Monday, July 31, 2006

Appraisal Suit

Bloomberg News reports that Guy Wildenstein and his family's art dealership have been sued in New York State Court for appraising a Gauguin painting without disclosing their ownership interest in it. The complaint alleges that Wildenstein said the painting was worth $15-17 million, in reliance upon which the plaintiff purchased it for $11.3 million in Aug. 2000. When they put it up for sale at Christie's that November, it failed to sell (the high bid was $9 million, presumably below the reserve price). The plaintiff wants the sale rescinded and the purchase price refunded. An artnet story from Nov. 2000 indicates that Christie's estimated the piece at $12-16 million (not too far off from the Wildenstein estimate).

"It's not unusual for a public arts program to attract some controversy"

The New York Times had a report this weekend on a public artwork recently installed in Loveland, Colorado. (Earlier, local coverage here and here.) The artist, Kirsten Kokkin, says her sculpture, titled “Triangle” and depicting three nude figures -- a man and woman holding up a second woman -- is meant to symbolize unity and how we stay together to survive society.” You can see the piece here.

Thursday, July 27, 2006

The Benefits of Benefits

In this interesting post about donating to art-related benefits, Edward Winkleman asks about the status of the Senate bill that would have allowed artists to deduct the full fair market value of works they create and then donate to charity. Unfortunately that provision was not included in the final bill signed by the President on May 17. So artists remain able to deduct only the cost of materials.

Idea Theft

The New York Times has a story today about a supposed increase in "idea theft" cases in the wake of the 2004 Ninth Circuit decision in Grosso v. Miramax, which held the Copyright Act did not preempt claims of an implied contract to purchase an idea. I've never understood why anyone thought Grosso was such a big deal. It was always the case that contract claims were not preempted by the Copyright Act; the trouble was (and remains) proving you had a contract (express or implied), and Grosso is no help on that score (in fact, Grosso's case was itself dismissed on just that ground earlier this month, which the Times story mentions in passing but for some reason finds "odd").

It was also never clear to me why Grosso was supposed to be a big victory for writers. As law prof Mike Madison said at the time:

"More practically speaking, it’s hard for me to see how this is a win for screenwriters. Any competent production company stopped opening unsolicited packages a long, long time ago out of fear of this kind of suit. Now executives will run, not walk, from anyone who even looks like a writer. Exactly how does this make writers better off?"

Wednesday, July 26, 2006

"Art, adultery, divorce, lawyers and pots of money"

So begins Stephen Holden's (negative) review in the New York Times today of a new documentary about the estate of photographer O. Winston Link, who died in 2001. Link's (much younger) wife was convicted of stealing 1,400 photographs and other assets valued at more than $1 million and served a five-year sentence. She maintains the photographs don’t exist, but she was sent back to prison after she was caught trying to sell 31 of the missing prints on eBay in 2003. "The scandal, of course, only increased the value of Link’s work," notes Holden, who concludes: "A sad commentary on the inflated art market and its vulture mentality camouflaged by highbrow trappings, the movie comes across as an example of the very exploitation it observes with a raised eyebrow."

Link is best-known for his black-and-white photographs of the waning days of the steam locomotive. Here is a link to the O. Winston Link Museum in Roanoke. Here is a link to some other reviews of the film at metacritic.

Tuesday, July 25, 2006

The Deaccession Discussion

Lee Rosenbaum (who has new digs) and Tyler Green gang up on Met curator Gary Tinterow for what they regard as a too casual attitude towards museum deaccessioning. A while back economist Tyler Cowen asked why deaccessioning draws such intense criticism, and suggested a "a very crude theory, too crude to possibly be true":

"Stop thinking of visitors as the museum's customers. Instead the customers are the donors. Donating a picture is like spending money. The donor gives a Picasso to MOMA, in return purchasing the feeling of 'having given a Picasso to MOMA.' This yields tax, networking, and other privileges in this life, as well as a long-term legacy. Museums, in turn, take some care to attract viewers, so that their real customers -- the donors -- have greater feelings of satisfaction about the whole enterprise. In this 'model,' selling off artworks makes customers (donors) nervous. 'How do I know they won't sell off my [sic] Picasso once I've died?' ... So museums sit on their huge and growing stashes of art. In this manner they signal their trustworthiness to future donors. ...The museum community, of course, does not like to admit that its donors are the primary customers (how would viewers and government funders feel?), so it must present other reasons why deaccessioning is bad."

My friend Adrian Ellis of AEA Consulting has made the following interesting argument against the absolutists:

"One approach that respects the intentions underpinning the current position on de-accessioning whilst allowing for a more balanced allocation of resources might be for the museum community to see itself more as just that – a community – and allow for a more comfortable distribution of resources between cash poor asset rich institutions and asset poor cash rich ones, allowing them to trade to mutual advantage .... Sales could be restricted to museums that conform to appropriate standards of conservation and scholarly or public access and any sale could be caveated to prevent on-sale to third parties that did not meet similar conditions."

Certainly in the case of what David Nishimura has called "survival deaccessioning" -- as, perhaps, in the Fisk University case I recently discussed (put aside for the moment the more difficult questions of donor intent that case raises) -- it's difficult to argue against a sale, particularly if, following Ellis's suggestion, it's restricted to another qualifying museum.

Monday, July 24, 2006

Martha Graham II?

The New York Times has a story this morning about a dispute within the famed Pilobolus dance company, including over ownership of some of the choreography, which is reminiscent of the Martha Graham case, in which Graham's heir, Ron Protas, battled her company (largely unsuccessfully) for years over the rights to her dances. The Second Circuit issued the most recent (and in all likelihood final) decision in the Graham dispute just a couple of weeks ago.

Public Art Tragedy

The Guardian has the story of a horrible accident involving a public artwork in northern England on Sunday. Two people died and 13 were injured. BBC News has more on the artist, Maurice Agis, and his inflatable "Dreamscape" sculpture.

No Contract, No Luck (UPDATED)

The New York Law Journal reports ($) on a Manhattan Supreme Court decision that, in the absence of a contract to the contrary, photographer Elizabeth Heyert does not have to pay the owner of a Harlem funeral home in connection with a series of photographs she took of elaborately dressed corpses at the home. A lawyer for the funeral home owner had written to Heyert in 2004 "demanding that if she were going to exploit the photographs for commercial gain, she should enter into a fair and equitable agreement with [the funeral home owner] and the families [of the photograph subjects]." But no such contract was ever signed, so the decision seems clearly correct as a matter of straightforward contract law ("In the absence of a contract between the parties containing specific terms of payment or entitlement, this Court will not create the contract the parties might have made. . . . Absent some agreement, a photographer owns all rights to her own photographs").

The decision also points out that the families of the deceased "all signed releases" which "by their terms, gave Heyert the right to copyright, use, reuse and publish the photographs 'for any purpose whatsoever," which the Court appeared to consider independent grounds for dismissing the claims by the families (as distinct from the owner of the funeral home). The news article quotes the lawyer for the funeral home as saying three of the families had not signed releases and he's "been contacted by those families, so the matter is not over." I'm not sure the releases really make a difference. As we saw most recently in a case involving Philip Lorca diCorcia (discussed here), in general a fine art photographer like Heyert doesn't need permission from the subjects of her photographs -- even when they are alive. The case is even stronger when the subjects are dead: the New York privacy statute applies only to "any living person." (None of which is to say releases aren't still a good idea, just to be on the safe side.)

You can see images from the series, called The Travelers, here. Grace Glueck's New York Times review from last year is here. A book is available here.

UPDATE: The New York Daily News has a short piece on the dispute here.

Thursday, July 20, 2006

The Scam Doctor

The Maine Antique Digest has a (very) lengthy piece on Vilas Vishwan Likhite, the 67-year-old former Harvard Medical School professor who was recently convicted and sentenced to a year in jail for attempting to sell fake Cassatt drawings. Towards the end, the article raises the interesting question of what should happen to all the other (presumably) fake art in his possession, correctly noting that, in general, "no court, after an art fraud trial, decrees that fake art must be destroyed or even labeled as bogus. A con artist is free to try it on new people." But it sounds like the prosecutor here may try to take a more aggressive tack with at least some of the works: "prosecutor Catherine Chon said, 'You can't seize property from a defendant because you feel he's going to commit crimes with it. But I think this is a little different, in that we know what his intent was, at least in terms of the artworks that he brought to the hotel.' We asked if Likhite's attempts to sell the art essentially converted it into contraband, which, like illegal drugs, can be confiscated and destroyed. 'Basically,' she said."

Twitchell Proceedings Underway (UPDATED)

As a first step towards a lawsuit, artist Kent Twitchell filed a claim today against the U.S. Department of Labor in connection with his painted over "Ed Ruscha" mural in downtown Los Angeles (see earlier posts here, here, and here). According to the Los Angeles Times, he's seeking damages of $5.5 million. The Times also reports that in the past few days two other Los Angeles murals were partly painted over, "an apparent error by a Caltrans work crew cleaning up graffiti." A Caltrans spokeswoman says the paint will be removed next week and that, because they were covered by a protective coating, "the removal process will not affect the artwork."

UPDATE: This week's LA Downtown News has more here and here.

Is art a good investment (redux)?

In a post last month, I noted that journalist Daniel Gross argued yes, but economist Tyler Cowen doubted it. A new Merrill Lynch study supports Cowen's view: it concludes that art is one of the worst ways to invest one's money. has the story here.

Paperclips and Income Taxes

Last month I posted about a New York Times story of a guy looking to trade a Maurice Sendak watercolor for an apartment in Manhattan, and I noted that he (and the author of the Times's story) seemed to be overlooking the income taxes he would have to pay on the trade. I had the same thought when reading about Kyle MacDonald, the young blogger who has traded his way up from "one red paperclip" to a house (with intermediate trades along the way for, among other things, a pen, a ceramic knob, a camping stove, a generator, a beer keg, a Budweiser sign, a snowmobile, an afternoon with Alice Cooper, and a role in Corbin Bernsen's new movie). The Tax Law Prof agrees there's a potential tax problem (or would be, if MacDonald were American): "If MacDonald were subject to U.S. tax (he is a Canadian), wouldn't each exchange generate short-term capital gain, since the swaps do not appear to qualify for § 1031 like-kind exchange treatment? Wouldn't this be simple barter income? Would MacDonald be subject to the barter exchange reporting rules?" Here is a story at MacDonald's blog is here.

"Berry-Hill bankruptcy drags in other dealers"

Martha Lufkin has this update today in The Art Newspaper on the Berry-Hill Galleries bankruptcy proceeding. "Dealers whose pictures were consigned to and sold by Berry-Hill Galleries before it filed for bankruptcy risk losing the proceeds from their sale, unless Berry-Hill can raise enough money to make a first payment to its secured creditor by August 2. "

Wednesday, July 19, 2006

Degas Con

The New York Times reports today on a "talented con artist" who swindled a retired businessman out of a Degas bronze, reportedly worth $600,000. The swindler, Tom Doyle, has been indicted in Manhattan on charges of grand larceny. The article refers near the end to a civil suit the victim has brought against three Manhattan galleries (through which I assume the sculpture passed) demanding the return of the piece or repayment of its value. But unless there is more to the story than so far appears, that sounds like a longshot to me. It's true that, as the old saying goes, "you can't get good title from a thief"; but this sounds more like a case of so-called "voidable" title, which arises when the original transferor voluntarily relinquishes possession of the goods and intends to pass title. In those circumstances the transferee (even if a con artist) does have the power to transfer good title to a good-faith purchaser. The Times reports that in this case the victim "entrusted" the sculpture to Mr. Doyle, who "said he would buy the sculpture" and even wired a $100,000 down payment to the victim’s lawyer, all of which does sound again like voluntary relinquishment and intent to pass title.

As an amusing art law side note, as part of his con Doyle "carried a business card that identified him ... as a member of the Duveen family, a descendant of Joseph Duveen, later Lord Duveen of Millbank," who "dominated the world art market during the 1920’s and 30’s." I recently mentioned Lord Duveen in discussing the famous "unsolicited public comment" case, Hahn v. Duveen. He also makes an appearance in the Peter Schjeldahl piece I mentioned earlier today; he notes that Duveen, "the Machiavelli of dealers, ... in order to boost his trade in Old Masters, was said to have bullied a seller into accepting more payment from him than had been asked."

Tate Report (UPDATED)

The U.K. Charity Commission has ruled that the Tate broke the law by buying art produced by serving artist-trustees, including a £600,000 work by Chris Ofili. According to a report in the Guardian today, "by law, trustees cannot receive monetary benefit from their charity without express permission, usually from the commission. The Tate failed to seek permission, not only in the case of the Ofili work, ... but in 17 previous purchases of work by artist-trustees going back 50 years."

UPDATE: Alan Riding has more on this story in today's New York Times.

"Is she worth the money?"

As I mentioned in a post last week, Michael Kimmelman of the Times clearly thinks so, saying the $135 million Ronald Lauder recently paid for Klimt's 1907 portrait of Adele Bloch-Bauer "may even come to look like a bargain." In this week's New Yorker, Peter Schjeldahl considers the same question. His answer:

"Not yet. Paintings this special may not come along for sale often, and the hundred and four million dollars spent for a so-so Picasso, 'Boy with a Pipe,' two years ago indicated that irrational exuberance could be the booming art market’s new motto. But Lauder’s outlay predicts a level of cost that must either soon become common or be relegated in history as a bid too far. And the identity of the artist gives pause. The price paid is four and a half times the previous high (already a stunner, in 2003) for a Klimt; until a few years ago, the artist ranked as a second-tier modern master both at auction and in the estimation of most art critics and historians. . . . Klimt and his world remain marginal to the battered but still persuasive avant-gardist chronicle of Western modern art: roughly, Paris to New York, and Cubism to abstractionism, with special status for futurism, Dada, Russian Suprematism and Constructivism, Dutch de Stijl, and Surrealism. The purchase of 'Adele' tests the possibility—ever less to be sneezed at, these days—of rewriting art history with a checkbook."

Monday, July 17, 2006

The Fisk University O'Keeffes

The Tennessean had a weekend story on Fisk University's plan to sell an iconic Georgia O'Keeffe painting in order to raise money for its sinking endowment. The O'Keeffe Foundation is challenging the sale, saying it was a condition of the gift of the so-called "Stieglitz Collection" that the collection not be broken up. The issue is still before the Davidson County Chancery Court. You can listen to an NPR story on the matter from last December here. Tyler Green, a "a near-absolutist on the evils of deaccessioning at art museums," wrestles with this particular case here. An image of the painting can be seen here. My previous post on the Barnes Foundation's move to Philadelphia, which raised conceptually similar issues of when a donor's intent may be overridden, is here.

Gerald Peters Tax Suit Dismissed (UPDATE)

When I first posted about art dealer Gerald Peters's lawsuit against the IRS -- over tax deductions he took for works that turned out to be fakes -- I said my first reaction was "why hasn't the case been dismissed?" Well, now it has -- although the Associated Press story reporting the dismissal seems to suggest that it might have been pursuant to a settlement by the parties: "U.S. District Judge James Parker dismissed the case this week. No details of a settlement or other agreement were made public. In court filings over the past year, both parties indicated they had hoped to settle." I haven't been able to track down the decision, but will post an update if and when I do.

UPDATE: I still can't find a linkable copy of the decision, but it's a one paragrapher confirming that it was on a stipulation by the parties rather than on the merits.

Title Insurance for Art

The Los Angeles Times reports on the introduction, by New York-based ARIS Title Insurance Corp., of title protection insurance for works of art, similar to real estate title insurance. The premium on a million dollar painting with undocumented Nazi-era provenance would be about 5%, or $50,000; a piece with a more secure title might be cheaper. So far they haven't sold a single policy, though one application, from a private collector, is under review.

In their "The Economics of Legal Disputes Over the Ownership of Works of Art and Other Collectibles," Richard Posner and William Landes noted the "the absence of title insurance for works of art to emerge" and said it may be due to "adverse selection and to the difficulty of calculating the risk of defective title to art with actuarial precision":

"The first point is especially important. Insurance companies normally insure against the risk of something happening in the future rather than against the consequences of something that has already happened. The insured is more likely to know the past than the future and so more likely, in the case of insurance against the consequences of something that has already happened (such as a thief in the chain of title), to be exploiting information known to him but not to the insurer. Title insurance in real estate is only an apparent exception, since all the title insurer insures against is the risk of its having failed to conduct a thorough search of the public registry of real estate titles."

Copyright Misuse

Those interested in the pending lawsuit against the James Joyce estate might want to take a look at this article by Brett Frischmann and Daniel Moylan entitled "The Evolving Doctrine of Copyright Misuse." It will appear as a chapter in the forthcoming INTELLECTUAL PROPERTY AND INFORMATION WEALTH (Peter Yu ed., Praeger 2007).

More on Chihuly

The Atlanta Journal-Constitution had this article over the weekend on the Dale Chihuly lawsuit mentioned here on several occasions. It correctly sums up the "philosophical and now legal issue [as], where does one draw the line between an object done 'in the manner of' and a knock-off?" It also quotes one of the defendant's lawyers as saying (1) "you can't claim a style" (not entirely true; see here) and (2) "the [object in question] has to be virtually identical before there's any infringement" (but that doesn't seem right either; in general the test for infringement is "substantial similarity").

Meanwhile, Bill Patry went to check things out for himself, at the Bronx Botanical Gardens. His verdicts: (1) "The show was fantastic"; and (2) "On the copyright side of things, I saw works that were complex and creative as well as works that were not much different than you would see at Home Depot. But even for the highly creative works, the scope of protection would seem narrow, limited to that particular expression, and certainly not extending to style or technique" (emphasis added).

Saturday, July 15, 2006

Twitchell Mural Update

Everyone's still trying to figure out what led to the painting over of Kent Twitchell's Ed Ruscha mural in LA. A local councilwoman has asked the departments of Building and Safety and Cultural Affairs to deliver a report. The Los Angeles Downtown News reports that Twitchell's lawyers are still "preparing to file suit."

Friday, July 14, 2006

More on eBay and "Fake"

Regina Hackett had a story in yesterday's Seattle Post-Intelligencer about the famous eBay art fraud scam from a couple years back, which I wrote about here and which is the subject of a recent book by one of the scammers entitled "Fake: Forgery, Lies, & eBay (How One Man's Con Game Created an International Scandal & Triggered a Nationwide FBI Manhunt)." The book's author claims "online art fraud is worse than ever, caused by the delusion of buyers." eBay counters that it's much better at detecting fraud now, partly because it employs "thousands of people who check bidding patterns for irregularities." They also say their "best resource to uncover fraud ... is the customers themselves": "People form communities and are fast to detect problems." But presumably that was the case five years ago too, and it didn't stop the fraud then.

Thursday, July 13, 2006

Clean Flicks and Creative Control

University of Chicago law professor Randy Picker persuasively argues that -- put aside the usual confusions about fair use and derivative works (which Bill Patry nicely captures here) -- what the Clean Flicks decision was really about is creative control. As he notes, the opinion "comes down strongly in favor of copyright creator control":

"[Clean Flicks's] argument has superficial appeal but it ignores the intrinsic value of the right to control the content of the copyrighted work which is the essence of the law of copyright. Whether these films should be edited in a manner that would make them acceptable to more of the public playing them on DVD in a home environment is more than a matter of marketing; it is a question of what audience the copyright owner wants to reach" (emphasis supplied).

Meanwhile, count Edward Lee as among those who are not impressed with the opinion's derivative works discussion:

"The Court's analysis seems just wrong to me. CleanFlicks made an edited copy of the movie and distributed it to the public. This kind of splicing of copyrighted works is reminiscent of the abridgment of books charged as piracy in early 18th century England by the likes of Daniel Dafoe. Today, the copyright holder certainly holds the right to make derivative works, including abridgments. 17 U.S.C. 101 (definition of 'derivative work' includes 'abridgment'). Just think of the famous Monty Python case, in which ABC edited scenes from Monty Python without authorization."

Wednesday, July 12, 2006

Come See the Klimt (UPDATED)

Want to see what a $135 million painting looks like? The Klimt that Ronald Lauder recently bought for the Neue Galerie goes on view tomorrow. Bloomberg news is predicting a "mob scene."

UPDATE: Michael Kimmelman says the work is "beautiful, a gift to the city." And, even though it cost "the equivalent of the combined gross domestic products of Kiribati and São Tomé and Principe," "$135 million may even come to look like a bargain." The Times also has a nice slide show of the exhibition at the same link (left column).

Monday, July 10, 2006

Clean Flicks Decision (UPDATED)

A District Court in Colorado has ruled against "Clean Flicks" and related services which take Hollywood movies, edit out the "sex, nudity, profanity and gory violence," and then sell the cleaned up versions. The court held, on summary judgment, that this is not a fair use. And, because copies of the altered film are sold, the "first sale doctrine" (which says that once you buy a copy of a work, you can do pretty much as you'd like with it) also did not apply. You can access the decision here.

But what if copies weren't made? What if there were a way to "redact" or "bleep" out the objectionable content on the very DVD you (lawfully) purchased, and you then sold that redacted version? Tim Lee suggests that would be fine: "No one would claim copyright infringement if I went into business buying books, blacking out naughty words, and reselling the edited books. [If] Clean Flicks has already paid Hollywood full price for each copy of the movies it re-sells—what business is it of Hollywood’s if they alter the copy before selling it?" One objection to this view might be that the edited book or film is an unauthorized "derivative work." The Clean Flicks court rejected that claim, holding simply that "because the infringing copies of these movies are not used in a transformative manner, they are not derivative works and [therefore] do not violate sec. 106(2)." I'm not convinced that it's so clear a G-rated version of an R-rated movie is not a derivative work, no matter how it's created; at the very least it's a closer call than this decision lets on.

UPDATE: Ed Felten has more thoughts here. He too finds the Court's derivative work reasoning "odd."

Shloss v. Joyce Up North

The Globe and Mail has a look from a Canadian perspective at the recently filed lawsuit against the James Joyce estate, earlier posts on which can be found here, here, and here.

But what charges will Zidane face?

An art law angle at the World Cup:

"Two Austrian performance artists have been arrested for placing concrete-filled footballs in parts of Berlin during the World Cup with signs inviting people to kick them. Two unwitting passers-by sustained foot injuries as a result of the stunt . . . . Police said they had arrested two men, aged 26 and 29, who had set up a workshop in western Berlin where they made the real-looking footballs and signs reading 'Can u kick it?' The men are part of an Austrian art group called 'Mediengruppe LM/N' which devised the project 'Concrete Soccer' . . . ."

They now face charges of "causing bodily harm, dangerous interference with traffic and causing injury through recklessness." Story here from Spiegel Online.

Sunday, July 09, 2006

"Mural Rights" Suit Near

According to the Los Angeles Downtown News, artist Kent Twitchell is planning to file a lawsuit "this week" over the destruction of his Ed Ruscha mural last month. Seems it hasn't been easy to figure out who to sue. Apparently the YWCA of Greater Los Angeles operates a Job Corps program inside the building on which the mural was displayed, but Twitchell's lawyers say they are "still getting stiff-armed by the Department of Labor on who actually owns the building." Earlier posts on this matter here and here.

Friday, July 07, 2006

Did the Met spend $50 million on a fake? (UPDATED)

Columbia University art history professor James Beck says they did. Beck says the painting, "hailed as a 14th-century masterpiece when it was bought last year," is a "19th-century fake." The full story is here. (Here is the image, and a page from the Met's website about it.) My guess is that, as a practical matter, it's extremely unlikely that the Met would bring a lawsuit, but, at least in theory, Professor Beck is treading in dangerous water. The most famous "unsolicited public comment" case is Hahn v. Duveen from 1929, in which Duveen looked at a photograph of a supposed Leonardo da Vinci painting owned by Hahn and told a newspaper reporter that it was a mere copy. Hahn sued, claiming that the painting was in fact authentic and that, as a result of Duveen's comment, she could no longer sell the work for its actual value. The case settled with Duveen paying $60,000 ($650,000 in today's dollars!). Jackson Pollock scholar E.V. Thaw wrote in The New Republic last year that the case "poisoned the air for the freedom of experts to give opinions on works of art without fear of legal liability. It has not been invoked often, but I have myself been twice its victim for refusing to include a false painting in a catalogue raisonné that I was co-editing."

UPDATE: Robin Pogebrin had more on this in Saturday's New York Times.

Thursday, July 06, 2006

A Botero "Sign"

A gallery owner in Fernandina Beach, Florida has prevailed in a (ridiculous) dispute with the city over his display of a Botero print. Prompted by the complaint of a passerby who "went to the city and asked what rules were in place regarding public displays of nudity," the city ordered the gallery to take the print down, saying it violated a sign ordinance because the store already had one sign in place. The gallery owner refused and instead filed a lawsuit. The city quickly capitulated, allowing the picture to remain on display and also agreeing to pay the gallery's legal fees. The story is here. The print in question can be seen (and ordered, "hand framed with an elegant Sovia Flat Matte Black Wood molding" and with a 30 day money back guarantee, for 62 dollars and 99 cents) here.

Wednesday, July 05, 2006

Pledge Battle

The Ocala Star-Banner reports on a lawsuit over an unpaid pledge to the Appleton Museum of Art in Florida. The case, seeking to enforce a $1 million pledge against the estate of Edith-Marie Appleton, one of the founders of the museum, goes to trial in Illinois state court this week. Suits to enforce gifts are relatively rare -- museums often worry about frightening away other potential donors, ruining their relationships with family members and friends of the defendant, and the publicity that such a suit inevitably attracts. There are also legal hurdles to enforcement, chief among them the issue of "consideration" for the promise. The statute of frauds can also come into play (it's unclear from the story whether the Appleton pledge was in writing or not). Still, there have been a handful of cases seeking enforcement, with mostly successful results. Generally, if the museum can show that it relied on the promise -- for example by beginning construction, or borrowing additional moneys on the expectation of the gift -- the courts will find consideration and, therefore, a binding contract. I assume that will be the argument here; the article refers to an earlier federal lawsuit (since withdrawn) in which the university alleged that it "took on heavy financial liabilities in the museum based on the premise it would receive the full amount of the alleged pledge and lost state-matched funding in the process."