Justin Volpe, who was convicted in the Abner Louima case.

Monday, December 04, 2006

"In a move which could transform art publishing ..."

... the Victoria and Albert Museum in London will no longer charge reproduction fees for scholarly books and magazines. The new scheme will take effect early next year. The Art Newspaper has the story here. It says "the V&A is believed to be the first museum anywhere in the world which is to offer images free of copyright and administrative charges."

This also provides me with a good opportunity to recommend Susan Bielstein's terrific Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property.

Latest on the Matter Matter

The New York Times had an update over the weekend on the so-called "Matter Pollocks":

"In an article published this week in the prestigious science journal Nature, two physicists contend that a method intended to identify complex geometric patterns in the seemingly chaotic drip paintings of Jackson Pollock is flawed and may be useless in the increasingly convoluted world of authenticating Pollock’s work."

The full story (including a color photo of Matter and three of the works) is here. An earlier post on the "fractal" study the Nature article purports to debunk is here.

Not unrelatedly, Carol Vogel's most recent Inside Art column in the New York Times discussed how technology is playing a larger and larger role in the world of Rembrandt authentications.

The tension between science and connoisseurship when it comes to authenticating art plays a role in Malcolm Gladwell's best-selling Blink, where he discusses the case of a supposedly ancient Greek statue that was offered to the Getty for $10 million in 1983. Relying on months of careful study by a geologist (to determine the age of the piece), the museum concluded that it was authentic and went ahead with the purchase. When art historians looked at it, though, they experienced an immediate, "intuitive revulsion"-- and they turned out to be correct: the piece was eventually proven a fake, and the sale rescinded.

Friday, December 01, 2006

Eakins Ideas

Several commentaries in today's Philadelphia Inquirer. First, lawyer Dan Larkin suggests a compromise:

"Philadelphia supporters should offer to contribute a negotiated portion of the $68 million purchase price for these terms:
"Philadelphia ends legal efforts to prohibit the painting's move, efforts that would absorb large sums, earn the enmity of a major medical school at the heart of our major economic growth engine (health care), delay the 'transformational' benefit promised from the sale's proceeds, and raise awkward questions for museums that acquire works of art that also 'resonate' in their home cultures.
"In return, The Gross Clinic is displayed at the National Gallery and in Arkansas in a setting designed to ensure the painting powerfully proclaims its Philadelphia provenance to millions of national and international viewers annually. Text and photographs would complement the painting's illumination of the city's technical and cultural preeminence. Evidence of the city's leading role in 19th-century medicine would be placed in the context of the continuing preeminence of our medical schools, hospitals, and pharmaceutical and biotech firms.
"The painting returns home as honored guest and centerpiece for festive occasions marking major events central to the city or Eakins."

Art historian Marie Naples Maber says let it go: "I lament that this masterpiece may leave the city where I trained and have enjoyed the arts for more than 30 years. But I also understand that a broader perspective can be revealing. This painting has hung at Thomas Jefferson University since 1878. It was accessible to art-lovers through a telephone call and a reserved visit. If 500 people per year is all the audience such a world-famous work could muster, what meaningful difference does it make to Philadelphians if it's removed?"

And David Traub says the city should build a new "Museum of the Health Sciences" and put the painting there.

Thursday, November 30, 2006

Getting There (UPDATED)

"The campaign to raise $68 million and retain Thomas Eakins' monumental painting The Gross Clinic in Philadelphia has reached about one-third of its goal," reports Stephan Salisbury in today's Philadelphia Inquirer. Carol Vogel puts the figure at $23 million.

Salisbury also reports that Pennsylvania Governor Ed Rendell plans to contact the buyers to discuss a possible extension of the Dec. 26 deadline to match the offer.

UPDATE: At his Illicit Cultural Property Blog, Derek Fincham posts about the city's move to designate the painting as historic:

"This is an interesting turn of events, and is the only example I'm aware of a city preventing the export of a work of art. Many nations attempt to prevent the export of works of art, but I am aware of no individual cities preventing the removal of an important work. The US is among the few nations in the world which has no export restrictions on works, due in part to its status as the largest art importer in the World. It's quite interesting to see an individual city make make similar claims to that of source nations such as Peru, Mexico or Egypt. The potential litigation in this case should be very interesting to watch unfold, if the trustees are unable to reach a satisfactory resolution with the city."

That's quite right, though as I mentioned in an earlier post, this is not the first time Philadelphia has done this. The same process was used to kill the sale of the Maxfield Parrish/Louis Comfort Tiffany mural Dream Garden to Steve Wynn in 1998.

Arrest in Public Art Tragedy

The artist who created the inflatable artwork that killed two women this summer has been arrested on manslaughter charges. The Guardian has the story here. The Independent has more here. Earlier post on the accident here.

Wednesday, November 29, 2006

Gross Clinic Must Stay Put (For Now At Least)

I wondered earlier this week whether the Philadelphia authorities would get a notice letter out to Jefferson University informing them that The Gross Clinic was being considered for designation as a historic object, thereby preventing it from being shipped out of town.

It looks like it had already happened.

Stephan Salisbury reports in the Philadelphia Inquirer today that

"a letter from Jonathan Farnham, the city's acting historic preservation officer, formally notifying Jefferson and the museums of the [commencement of the designation process] was mailed Nov. 20. From that date forward, the letter states, 'you are notified that no one may remove or alter The Gross Clinic, which is the object under consideration, without first seeking a permit from the Department of Licenses and Inspections.'"

A hearing by the Historical Commission's "designation panel" has been scheduled for Dec. 20. That panel will then make a recommendation to the full Commission, which has scheduled a "special session" the next day.

I assume it's a foregone conclusion that the painting will be designated as historic. I'd be curious to know whether the purchase agreement allows the buyers to back out of the deal in these circumstances. Who's going to be the plaintiff in the takings lawsuit against the city?

Tuesday, November 28, 2006

Not the only one

The Tennessean reminds us today that Jefferson University is not the only school facing difficult deaccessioning choices:

"[T]he financially strapped [Fisk University] has found itself in the middle of a controversy raging over its intent to sell two paintings from its Alfred Stieglitz Collection of Modern Art: Marsden Hartley's 'Painting No. 3' and Georgia O'Keeffe's 'Radiator Building — Night, New York.' Awaiting a February court date that will determine whether it has the legal right to sell the paintings, Fisk faces a dilemma. Will it be forced to hold onto these paintings, or will it stand to make millions while letting go of two hugely important masterworks, bequeathed to the school in 1949 by none other than O'Keeffe herself?"

Earlier Fisk posts here, here, and here.

Fake Art Show

The BBC reports:

"Experts from the art world are attending a police exhibition of fake and forged art works as part of moves to fight a crime believed to be becoming increasingly prolific. Amid the sea of historic artefacts, sculptures and magnificent paintings at London's beautiful Victoria and Albert Museum, one small room contains some duds from the art market. Many pieces in the Metropolitan Police's first exhibition of fake art work have fooled art experts and institutions. If genuine, the work in the display would be worth around £10m. Hoping to raise awareness of a crime they say is increasing and becoming more sophisticated, police have invited industry experts to their Investigation of Fakes and Forgeries show."

They may open it up to the public next year. Full story here.

Monday, November 27, 2006

30 Days

Not much news on the proposed Eakins sale since last week. Philadelphia institutions have until Dec. 26 to match the $68 million offer. Philadelphia Inquirer art critic Edward Sozanski had his say in yesterday's paper (the headline: "What Were They Thinking?").

Though I claim no expertise in Pennsylvania law, I did want to offer some preliminary thoughts on the steps taken by the city last week to have the painting designated as a historic object. It's not clear to me whether or not there's still time to block the sale under this process. The basic procedural structure is the following. When the Historical Commission considers designating an object, the Philadelphia Code requires it to give at least thirty days notice to the owner of the property proposed for designation. Then, at a mandated public meeting, "any interested party may present testimony or documentary evidence regarding the proposed designation." If the Commission decides to designate an object, it "shall send written notice of the designation ... to the owners." An owner may not "alter or demolish an historic ... object" "unless a permit is first obtained from the Department of [Licenses and Inspections]."

That much seems clear. What isn't clear is when the restrictions on moving the object kick in. As I read the statute, it's not until after designation -- in which case it would be too late. Unless it went out today, the 30-day notice period alone is enough to take us past the Dec. 26 deadline. On Dec. 27, the university could pack up the work and ship it off to Washington (whether it would have the political will to do so, in the face of such intense opposition, is another matter). [Update: I see now this is probably incorrect. Since the statute defines "demoliton" to include a moving of the work, it could not be shipped out while the designation proceedings are ongoing. See note below.] On the other hand, the Commonwealth Court's Dream Garden decision (discussed further below) suggests that the 30-day notice itself "invokes the Commission's jurisdiction over the properties being considered for designation and states that owners subject to the Commission's jurisdiction may not remove, demolish or alter the property without applying for a permit" (see footnote 3). That's Stephan Salisbury's take in the Inquirer as well: "[The Commission] must provide the owner of the property 30 days' notice before any hearing on the matter takes place. (Once that notice went out, the painting could not be moved while the matter was under consideration.)" (emphasis added). This reading seems to rest on Section 14-2007(7)(l) of the Code -- but that section merely says "The Department shall not issue any permit for the demolition, alteration or construction of any ... object which is being considered by the Commission for designation as historic where the permit application is filed on or after the date that notices of proposed designation have been mailed." But what permit is required to ship this painting to the buyer in the first place? [Update: It's been pointed out to me, correctly I think, that it's Section 14-2007(7)(a) that would require a permit here -- for "demolish[ing]" (i.e., moving) the painting.] If this reading is correct, however, then, at least in theory, the Commission could rush out a notice before the Dec. 26 deadline, putting the sale on hold until the designation process gets sorted out.

Finally, a word about the Dream Garden case. As Stephan Salisbury reported last week, "use of the preservation ordinance to protect artworks is unusual, but there are significant precedents. In the case of Dream Garden, a collaboration of Maxfield Parrish and Louis C. Tiffany whose sale ignited considerable public controversy, the Historical Commission acted after receiving a nomination request from then-Mayor Ed Rendell. Owners of the mural fought the designation, and a three-year legal battle ensued. That fight finally ended, without any court decision, when the Pew Charitable Trusts acquired the mosaic for $3.5 million and gave it over to the care of the Pennsylvania Academy of the Fine Arts." For more background on Dream Garden, see here.

It's true there was no court decision on the merits -- but, as I mentioned above, there was a decision by the Commonwealth Court, on the narrow question whether the Historical Commission's "designation of the Dream Garden as an historic object is a final adjudication and thus appealable under Local Agency Law" (it held that it was). In the course of that narrow decision, the court made it very clear that the designation raised serious "regulatory taking" issues. In discussing the harm to the owner, it said:

"First, the proposed sale of the Dream Garden for nine million dollars collapsed due to the threat of historic designation. Currently, the [owner] is prevented from moving or altering the work of art from its present location forestalling any chance of any future sale. Unlike the designation of a building or a structure, which can be adapted for other uses, the historical designation of Dream Garden precludes any right of private ownership of the work or art. The [owner] has no viable economic use of its property, following designation. .... We conclude that this hardship to the [owner] establishes this challenge ... is ripe for judicial review."

New Massachusetts Consignment Statute

Aaron Silverstein has a nice post up summarizing the re-worked Massachusetts consignment law, which goes into effect in February. The text of the new statute is here.

New York's (quite similar) version is here.

"The Growing Problem of Fakes and Forgeries in American Art"

That's the title of an IFAR-sponsored talk to be given by Ted Stebbins, the Fogg Art Museum's curator of American art, at the Dahesh Museum of Art in New York this Thursday evening. Details here.

Art & Fashion (UPDATED)

Tyler Green doesn't think much of the new Fashion Show at the Museum of Fine Arts in Boston. The New York Times had a more sympathetic account a couple of weeks ago ("for those who are tabulating the cultural value of elevating the fashion industry's most effective marketing tool -- the runway -- into a subject for serious discourse in an institution of fine arts, 'Fashion Show' provides as much unexpected substance as it does eye candy"). But there's been a lot of discussion of fashion among intellectual property scholars lately as well. Eugene Volokh points to a paper by Kal Raustiala and Chris Sprigman entitled The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, which they summarize as follows:

"The Piracy Paradox is about the challenge that the fashion industry presents to the orthodox theories of IP. Advocates for strong IP rights argue that absent such rights copyists will free-ride on the efforts of creators and stifle innovation. Yet fashion presents a significant empirical anomaly: the industry produces a huge variety of creative goods without strong IP protection in one of its biggest markets (the United States), and without apparent utilization of nominally strong IP rights in another large market (the countries of the European Union). Copying and derivative re-working are rampant in both the U.S. and E.U., as the orthodox account would predict. Yet innovation and investment remain vibrant.

"Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected --and economically successful? The fashion industry is a puzzle for orthodox IP theory. Our paper explores this puzzle."

The University of Chicago Law School Faculty Blog recently hosted a group blog session on the paper here. Tyler Cowen discussed this issue here, pointing also to this 1997 law review article and this IP-related fashion blog by Susan Scafidi, author of Who Owns Culture?: Appropriation And Authenticity In American Law.

UPDATE: In this week's New Yorker, Judith Thurman reviews another fashion-related show, this one at the Los Angeles Museum of Contemporary Art: "'Skin + Bones: Parallel Practices in Fashion and Architecture' is the first exhibition of its scale and kind—more than three hundred contemporary works by forty-six mostly avant-garde architects and designers, chosen to represent what Brooke Hodge, MOCA’s curator of architecture and design, calls the 'increasingly fruitful dialogue' between the two disciplines."

CAPC Indecency Charge

From The New York Times this weekend:

"A group of museum directors and curators signed a petition in London [Friday] protesting the indecency charges against Henry-Claude Cousseau, director of the École Nationale Supérieure des Beaux-Arts in Paris. Mr. Cousseau is under investigation for an exhibition, 'Presumed Innocent: Contemporary Art and Childhood,' at the Centre d’Arts Plastiques Contemporain in Bordeaux six years ago, when he was the director there. That show, with works by Mike Kelley, Cindy Sherman, Tony Oursler, Annette Messager, Nan Goldin and others, drew complaints from La Mouette, a child protection group, and Mr. Cousseau, along with two curators, faces charges in connection with exhibiting 'works of a violent pornographic nature, unacceptable for a young public.' If convicted, he could receive a fine and up to three years in prison, according to a statement released on behalf of the signers of the petition, who include Nicholas Serota, director of the Tate Gallery; Alfred Pacquement, director of the Centre Georges Pompidou; Robert Storr, dean of the Yale School of Art; Ralph Rugoff, director of the Hayward Gallery in London; Claire Hsu, executive director of the Asia Art Archive in Hong Kong; and 12 others."

More here from Artforum (second item).

Wednesday, November 22, 2006

"We should be encouraging donations of artwork, not discouraging them" has an excellent piece up about the change in the fractional gift laws -- "Will Democrats Ride To Museums' Rescue?" It's the first news article I can recall seeing that properly conveys the importance of what I've been referring to as the "mismatch" problem:

"An even bigger hit is that the new law locks the artwork's value (for deduction purposes) in at the time of the initial fractional gift. This creates the crazy situation--presumably unintended by Congress--where a collector or his estate could owe gift or estate taxes on a charitable gift. The current market value of the part of the art that hasn't yet been donated is included in the estate. But the estate's charitable deduction for the remainder of the art gift is based on the lower value at the time the fractional gift began. As a result, fractional donations have come to a halt. Even donors who had started giving a work before Aug. 18 [the effective date of the new law] aren't giving additional percentages, for fear that will subject their estates to this extra gotcha tax."

The story notes that a number of museums have written letters to the Senate Finance Committee asking for changes, "[b]ut their best chance for relief is in the next Congress, when New York’s senior senator, Democrat Charles Schumer, should have lots of influence":

"[T]he museums have a friend in Schumer, a Finance Committee member who was just elected the third-ranking member of the Democratic leadership. Last week, Schumer and Sen. Gordon H. Smith, R-Ore., wrote a letter to [outgoing Senate Finance Chairman Charles] Grassley and incoming Senate Finance Committee Chairman Max Baucus, D-Mont., offering to help 'find a middle-ground solution to the fractional gifts issue' in the next Congress."

Back next week. Happy Thanksgiving to all.

Monday, November 20, 2006

"Historic Object"

I don't have time to comment, but did want to call attention to this story in today's Philadelphia Inquirer noting that "Mayor Street has nominated Thomas Eakins' masterpiece, The Gross Clinic, for protection under the city's historic preservation ordinance .... Designation as a 'historic object,' a rarely used category of the preservation code, would prevent the painting from being altered or moved without the express approval of the Philadelphia Historical Commission."

Goya Found (UPDATED)

In New Jersey.

"The artwork appears to be unharmed, said Les Wiser, special agent in charge of the Newark FBI office. The FBI said extensive media coverage of the theft led to tips that enabled the agency to recover the painting. But the agency did not reveal when, where or how the painting was recovered, citing an ongoing investigation."

Story here.

UPDATE: The New York Times has more. Looks like David Nishimura was on the money:

"Contrary to earlier law enforcement theories that the theft was carried out by insiders, they did say it appeared that the thieves probably had no idea what kind of art-historical loot they had stumbled upon when they broke into the truck overnight in a parking lot at a Howard Johnson Inn near Bartonsville, Pa. 'This time of year, close to Christmas, they probably thought they’d found a truck filled with PlayStations and broke in and started looking for the biggest-looking box,' said Steve Siegel, an F.B.I. agent who serves as the spokesman for the bureau’s Newark office. 'Basically, it’s a target-of-opportunity typical New Jersey cargo theft. There are literally predators — for lack of a better word — who when they see a tractor-trailer or a cargo vehicle parked for any length of time start snooping around.'”

IP and the Market for African Art

American U. law professor Christine Farley posts from a conference in Namibia on "IP Used in Support of Culture Based Industries":

"The main question being addressed is whether IP (especially copyright & trademark) can help improve the markets for African art. The problem is that although the US is the major market for African art, US consumers are not willing to pay enough for the art in order to support the communities that create it. Beautiful, hand-crafted pieces made of indigenous materials using ancient techniques are sold at bargain prices that reflect tiny sums paid to the artisans that created them. We buy these pieces at places like World Market because they look nice, but we learn nothing about their origin and significance. If that's all we value why not buy even cheaper versions made in China? These artisans are hopeful that they can stop that type of competition by asserting IP rights in the art."

See also the spirited discussion with UT-Austin law professor Kate Litvak in the comments.

Sunday, November 19, 2006

No Progress

A week after the theft of a Goya painting on its way to the Guggenheim comes a reminder that these kinds of cases are not so easy to crack. The Scranton Times-Tribune reports today:

"A year after the Everhart Museum was broken into — under the cover of night and a huge tent erected for the museum’s annual ball — the FBI and local police are still no closer to solving the theft of two valuable pieces of art than they were after it happened. 'It’s still an open and active investigation,' FBI spokeswoman Jerria Williams said, after conceding that leads in the case have long dried."

Full story here. Earlier posts on this here, here, and here.

Saturday, November 18, 2006

An inside job?

From today's New York Times:

"Federal investigators have concluded that thieves armed with detailed shipping information were behind the removal of a Goya painting from a truck en route to the Solomon R. Guggenheim Museum from Ohio last week, law enforcement officials said Friday. The 1778 painting ... was packed inside several nested crates aboard a locked unmarked truck used by a professional art transporter. The crated painting was removed from an outer shipping container in the truck while it was parked at a Howard Johnson Inn near Bartonsville, Pa. The two drivers checked into the hotel around 11 p.m. on Nov. 7, according to the motel manager .... He said the white midsize truck was left in an unlighted parking lot adjacent to the hotel, out of sight of the hotel’s rooms and the main office. When the drivers returned to the truck at about 6:30 a.m. on Nov. 8, the locks had been broken and the painting, insured for $1 million, was gone, law enforcement officials said."

Full story here. David Nishimura says: "personally, I'm more inclined to believe it a case of sloppiness and stupidity (in abundant supply) taken advantage of by opportunistic predators (also, alas, in abundant supply)."

Eakins News (UPDATED)

Stephan Salisbury reports in the Philadelphia Inquirer today that "a coalition of cultural institutions, foundations, city officials and individuals - led by the Philadelphia Museum of Art and the Pennsylvania Academy of the Fine Arts - has been formed in an effort to keep Thomas Eakins' masterpiece, The Gross Clinic, in the city." For background, see my earlier post here.

Anne d'Harnoncourt, director of the Art Museum, is quoted as saying "I think we're rolling here. There have been some wonderful offers of support, large and small."

Full press release here.

Organizers have also established a fund for donations and a hotline for those seeking information. Donations may be made here or checks payable to the "Fund for Eakins' Masterpiece" may be sent to Fund for Eakins' Masterpiece, c/o the Philadelphia Museum of Art, Box 7646, Philadelphia, Pa. 19101-7646. The hotline number is 215-684-7762.

There will also be a rally tomorrow between 10 am and 11 am in front of Jefferson's Alumni Hall. Philadelphia artblog asks: "Has there ever before been a rally in favor of a work of art?"

UPDATE: Post-rally report (with pictures) here. More here.

Friday, November 17, 2006

Barnes Bill (UPDATED)

I mentioned last month that Pennsylvania Congressman Jim Gerlach, who at the time was in the middle of a close re-election contest, had announced plans to introduce a bill that, if enacted, would keep the Barnes Foundation from moving. Well, he won (by 3,000 votes), and he's kept his promise. Christopher Knight has a brief story in the LA Times today. The Main Line Times has a bit more. Gerlach's press release is here.

UPDATE: The New York Times has a brief piece on this today (last item, scroll down).

Thursday, November 16, 2006

Fractional Gift Letters (UPDATED)

Bloomberg reports that the Whitney and other arts institutions have written letters urging Congress to reconsider the recent changes to the laws governing fractional gifts to museums.

Senator Charles Grassley, who chairs the Senate Finance Committee (until January, when he will be replaced by Democrat Max Baucus of Montana), said in a statement today that he will consider "legitimate technical points raised by the museums. But I'm not interested in unwinding the reasonable, modest reforms on fractional art donations. ... Even with the new reforms, taxpayers will still be able to make fractional art donations and claim a tax break for them. They'll just have to turn over the painting to a museum within a reasonable amount of time.''

My most recent post on the new law is here.

UPDATE: Eric Gibson, editor of the Wall Street Journal's "Leisure & Arts" page, has a piece on the new law today. He also talks about museum deaccessioning, which, he says, "used to be the tool of last resort for acquiring new art" but lately has "become the tool of first resort, with museums strip-mining their collections just to build a war chest." Lee Rosenbaum comments here.

Wednesday, November 15, 2006

On the Radio (UPDATED 2X)

I was on NPR's WHYY in Philadelphia this morning discussing the controversy surrounding Thomas Jefferson University's pending $68 million sale of Eakins's iconic "The Gross Clinic." You can listen to the show here.

As I mentioned on the show, one of the things I find most interesting about the controversy is that, when a similar thing happened last year with the New York Public Library's sale of Durand's "Kindred Spirits," Michael Kimmelman wrote a piece in The New York Times that got a lot of attention, and which included the following discussion of the question "what to do next time":

"[H]ere's a modest proposal. ... [W]henever art is sold by a public institution -- which, receiving tax breaks, can be expected to make some sacrifice toward the public good -- local museums should be given a reasonable period of time to match the sale price. That's it. Just a shot at preserving the public's heritage for the public."

Well, that's exactly what's happened here (local art museums and governmental institutions have 45 days to match the offer), and the university is still coming in for the same kind of criticism.

Here is the latest from the Philadelphia Inquirer (the writer, Stephan Salisbury, was also a guest on the show). Here is the paper's art critic, Edward Sozanki; he says it must be included on "any list of the top 10 American paintings." Here is an excellent piece by Carol Vogel from The New York Times last week, which also contrasts this sale to the way the "Kindred Spirits" sale was handled. The latter story also mentions that in a 2002 review of an Eakins show at the Met, Michael Kimmelman called "Gross Clinic" “hands down, the finest 19th-century American painting.”

UPDATE: One question the host asked that I didn't have a good answer for is "Why is the art market so hot right now?" happens to have an interview up with a real expert in this area -- PaceWildenstein's Arne Glimcher -- which includes that very question:

"[Bloomberg]: What's driving the demand for art?
"Glimcher: The amount of money in the marketplace and the incredible discretionary income. Money has very little meaning to certain people anymore who are making hundreds of millions dollars a year. It doesn't matter if they are paying $80 million for a Pollock. It does not alter their lifestyle at all. It's just, 'I want it and what does it take to get it?'
That's why the auction market is a little bit crazy. We'll have a show of 10 works by an artist, and they'll all sell. And then other people want them, can't get them. One comes up on the open market, and they'll pay twice what they were in the gallery."

UPDATE 2: WHYY has started a blog, called The Sixth Square, devoted exclusively to the pending sale. Lots more at their dedicated Eakins page.

Grosz MoMA Dispute (UPDATED)

Robin Pogrebin has an interesting story in today's New York Times about an ownership dispute between George Grosz's estate and MoMA over two Grosz paintings in the museum's collection. “As these Grosz works would not have been lost if [German Jewish art dealer Alfred] Flechtheim and Grosz had not had to flee Germany in order to save their lives, the George Grosz Estate claims restitution,” the estate's representative wrote in a 2003 letter to the museum. Earlier this year, as negotiations dragged on, the museum asked Nicholas Katzenbach, a former attorney general and undersecretary of state in the Johnson administration, to investigate the claim. He recommended that it be rejected:

"Mr. Katzenbach noted that when Grosz saw [one of the two paintings] at the museum [in the 1950s], he did not ask that it be returned or that he be compensated. Had he done so, the report added, 'not only would the museum have had the opportunity to ascertain the facts when they were still reasonably fresh and knowable, but it would have had the opportunity to resolve the matter then and there at relatively little cost to it.'"

The estate says it will decide by the end of the month whether to file a lawsuit.

You can see the two works here and here.

The story adds: "This is not the first time Grosz works have been the subject of controversy. The Grosz estate filed a lawsuit in 1995 against the Manhattan art dealer Serge Sabarsky, arguing that Mr. Sabarsky had deprived the estate of appropriate compensation for the sale of hundreds of Grosz works he had acquired. The lawsuit was settled last summer." I discussed that earlier lawsuit here.

UPDATE: Derek Fincham weighs in here.

Who the #$&%

The reviews are in for the documentary "Who the #$&% is Jackson Pollock?," mentioned earlier here. Stephen Holden in The New York Times calls it "entertaining." Art critic Daniel Kunitz, writing in The New York Sun, was less amused: "Far from being a documentary, the film is rather an exercise in deception, a vehicle greased by antiintellectualism."

Renoir Verdict

The verdict is in in that Renoir copyright infringement lawsuit I mentioned a few weeks ago. The Arizona Republic has the story here. Damages were awarded against the gallery in the amount of $5,000 for each of the 10 infringed sculptures, for a total of $50,000. Damages against Jean-Emmanuel Renoir (Renoir's great-grandson) were set at $7,500 per infringement, for a total of $75,000. The story adds that "in a related action, the court ordered the [plaintiff] to pay Jean-Emmanuel $120,000 for false advertising of an exhibit that took place in 2005," so it seems the total net to the plaintiff may have been just $5,000. In any event, the defendants seem happy: "'The plaintiff had asked the jury to award them a total of $1.5 million dollars, and the jury just awarded them $50,000. We see that as a victory,' said Phil Flemming, the attorney for [defendant gallery] Rima Fine Art." Expect appeals.

Tuesday, November 14, 2006

Stolen Goya

The New York Sun has a front page story this morning on a Goya painting stolen on its way to the Guggenheim in New York last week:

"The painting, 'Children With a Cart' (1778), disappeared as it was being transported through Scranton, Pa., from the Toledo Museum of Art by a professional art transport company, museum officials said. It was scheduled to hang in the 'Spanish Painting From El Greco to Picasso: Time, Truth, and History' exhibition at the Solomon R. Guggenheim museum starting November 17. The painting was insured for $1 million, and the insurance company has put up a $50,000 reward for information leading to the recovery of the painting. ... A spokeswoman for the [FBI] said the details of how the painting was stolen, and when, wouldn't be released until later this week."

Derek Fincham at the Illicit Cultural Property Blog asks:

"Why was this work stolen? Surely, the market for the work is quite small, as nobody will be able to claim good faith in buying or selling the work. The thieves may be attempting to ransom the work back to the museum. Criminal penalties are far lower for kidnapping a work of art than they would be for, say, kidnapping a person. The other possibility is that a wealthy collector may have requested it stolen for her own private collection."

The New York Times story is here. Here is an image of the painting.

Monday, November 13, 2006

Roll Tide

Adam Liptak had a front page story in yesterday's New York Times about a trademark lawsuit brought by the University of Alabama against artist Daniel Moore, who does paintings of Alabama football scenes which sell for as much as $65,000. The university is seeking to prevent him from, among other things, using its “famous crimson and white color scheme.”

The story does a nice job of laying out the relevant caselaw:

"At one end of the legal spectrum, a federal judge in Louisiana had no difficulty in July in enjoining a company that sold shirts bearing the school colors and initials of four football powerhouses. At the other, the federal appeals court in Cincinnati in 2003 rejected an effort by the golfer Tiger Woods to stop an artist named Rick Rush from using Mr. Woods’s image in a painting commemorating his victory at the 1997 Masters in Augusta, Ga. ... In the middle of the spectrum is a 2001 decision of the California Supreme Court. It expressed great solicitude for the rights of artists under the First Amendment. But it ruled against an artist who had created a simple charcoal drawing of the Three Stooges and sold it on T-shirts."

The Tiger Woods decision is here. The Three Stooges decision is here. You can see examples of Moore's work here and you can listen to him being interviewed about the case on NPR here. Alabama dropped to 6-5 on the season with a 28-14 loss to LSU on Saturday.

Clemson University economics professor Skip Sauer says "attempting to convert this painter's contribution into a revenue stream is a churlish (he can't use 'the famous crimson and white color scheme'???) and short-sighted move by the university's lawyers, regardless of where the case sits on the edge of trademark law."

I make Moore a two-touchdown favorite to win.

Saturday, November 11, 2006


I've been waiting for the opportunity to work Borat into this blog, and here it is:

"Two college students featured in the hit film 'Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan' are not laughing about their screen appearance, in which they make racist and misogynistic comments to Borat, the boorish fictional Kazakh journalist played by Sacha Baron Cohen. A lawsuit filed on their behalf in Los Angeles Superior Court on Thursday states that the young men were plied with liquor by the production crew before their scene and thus 'engaged in behavior that they otherwise would not have engaged in,' The Associated Press reported. The students — who in their suit described Mr. Baron Cohen as 'a prankster' — also say they were told they were participating in a documentary that would be shown only outside the United States. The plaintiffs were not named but were identified in the film as fraternity members at a South Carolina university, and they appeared drunk as they made insulting comments about women and minorities. The suit seeks an injunction to stop the studio from displaying their likenesses, along with unspecified monetary damages."

High five! The complaint is here. Borat's release form is here. Law prof Gordon Smith wondered about exactly this possibility a few days ago: "One obvious problem with the release jumps off the page: One America Productions is fictional! ... The release has a merger clause, but I am wondering about a fraud claim." So did Nate Oman (scroll down to comments): "It seems that there is at least the possibility of fraud, as he obtained their consent by lying to them. ... [T]he set up does strike me as fundamentally deceptive, especially in light of the legal claims that the parties are signing away in the contract, which was presented to them under false pretenses." Another law professor, Miriam Cherry, responding to Oman in comments, doesn't think there's much to the suit: "What's the plaintiff's claim? You taped me saying stupid things and making racist comments? These folks knew they were being filmed, and they signed releases. ... They knew that they were being interviewed and that it would be public (i.e. broadcast)."

Jeremy Telman at the ContractsProf Blog says "[s]ome have suggested that the complaint might be yet another prank by the irrepressible Mr. Cohen. But if that were so, why wasn't the case styled I.P. Freely & I. Tappa Keg v. Borat?" Very nice, Profess Telmer!

Friday, November 10, 2006

Did he or didn't he? (UPDATED)

Last week the New York Times reported that David Geffen had sold a Jackson Pollock painting to David Martinez for a record $140 million. Kate Taylor reports in today's New York Sun that Martinez says it isn't true. Earlier this week, he told Josh Baer, of the Baer Faxt: "I did not buy the Jackson Pollock painting." Now his lawyers (Shearman and Sterling) have issued a statement that "contrary to recent articles in the press identifying him as the buyer of a painting by Jackson Pollock, ... neither Mr. Martinez nor any related party of Mr. Martinez owns the painting or has any right to acquire the painting from David Geffen or any other party who has acquired it or may acquire it in the future."

UPDATE: The Times weighs in (third item) on this this morning and says the episode reinforces "the art world’s reputation for cloak-and-dagger secrecy."

Thursday, November 09, 2006

All The Art News That's Fit to Print

Lots of art law in today's New York Times:
  • Its story on the Picasso withdrawn from last night's auction at Christie's.
  • Carol Vogel's report on that auction (the biggest in history, totaling $491 million). In addition to what she calls "the stars of the evening" -- the four Klimts which were recently returned after arbitration to the Bloch-Bauer heirs (along with the Portrait of Adele that sold for $135 million earlier this year to the Neue Galerie) -- the sale also included Ernst Ludwig Kirchner’s “Street Scene, Berlin,” which "found its way to Christie’s only three months after the German government returned it to the heirs of Alfred and Thekla Hess, Jewish collectors in Erfurt, Germany" and which sold for $38 million, also to the Neue Galerie.
  • The latest on the underpayment of capital gains taxes on the Childe Hassam painting that was at the center of the recently settled Brooke Astor guardianship case.
  • A story on retired truck driver Teri Horton, the subject of the upcoming documentary "Who the #$&% Is Jackson Pollock?," mentioned earlier here. There's a good image of the painting she bought for $5 in a thrift shop in the early 1990s with the Times story.
  • The latest on Italy and the Getty.
  • A report on "an on-and-off restitution battle lasting six decades" which ended with Austria agreeing yesterday to return Munch's “Summer Night on the Beach” to Marina Mahler, the granddaughter of the composer Gustav Mahler and his wife, who originally owned it.

Wednesday, November 08, 2006

Christie's Picasso Sale Can (But Won't) Proceed (UPDATED 2X)

The New York Times this morning reports that Southern District Judge Jed Rakoff refused yesterday to block Christie’s from auctioning a Picasso painting that a German banker’s heir says was sold under duress in Nazi Germany. The suit was dismissed on jurisdictional grounds, with the judge saying that the plaintiff could re-file the case in State Court, which his lawyer said he plans to do today. Christie's says the sale will go forward anyway. [N.B.: The picture has been withdrawn from sale. See second update below.]

The Times story includes a great quote from Judge Rakoff:

"I know that no one in the art world is just interested in money or in buying and selling paintings for profit. They’re guided by their belief in truth and beauty. But nevertheless, one might suspect that this is just a fight about money."

Christie’s has given a pre-sale estimate of $40 million to $60 million to the painting, variously called “The Absinthe Drinker” or “Portrait of Angel Fernández de Soto,” which can be seen here. Daniel Freedman at his New York Sun blog asks, "Will the painting be sold for less than its estimated value? Anyone who buys it must calculate the possibility of having a judge rule that it must be returned." Or at least must factor in the legal costs of defending against the claim.

The New York Law Journal [$] has more.

UPDATE: The Art Newspaper is reporting that Christie's "look[s] set to withdraw the painting from auction."

UPDATE 2X: The painting has been withdrawn from the sale:

"'Despite the favorable ruling of the federal court dismissing their claims there, we have been informed by the litigant's attorneys that they intend to file another suit in state court,' said the statement [by Marc Porter of Christie's]. 'A cloud of doubt has been recklessly placed on the `Portrait de Angel de Soto' by the litigant and his attorneys on the very eve of this long-scheduled and highly publicized sale,' said the statement by [Porter]. He said Christie's reserved the right to seek damages for the harm 'caused this picture, the charity that rightfully owns it and Christie's.'"

Lee Rosenbaum says it's "the prudent, if painful, thing." She also reports that the plaintiff "had sought to reach a monetary settlement of the case with [the seller]," but the seller's lawyer says his client "flatly refused" to enter into such discussions.

Derek Fincham of the Illicit Cultural Property Blog doesn't think much of the underlying claim:

"The claims seem tenuous to me at first blush. The plaintiff, Mr. Schoeps, is the heir of Paul von Mendelssohn-Barthold, a wealthy Berlin banker and art collector. He was forced to sell all his paintings as a result of Nazi persecution. The Nazi's didn't actually take the painting, but they seized his assets so that he had no choice but to sell the work. ... I'll try to get my hands on the dismissal and look at the substance of the claims. To me, though, it seems like the claimant will have a very difficult time winning the case."

Certainly, the plaintiff's 70-year delay in pressing his claim is going to be difficult to overcome.

Tuesday, November 07, 2006

More on the Koons Victory

Law professor Christine Farley has a take similar to mine on Jeff Koons's recent win in the Second Circuit: "As I read the opinion," she says, "I kept wondering why earlier Koons courts could not have taken the same approach."

What was different this time? According to Farley:

"1) Here the plaintiff's photograph is an advertisement. While this should make no difference and while other successful plaintiffs have certainly made commercial use of their copyrighted works, I suggest this difference matters to the court. ... 2) The court 'gets' Koons' work. In the 1st Koons case, Judge Haight's lack of esteem for the artist pervades the opinion. (For instance, he remarks how Koons' 1st career was as a commodities trader & how he hires other artists to make his work.) ... Here, the 2d Circuit paints a different portrait of the artist and weaves his testimony into a coherent story of how fair use law enables just this kind of creativity by granting to artists access to 'raw materials' such as Blanch's photography."

The second point is an excellent one, but I think she may be mistaken about the first. The Second Circuit's opinion says the photograph was published by Allure magazine "as part of a six-page feature on metallic cosmetics entitled 'Gilt Trip'" (my emphasis). Koons did testify that certain features of the photograph "represented for me a particular type of woman frequently presented in advertising," but, unless I'm mistaken, this photo itself was not strictly speaking an advertisement.

Monday, November 06, 2006


An interesting copyright dispute going on in Hawaii. Artist Kim Taylor Reece has sued a local gallery (but apparently not the artist who created the work at issue) over a stained-glass artwork that he claims infringes one of his photographs. You can see both the glass piece and the photograph at this link to a Honolulu Star Bulletin story on the dispute.

Just from looking at the pictures, it does appear that the main similarity between the two works is the model's pose, but, as a member of a Hawaiian cultural group that is supporting the glass artist correctly says, "these are movements that we've done for 2,000 years that have been passed down from generation to generation. He cannot own this position. What he owns is his photograph of that particular model."

The photographer counters that "I'm not saying I own the pose. What I'm saying is that she copied my image" -- and argues that

"both dancers have their left arms in the same position, with the left hand on the same place of the face. Both have their right arms pointing up and with kupee (bracelets) of identical thickness, position and makeup on both. Both images are shown at the same angle, with the viewer looking up, with the dancers in the same posture. In both, the dancer's legs are together. The windblown hair on the dancers is very similar."

The natural question is how much of that flows from the pose, which both sides agree cannot be protected. Wouldn't the fact that "both have their right arms pointing up" be a function of the pose? Similarly the fact that "the dancer's legs are together"? My guess (again, based on this one newspaper article) is that, once you strip away all the features that are really part of the pose (and perhaps some other elements -- like the "kupees" -- that one would expect to see on a typical dancer striking that pose), there isn't much left in this case.