Thursday, August 31, 2006

Stolen Munchs Found

The Munch paintings that were stolen from an Oslo museum two summers ago have been recovered, apparently in pretty good shape. Three men were convicted in May for their roles in the plot. The New York Times story is here.

Can I get an (expert) witness? (No)

Lew Clayton's IP litigation column this month in the New York Law Journal ($) mentions an Eighth Circuit decision which held that expert testimony on the question of substantial similarity in copyright infringement cases is not allowed. The case, involving architectural design plans, can be found here. Professor Patry calls it a "very happy development."

Kinkade Investigation

The LA Times reports that the FBI is investigating claims that "Painter of Light" Thomas Kinkade "fraudulently induced investors to open galleries and then ruined them financially." One gallery owner won an $860,000 arbitration award against Kinkade on just such a theory back in February.

Friday, August 25, 2006

"Bombarded with fakes"

The New York Sun has a piece today on the increasing number of art forgeries floating around: "As the market for art spirals higher, ... the number of forgeries and fakes is also on the rise, art industry experts and dealers said. The origin of the increasing number of fakes is a mystery and leads to much speculation by many in the art world that everything from international conspiracies to greedy art teachers are in on the trade. Those who have been caught include convicted art dealer Ely Sakhai and amateur artists." New York magazine had a piece on Sakhai a couple years ago.

Thursday, August 24, 2006

More on the VARA/Site-specificity Decision

The Boston Globe has a story today on the First Circuit decision I wrote about earlier in the week, which held that VARA does not apply to site-specific art.

The artist, David Phillips, is quoted as saying: "I'm not sure if I've helped artists or hurt artists in this battle. It was probably very naive of me to think that artist rights would prevail over real estate and power." It's certainly true that whereas, before, an artist could use the threat of suit under VARA as leverage to try to prevent the removal of a site-specific work, that threat is much less credible now.

There's one misstatement in the Globe article. The article says: "In 2004, the state's Supreme Judicial Court had ruled that the Massachusetts act did not apply to the case because the contract between Phillips and Fidelity was not recorded in the county registry of deeds." That isn't so. While there was some passing discussion of the registration requirement for works attached to buildings, the court's holding was that the Massachusetts act did not protect any site-specific artwork from removal (whether recorded in the registry of deeds or not).

Interestingly, the Massachusetts court was careful to emphasize that, while the act does not protect against "the conceptual destruction or decontextualization that may result from the removal of [the work's] components from the physical environment in which they have been placed," it does prohibit "the physical destruction of the crafted components." As I said in my previous post, the overly clever First Circuit decision, by contrast, by completely excluding site-specific art from VARA's orbit, leaves the component elements open to destruction.

Wednesday, August 23, 2006

Berry-Hill Still in the Game

Lee Rosenbaum remains the go to grrl for news on the Berry-Hill Galleries bankruptcy proceedings. While I was away last week, she had word that the gallery closed on a $21-million loan, allowing it to remain in business rather than liquidate under Chapter 7. The on again, off again sale of the gallery's 70th Street townhouse seems to be, well, somewhere in the middle: it's still listed for sale, but Lee quotes the chief restructuring officer for the bankruptcy as saying it's not being "marketed fully." The Maine Antique Digest has more on the loan here.

Blogging Artists

The USAToday has a story today on artists who are using blogs to sell their works directly to the public.

"We hold that VARA does not apply to site-specific art at all"

A very important decision out of the First Circuit today in Phillips v. Pembroke Real Estate, holding that the Visual Artists Rights Act doesn't apply to site-specific works.

It's an odd, hair-splitting opinion. The district court had held that the owner of the park where the work was sited could remove it pursuant to VARA's so-called "public presentation exception" ("The modification of a work of visual art which is the result of ... the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification ..."). The First Circuit today affirms the result, but doesn't think it's "sensible" to say VARA protects site-specific art yet at the same time permits its destruction by removal from its site. On its face, that's not a crazy view to take, but it seems to me the only practical difference between the two approaches is that the First Circuit's position would allow the further destruction or mutilation of the elements which made up the work (say as part of the removal process), while the district court's more cautious way of putting it would allow the removal of the work (which admittedly is, by definition, a kind of destruction) but no additional destruction or mutilation of the elements of the work (which might, for instance, allow them to be reconstituted, as a new, though related, work at a different site). It's not clear to me what the appellate court thought was to be gained by shifting the rationale (though not the result) in this way.

Professor Patry says "the result is right," but also questions the First Circuit's analysis: he says the proper way to frame the issue is whether a work of visual art protected under [VARA] is protected against removal" under the theory "that removal by itself constitutes destruction."

Monday, August 21, 2006

Playing Catch Up

Didn't find any missing works at the beach, but a lot seemed to have happened last week, including:

  • Dale Chihuly finally settled with one of the two co-defendants in his infringement suit. Terms of the settlement were not disclosed. Chihuly tells Regina Hackett of the Seattle Post-Intelligencer that he regrets the suit against his former studio assistant ("Never should have done it"). So long as the case continues with the other defendant, though, I'm afraid he isn't going to notice an appreciable decrease in litigation-induced agita.
  • A mural in Los Angeles was not destroyed.
  • The Washington Post took a long look at the attempt by Fisk University to sell off part of its art collection, discussed earlier here.

More later.

Friday, August 11, 2006

Break in the Action

I'm off to see if any of the missing Hermitage works are at the beach. Back on the 21st.

Tax Matters

Responding to a question put by Edward Winkleman at his blog, I noted last month that the recent Senate bill that would have allowed artists to once again deduct the full fair market value of works they donate to charity was not included in the final bill signed by President Bush in May. In today's New York Sun, Kate Taylor has a good piece on that issue, as well as the efforts to reduce the capital gains rate on sales of art. Before the Tax Reform Act of 1969, an artist received a charitable deduction equal to the market value of the donated work, but since then artists have been able to deduct only the cost of their materials. There've been a number of proposals over the years to restore the deduction, but none has ever stuck.

Prior to the Tax Reform Act of 1997, the top capital gains rate was 28%, which was reduced in 1977 to 20% and then to 15% in 2003 -- but not for "collectibles" (including art), which remain taxed at the 28% rate. The recent Senate bill also dealt with that, reducing the rate to 15%, but that too failed to make it into the final bill.

Putin Steps In

Russian president Vladimir Putin has ordered "a complete inventory of the country’s artistic works" in the wake of reports of major thefts from two of the country's leading art institutions. According the New York Times, the head of Russia's cultural protection says the Hermitage has begun developing an electronic inventory system, but that "at the current rate, it wouldn't be completed for another 70 years."

Thursday, August 10, 2006

Update on the "Matter Pollocks"

Alexandra Peers had a good piece in yesterday's Wall Street Journal on the so-called "Matter Pollocks," the authenticity of which continues to be hotly debated. She notes that tomorrow was supposed to have been the opening of an exhibition of the works at Guild Hall in East Hampton. Peers quotes "people close to the issue" as saying Guild Hall cancelled the show "when it received contracts showing that the Matter estate and other organizers wouldn't let the paintings be displayed as anything but Pollocks." The Matter family is negotiating with several other museums, and have one confirmed venue: the Everson Museum of Art in Syracuse, which plans to open "Pollock Matters" next June.

Peter Schjeldahl touched on this dispute in his recent review in The New Yorker of the Pollock show currently up at the Guggenheim:

"A prominent Pollock scholar had pronounced the [Matter works] authentic, though perhaps 'experimental.' Others bitterly demurred. A physics professor decided, based on a fractal analysis of the drip patterns, that the hand that made them wasn’t Pollock’s. All this played out sensationally in the press, accompanied by faintly plausible but unenchanting reproductions. They looked imitative to me. Of course, artists have been known to imitate themselves. ...

"Pollock at his peak burned his past conditioning and present turmoil, his very identity and character as a man, and he burned them clean. There’s nobody to recognize. That’s why it can be hard at first sight to tell a true Pollock from a fake. He prepared us to believe that absolutely anything was possible for him. What determines authenticity for me is a hardly scientific, no doubt fallible intuition of a raging need that found respite only in art."

Wednesday, August 09, 2006

More Russian Art Theft

The New York Times reports this morning that drawings by Russian architect Yakov Chernikhov, "worth several million dollars," have been stolen from the Russian State Archive of Literature and Art. This follows the recent news that nearly $5 million worth of art was stolen from the Hermitage Museum, in connection with which three suspects, including the husband and son of a curator who died last year, have been arrested. The Times notes that the thefts "have highlighted the antiquated inventory and security systems of Russian cultural institutions." Chernikhov's wikipedia page is here.

Vase Back on View

One of the three 17th century Chinese vases that were smashed when a Fitzwilliam Museum vistor in Cambridge tripped on his shoelaces has been put back together and will soon be back on public display -- on the same windowsill, but "this time with a brass handrail around them." Story here.

Tuesday, August 08, 2006

More on Pompidou

The Los Angeles Times's Christopher Reynolds has more on the the two works that were recently destroyed after falling from the wall at the Pompidou Center in Paris. (Earlier post here.)

Twitchell Speaks!

Los Angeles NPR affiliate KCRW recently did a show on the destruction of Kent Twitchell's "Ed Ruscha" mural, interviewing Twitchell and his lawyer, as well as LA-based art lawyer Christine Steiner and the Public Art Director for the City of San Jose, Barbara Goldstein. You can listen to the program here. The two lawyers on the panel agreed that punitive damages are available, but my understanding is that's true only under the California moral rights statute (not under VARA) and, even there, the California Act provides that if punitive damages are awarded, they wouldn't go to Twitchell personally; instead the court would "select an organization or organizations engaged in charitable or educational activities involving the fine arts in California" to receive them.

Monday, August 07, 2006

Seattle Times on "Chihuly Inc." (UPDATED)

In an earlier post on the Dale Chihuly copyright infringement lawsuit, I quoted the following wise comment from law professor Ann Althouse: "You have to think through everything before suing. You may feel aggrieved, but you have to picture what the opponent will throw back at you. Someone who never would have sued you will now come up with defenses and counterclaims, and there will be articles like this one on the front page of the NYT" (my emphasis). How about a whole special section in the Seattle Times going after virtually every aspect of Chihuly's business ? Parts 1 ("Inside the glass empire: How Dale Chihuly created a multimillion-dollar market for glass as fine art, built a mass-production company to sustain it — and set out to neutralize his competition") and 2 ("Chihuly benefits from his own philanthropy: He founded a charity to bring free art classes to senior citizens, but it also puts money into his pocket and brings a new flow of customers") are already up; part 3 ("Chihuly turns up heat on his competitors: He's been guarding his artistic style for years, warning others not to copy his shapes and techniques, but some say he’s gone too far with a copyright lawsuit") is apparently still to come. There's even a below-the-belt comparison to "Painter of Light" and shopping-mall art franchiser Thomas Kinkade.

Part 1 also confirms the news from over the weekend that Chihuly was negotiating a possible settlement with one of the two defendants, "but a premature announcement of the deal by Chihuly put the talks in jeopardy" and that the other defendant "says he has no plans to settle."

UPDATE: Part 3 is now up.

"Making the world safe for scholarship"

That's how one of Carol Shloss's lawyers describes the aim of their lawsuit against the James Joyce Estate, in this weekend piece from the Contra Costa Times. "Estates are trying to take editorial control," he adds. "That is not what copyright is about." Earlier posts on the Joyce lawsuit here and here.

Another architecture lawsuit

Last week I posted about the settlement of a lawsuit involving millions of dollars in cost overruns in the Frank Gehry-designed Walt Disney Concert Hall. Now, the Delaware Art Museum has filed a federal lawsuit against the architect and engineering firm that handled its $32 million renovation and expansion completed last year. Story here.

Saturday, August 05, 2006

Hermitage Case Solved?

The latest news reports say that two suspects have been arrested and confessed to the theft, taking place over the course of six years and with the help of a curator who died last year, of 221 pieces of art from the Hermitage museum.

Twitchell Suit Filed

Kent Twitchell filed a federal lawsuit yesterday against several nongovernmental parties he claims were involved in the destruction of his "Ed Ruscha" mural in downtown Los Angeles in June. The defendants include the YWCA of Greater Los Angeles, the Los Angeles Job Corps Center, and several contractors. The complaint seeks $5 million in compensatory damages, plus punitive damages as well. (A parallel adminstrative claim against the U.S. Department of Labor, which owns the building, is already underway.) The Los Angeles Times story is here; the LA Downtown News here.

Friday, August 04, 2006

Chihuly Settlement (UPDATED)

Regina Hackett of the Seattle Post-Intelligencer reports that Dale Chihuly has settled his copyright infringement lawsuit against a former studio assistant. Chihuly says he's tired of litigation: "If I had to do it again, I probably wouldn't. . . . I guess the most important thing I realized is something I probably knew all along. At least among artists, it is best to resolve our differences one on one." I've posted on this dispute several times in the past few months, including here, here, and here.

UPDATE: Or not. Another important lesson learned: don't go to the press too soon. More here; apparently the potential settlement is with only one of the two co-defendants in any case.

Thursday, August 03, 2006

"It's not our guilt" (UPDATED)

Two works by Los Angeles artists on loan to the Pompidou Center in Paris were destroyed after falling off museum walls. (A third piece, a Robert Irwin painting owned by the Eli Broad Art Foundation, has also been damaged.) The Los Angeles Times has the story here. Tyler Green is not thrilled with the Pompidou's response.

The museum paid $28,000 in compensation to the artist who had loaned one of the destroyed works. The Los Angeles County Museum of Art owned the other, valued at $70,000 last year, and it and the Pompidou's insurers "are negotiating compensation."

UPDATE: Carol Vogel has more on this in Friday's New York Times.

Tuesday, August 01, 2006

Hassling Their Buzz

The Seattle Times reports today that the organizers of "Hempfest" have sued the Seattle Art Museum (and the city) on the grounds that construction of the museum's Olympic Sculpture Park is interfering with the annual pro-marijuana festival's plans. The objection is apparently that "the city and the museum have not guaranteed a corridor wide enough to allow thousands of festival-goers and equipment trucks easy access to the festival site." Great quote from the director of capital projects for SAM, who said the museum has gone out of its way to work with the Hempfest organizers: "'I have to say it is a curious group. It has been hard for us to understand it.'" (Dude! That's harsh!) SAM's $86 million sculpture park is scheduled to open in October. Hempfest is scheduled for Aug. 19 and 20.

Transparency at the Getty

Last week Lee Rosenbaum reported that, in a move toward greater public transparency, the Getty has posted a bunch of internal information on its website, including compensation of its highest-paid employees. Tyler Green then took a look at some of the specifics, and Christopher Reynolds followed suit in the Los Angeles Times yesterday.

Hermitage Theft (UPDATED)

More than 200 objects, with an estimated value of $5 million, have been stolen from the Hermitage art museum in Russia. The thefts are thought to have taken place over a 30 year period. The museum says it looks like an inside job (the curator in charge of most of the missing items dropped dead at the museum while the inventory was being checked). The BBC News report is here.

UPDATE: The New York Times has more here. The Guardian reports that it still looks like an inside job, but "there remains a possibility the items ... had gone missing internally as a result of the museum's chaotic catologuing." The missing objects were not insured; apparently the Hermitage only insures exhibited artworks.

Disney Hall Settlement

The Los Angeles Times reports that the lawsuit over excess costs of construction for Walt Disney Concert Hall has been settled, with the builders to receive nearly $18 million, including $4.5 million under architect Frank Gehry's professional liability insurance policy. The contractors sought more than $43 million in their suit, filed in the fall of 2003, alleging that "changes from the original design and flawed construction plans had caused delays and cost escalations." The settlement reportedly includes a non-disparagement clause prohibiting the contractors from criticizing Gehry's work and also prohibits certain of them from using Gehry's name in advertising or marketing materials. Here are some nice images of the building. Here is Paul Goldberger's review in The New Yorker; he called it "the most important thing [Gehry] has built in his home city of Los Angeles—or anywhere else in the United States, for that matter," a "serene, ennobling building that will give people in this city of private places a new sense of the pleasures of public space."