Friday, December 28, 2007

Copyrights and wrongs

I've been mostly laying off the internets this week, but just when I thought I was out, they pull me back in: Lee Rosenbaum asks about the copyright status of the Statue of Liberty, and, relatedly, George Wallace wonders about Egypt's plans to copyright the pyramids and other famous landmarks.

Lee's hunch about the Statue of Liberty seems correct: having been registered for copyright in 1876, I don't see how it could fail to be in the public domain now. As for the news out of Egypt, it's not entirely clear what the scope of the new legislation will be -- the New York Times says "the proposed law would apply to full-scale precise copies of museum objects and 'commercial use' of ancient monuments" -- but, in any event, the real issue is going to be enforcement: it's hard to imagine other countries (including the US) enforcing the law for acts that occur outside of Egypt.

In all likelihood, things will remain quiet around here through the end of the year. Happy New Year to all!

Sunday, December 23, 2007

"My name is Frank Gehry and my buildings don’t leak"

That's Pike Magazine's choice for quote of the year. (Gehry does have a knack for defusing criticism.)

Gehry also made Fortune's list of the year's 101 Dumbest Moments in Business: "MIT sues architect Frank Gehry, alleging that flaws in his design of the school's $300 million Stata Center - which Gehry himself once described as looking 'like a party of drunken robots got together to celebrate' - resulted in problems including cracks, leaks, and mold."

Saturday, December 22, 2007

"Lyle also declined to rule out that the entire art collection could revert back to the New Mexico museum"

The Nashville Tennessean has the latest development in the Fisk proceedings. Judge Lyle has denied Fisk's motion to dismiss the O'Keeffe Museum from the proceedings seeking approval of its deal with the Crystal Bridges Museum. This comes three months after Judge Lyle rejected a settlement of the O'Keeffe Museum's lawsuit in large part because the Crystal Bridges offer was "obviously" better. I'm still mystified.

Loan On

I haven't been keeping up with the story of the threatened cancellation of a loan of a group of important works from Russia to a U.K. museum, since the news seemed to change every five minutes. But now it seems that the loan is definitely back on. The New York Times reports this morning:

"One day after announcing that it was canceling plans to lend paintings from its museums to a major exhibition in London, Russia reversed itself after the British government moved up the date on which legislation protecting art from seizure in lawsuits would become effective .... The exhibition, 'From Russia: French and Russian Master Paintings 1870-1925,' was scheduled to open at the Royal Academy on Jan. 26. But Moscow refused to lend major French and Russian paintings out of concern that they might be held. ... Among the paintings to be shown were prominent Impressionist and Post-Impressionist works, which descendants of some Russian collectors claim were taken by the new government after the Bolshevik Revolution in 1917. James Purnell, head of the British Culture Department, said on Thursday that Britain would move up, to early January from late February, the effective date of a provision in legislation that bars the seizure of art lent on a government-to-government basis."

Barnes Delay

As a result of a change in counsel, the deadline for the Friends of the Barnes Foundation's brief has been extended from Dec. 31 to Feb. 29. More here.

Thursday, December 20, 2007

"It was a professional job; it was something they studied because the paintings were in different rooms"

Major art theft in Brazil this morning:

"Armed with nothing more than a crow bar and a car jack, it took thieves just three minutes to steal paintings by Pablo Picasso and Candido Portinari, worth millions of dollars, from Brazil's premier modern art museum. Authorities said they hit the Sao Paulo Museum of Art just before dawn Thursday — a time when the city's busiest avenue is deserted and the guards inside were going through their shift change."

Donation Deductions (UPDATED)

In The Christian Science Monitor, Daniel Grant looks at the question whether the government should allow tax deductions for charitable giving at all. He argues that "they don't necessarily encourage giving, and they don't always help the poor."

Previous post on this issue here.

UPDATE: Since charitable deductions are allowed, if you're looking for suggestions about where to give, Tyler Cowen has some pointers.

Public Photography Rules Update

In the Village Voice, Anthony Kaufman reports on the "final and sparsely attended" public hearing on New York City's proposed street photography rules.

"One can't help wondering whether there are any more such subprime objects in the blue-chip collections of the world" (UPDATED)

Bloomberg critic Martin Gayford on the AIC's fake Gauguin.

UPDATE: "The best forgeries are those that haven't been discovered yet."

A Different Kind of "Factory"

The Atlantic's James Fallows visits the Dafen "art factory village" in southern China where "in one sprawling area are many hundreds of individual art factories, in which teams of artists crank out hand-painted replicas of any sort of picture you can imagine. European old masters. Andy Warhol. Gustav Klimt. Classic Chinese landscapes. Manet. Audubon. Botero. .... Thomas Kinkade, the 'Painter of Light.' ... This and more is on sale, priced more or less by the square meter."

Dealer Tax Fraud

The New York Sun reports that Michael Weisbrod, of the Weisbrod Chinese Art gallery in New York, has pleaded guilty to charges of, among other things, failing to collect sales tax on sales from the gallery. He will have to make up the tax payments and pay $600,000 in fines, and "will likely be sentenced to conditional discharge in April."

Wednesday, December 19, 2007

Fractional gift news

The New York Times reported last week on a major "fractional and promised" gift to the Los Angeles County Museum of Art. As originally published, the article erroneously described an aspect of the current law governing fractional gifts, which led to the following correction being appended to the story:

"Because of an editing error, an article...about a promised gift of 130 artworks from Janice and Henri Lazarof to the Los Angeles County Museum of Art included an outdated reference to tax law governing partial donations....Under the current law, the tax deduction for partial gifts does not rise from year to year if works appreciate in value. Thus donors no longer benefit from bigger deductions for such appreciation."

Lee Rosenbaum wonders "how was it that the Lazarofs were willing to make such a major fractional and partial gift in the current unfavorable tax climate for this type of donation, which museum officials claim has essentially frozen this form of largesse?" The answer, it seems, is that technical corrections have at last been introduced in Congress that will fix the problematic estate and gift tax consequences that were created by the enactment of the new law last year. I'm told by a lobbyist close to the negotiations that the corrections have bipartisan support and have already been vetted by the Treasury, so it's assumed by all concerned that they will eventually be enacted, and with an effective date retroactive to the date the original legislation took effect, thus covering the Lazarofs' gift to LACMA.

Tuesday, December 18, 2007

"Friends of the Barnes' Legal Case in Disarray"

Lee Rosenbaum reports. More here from Jim McCaffrey in the Philadelphia Bulletin.

Monday, December 17, 2007

Gardner Grand Jury Hearings

The Boston Globe reports that a federal grand jury is scheduled to hear evidence this week regarding the infamous 1990 robbery at the Isabella Stewart Gardner Museum. "Over the years, the crime achieved notoriety as the largest unsolved art theft in world history with the value of the stolen works estimated between $300 million and $500 million."

Derek Fincham: "Whether a resolution will emerge remains to be seen, but right now there are more questions than answers, most notably: where are the paintings?"

Sunday, December 16, 2007

"They were just happy having a drink of cider in front of telly"

Newsweek takes a look at "the Greenhalgh family—47-year-old Shaun and his octogenarian parents, Olive and George—[who] lived quietly together in a housing project in the heart of Britain's postindustrial north," where they managed to pull off a string of highly successful art forgeries, including the fake Gauguin recently discovered at the Art Institute of Chicago.

Thursday, December 13, 2007

The fake Gauguin continued: Is an international registry the answer? (UPDATED)

At his invaluable Illicit Cultural Property Blog, Derek Fincham weighs in on the Art Institute of Chicago's fake Gauguin. He thinks it "reveals at least two troubling matters":

"First, how many more forgeries are out there? How easy is it to trick authenticators? The best in the world looked at this sculpture and were duped. ...

"Second, I think it reveals the continuing need for more provenance information in art and antiquities sales. The answer may be for an international registry which tracks buyers and sellers when objects are bought and sold. Until such a system emerges, the market continues to leave itself open to this kind of embarrassment."

I'm interested in the second idea. The notion of a registry of artworks keeps coming up whenever something goes wrong in the art market, but I'm not sure I see how it's supposed to work. How would it have helped in this case, for example? Presumably there would be some mechanism for listing older works (like this one) with the registry -- wouldn't there be every bit as much opportunity for fraud at that stage as there was in getting the work accepted for sale at Sotheby's? After all, by all accounts the fraudulent work here came with a convincing provenance. Says The Art Newspaper:

"According to the Sotheby’s 1997 catalogue entry, The Faun had belonged to the artist Roderick O’Conor, a friend of Gauguin in the 1890s. However, although O’Conor was given some works by Gauguin, this one is said to have [been] bought from Nunès and Fiquet in 1917, and then to have passed down his family. ... [The con-artist consignor] had supplied Sotheby’s with a copy of what appeared to be a Nunès and Fiquet bill, selling The Faun to O’Conor."

Couldn't the same scheme have fooled whoever was in charge of the international registry?

Perhaps Derek can sketch out in a little more detail how he envisions the registry working.

UPDATE: Derek responds here.

Martin Responds

James Martin has a letter to the editor of The East Hampton Star, responding to comments by Alex Matter's lawyer, Jeremy Epstein, in a story that ran last week. He writes: "Given the statements attributed to Mr. Epstein, it is no mystery why very few experts are willing to speak publicly on matters related to the authenticity of fine art and other cultural property."

The Fractional Gifts Legislation

Daniel Grant has a story in the Maine Antique Digest about the fractional gifts legislation that was introduced in Congress in October (about which see here). No news about its progress.

Grant offers the following summary:

"The new legislation, titled the 'Promotion of Artistic Giving Act of 2007,' would restore the open-end length of the gift, only requiring that the donation be completed within nine months of the death of the donor. It would again allow escalating value deductions during the term of the gift, as long as the Internal Revenue Service's art advisory panel reviews the higher appraisals. Additionally, the bill would repeal the requirement stated in the Pension Protection Act that requires museums have 'substantial physical possession of the property' during the donation process."

The first two sentences are largely correct, but I don't think the last sentence is right. The "substantial physical possession" rule would still apply (except that, since, as Grant points out, gifts would no longer have to be completed within a 10-year period, presumably the museum would have to take possesson at some point prior to the new nine-months-of-death deadline).

Wednesday, December 12, 2007

More on the Fake Gauguin (UPDATED)

Lots more on the fake Gauguin at the Art Institute of Chicago, mentioned here yesterday. The Chicago Sun-Times says the piece "is one of hundreds of art forgeries by Shaun Greenhalgh of Bolton, England, who was sentenced to more than four years in a British prison last month." The Art Newspaper reports that it was sold for £20,700 in 1994 at Sotheby's in London to a pair of London dealers, who then sold it to the Art Institute a few years later for "around $125,000." Derek Fincham wrote about the Greenhalgh family of art forgers last month. Megan McArdle is baffled by the whole thing.

The Sun-Times says "museum officials are in discussions with the dealer and Sotheby's about being compensated," and The Art Newspaper says "Sotheby’s is now expected to reimburse the Art Institute of Chicago." I don't know what the law is in the U.K., but in the U.S. the auction houses typically guarantee the authenticity of works only for five years from the date of sale.

UPDATE: Thursday's New York Times has this story by Carol Vogel.

"If there's anybody out there that wants a hole drilled in their head and a pineal extender grafted to their pineal gland, let me know"

That's a message from bioartist Adam Zaretzky (no relation), in this NPR piece on a group of artists whose work involves "engineering living tissue and even living beings." One couple has "grown a replica of an ear with living human skin cells, miniature wings with the flesh of a pig and mouse cells in the shape of a tiny leather jacket." Stanford Law Professor Hank Greely says: "The legal situation is murky in several directions, and I think it's highly likely that not all artists are carefully advised about it."

Warning Lifted

Christa Desrets reports in this morning's Lynchburg News & Advance that Randolph College has had its warning status lifted by its accrediting organization. The Southern Association of Colleges and Schools had placed the school on warning last December after determining that it was spending its endowment at an unsustainable rate.

But opponents of the (temporarily enjoined) sale of paintings from the school's Maier Museum shouldn't get their hopes up: a Randolph spokeswoman says, "We still have plans to sell the unrestricted artwork in the future. That decision hasn't changed."

Lee Rosenbaum has more.

Tuesday, December 11, 2007

"Heroes" Suit Dismissed

Southern District Judge Denise Cote has dismissed a copyright infringement claim involving the NBC TV series "Heroes," mentioned earlier here. The decision is here. The plaintiffs -- "divination artists" known professionally as "The Twins" -- claimed the series infringed their copyrights in a 777-page handwritten novel The Twins: Journey of the Soul, a short film based on the novel entitled The Letter, and their painting series Envious of America. According to Judge Cote, the claim "focus[ed] particularly" on the similarities between a character named Idai from the novel and the character Issac Mendez in the TV series, noting that "both (1) are 'minorities' ..., (2) have the ability to 'paint the future'; (3) often paint in oil in large canvasses; (3) [sic] create depictions of 'two landmark New York City buildings being destroyed' (Idai the Twin Towers, Issac the Empire State and Chrysler Buildings); (4) create paintings of a bus being destroyed in the future, which prediction is then validated in a newspaper article; and (5) attempt to stop the destruction of those buildings."

The case was decided on idea vs. expression grounds. On summary judgment (the case was before her on a motion to dismiss, which she converted to a motion for summary judgment), Judge Cote held that, "having reviewed these works in some detail, it is readily apparent that these claims are wholly without merit, as nearly every instance of alleged similarity between Heroes and the plaintiffs' work relates to unprotectable ideas rather than protectable expression." She said that "a 'minority artist' who has the ability to paint the future is an 'idea' that is not protected under the copyright laws." After reviewing a number of other alleged similarities between the works, she concluded that "while the line between mere 'ideas' and protected 'expression' is famously difficult to fix precisely, these alleged 'similarities' are textbook examples of the former. ... [I]t must be concluded that whatever similarities may be said to exist between Heroes and plaintiffs' works are not due to protected aesthetic expressions original to the allegedly infringed work, but rather related to ideas in the original that are free for the taking."

Next up: NBC's request for attorney's fees.

They do say the works look fishy

Another odd little twist regarding the "Matter Pollocks": apparently Matter donated one of the works to the Mystic Aquarium! Full story here. "Plans are to sell it and use the proceeds to help fund the next stage of the aquarium's development. [A senior vice president at the aquarium] estimated it could be worth anywhere between $1 million and $10 million." Given recent developments, that sounds a little optimistic; I hope they have other funds in place to fund the next stage of the aquarium's development.

If the work does have value (perhaps as a "lottery ticket" giving the holder a chance at a real Pollock if the consensus regarding their authenticity can somehow be turned around), the "related use" rule (which
requires that the donated work be related to the exempt purpose of the donee charity) would probably prevent Matter from taking any tax deduction for the donation in any event.

Fake Gauguin

Tyler Green reports that the Art Institute of Chicago has determined that a Gauguin sculpture in its collection is a fake. He says the museum purchased the work from a private dealer who had bought it at auction from Sotheby's.

Dram Shop Suit Dismissed

The Aspen Art Museum has been voluntarily dismissed from a lawsuit (mentioned earlier here) brought by a cab driver who claims he was assaulted by an intoxicated passenger after he left a party at the museum. Story here. Apparently "the party’s organizer, Tony DiLucia, filed an affidavit testifying that the alleged attacker ... was not served alcohol during the party." "I have no reason not to believe Mr. DiLucia, so I agreed to dismiss," says the cab driver's lawyer.

Kiss This

From Callen Bair comes word that the French gallery that was showing the Cy Twombly painting that was kissed/defaced by Rindy Sam this summer has "mounted a response," an exhibition titled "I Don't Kiss":

"The exhibition is made up of works intended to express outrage at the kiss and includes Bertrand Lavier's interpretation of Salvador Dali's red lips-shaped couch (Lavier has placed the lips on top of a freezer), Douglas Gordon's human skull marked with the impression of his own lips, painted in the exact shade as were Twombly's aggressor, and, alas, the restored [Twombly] triptych."

Callen also notes that the other paintings that were on view with the triptych this summer are now up at Gagosian Gallery in Chelsea ("where they are watched over by suited security guards").

Wisecracks (UPDATED)

In this morning's New York Times, Sarah Lyall has some fun with Doris Salcedo's "Shibboleth," "the giant crack in the floor at the Tate Modern" which, as I noted here, has led to a reported 15 (minor) injuries since it opened in October:

"'How dim would you have to be?' Mark Knight, a 41-year-old nurse from Ipswich, asked rhetorically the other day. '"Oh, no, I wasn’t expecting the crack to be there,"' Mr. Knight whined, imagining the inner monologue of an injured party. 'There’s a crack there, but hey, when I put my foot in there, I didn’t expect to trip in it.'"

Lyall writes that, when she was there, "visitors seemed filled with wonder, not only at the artwork’s grand gesture but also at the mildness of the hazard it represents":

"The first thing you see when you enter the [gallery] are signs saying, 'Warning: Danger of Falling,' illustrated with a picture of a stick figure who has tripped on something and is about to fall down. Also, the crack is hard to miss, there on its own in the middle of the floor, surrounded by people taking pictures of it, peering down into it, stepping across it and walking alongside it. 'The exhibit is all about the crack,' said Peter Girard, 38, an American tourist. 'It’s a really big crack. What are you looking at if you’re not looking at the crack?' ... Two visitors from the Netherlands, Manon Straatman and her husband, Victor, were equally mystified by the perils of 'Shibboleth.' 'Maybe someone walks into the museum and isn’t interested in what’s in the museum,' Mrs. Straatman mused. Mr. Straatman said the crack was modest in its width and depth, hardly the sort of gaping abyss into which you might plummet to your doom."

But wouldn't you know it . . . as they are talking, someone nearly plummets to her doom:

"'Oh look, there’s someone falling now,' [Mr. Straatman] said suddenly. Indeed there was: A woman nearby had caught her foot in the crack and pitched awkwardly forward, ending up sprawled on the floor. The woman, who later identified herself as Anne McNicholas, a 51-year-old medical researcher from New Zealand, said she had arranged to meet some friends in the gallery and had not been looking where she was going. 'I just didn’t see it,' she said. She was not impressed by the exhibit, particularly in light of her injuries: a nasty scrape-cum-bruise on her right knee and an even nastier one on her left shin. 'I don’t think it should be there at all.' she said. 'It’s not America,' she added pointedly, 'so I won’t sue.'"

The last word is given to Uros Vasiljevic, a 29-year-old businessman visiting from Serbia: "Art is dangerous sometimes."

UPDATE: Richard Lacayo gets to thinking about some really dangerous art.

Monday, December 10, 2007

Counterfeit Suit

Josh Baer reports:

"Ronald Perelman and his associated companies have filed suit in New York against Galerie Jacques de Vos for $20 million alleging 'a pattern of racketeering using US mail wires to sell counterfeit goods.'"

Saturday, December 08, 2007

"Is Alex Matter prepared to concede the paintings are not authentic? No. We don’t regard Mr. Martin’s conclusions as reliable." (UPDATED)

Long story in the East Hampton Star on the latest developments (see here) regarding the "Matter Pollocks." Helen Harrison, director of the Pollock-Krasner House and Study Center, notes that "there is a general reluctance to speak for attribution on any matter regarding Pollock and authenticity. 'Nobody wants to be in that position even with indemnification,' she said. A Pollock authentication committee disbanded several years ago. 'They wound up business after their third lawsuit.'"

There are also a number of quotes from Matter's lawyer, Jeremy Epstein of Shearman and Sterling, regarding forensic scientist James Martin, who reportedly held back on releasing the results of his research for fear that Matter would sue him if he did:

"'After the draft report was received we called him up and said we wanted to discuss it with him ...,' Mr. Epstein said of Mr. Martin. 'He refused to meet with me. . . . I’ve been a lawyer for 30 years and he’s the only hired expert I know of that declined to meet with the person who hired him.' Without such a meeting, Mr. Epstein said, they considered the report unfinished and had not authorized Mr. Martin to release it. 'We asked to see the underlying scientific documentation. He said it was destroyed, but he would recreate it if paid a lot more money. We refused.' Mr. Epstein added that he had not threatened litigation, as some news accounts have reported. 'I’ve said all along no one is threatening to sue anybody. It’s a figment of Mr. Martin’s imagination.'"

Although there was a general sense that Martin's IFAR presentation was the final nail in the Matter Pollock coffin, Matter, I guess we should not be surprised to learn, is not giving up. Epstein says additional research is being conducted in Europe, and it's "expected to take some time .... 'It’s going to be a while before all the facts are set forth.'"

UPDATE: Martin responds.

Friday, December 07, 2007

"It is now the intention of the foundation to completely clarify any ownership over the title once and for all" (UPDATED)

I missed this last week, but the Andrew Lloyd Webber Art Foundation, after winning dismissal of a New York action seeking to reclaim a Picasso painting it had been trying to auction off, has started proceedings in the British courts to confirm its ownership of the work.

UPDATE: Related story from Carol Vogel in The New York Times Saturday:

"In a legal strategy that is spreading in the art world, the Museum of Modern Art and the Solomon R. Guggenheim Foundation jointly asked a federal court yesterday to declare them the owners of two Picasso paintings that a claimant says were sold under duress in Nazi Germany. A request for declaratory judgment, filed in Federal District Court in Manhattan, involves 'Boy Leading a Horse' (1906), donated to MoMA in 1964 by William S. Paley, the founder of CBS, and 'Le Moulin de la Galette' (1900), given to the Guggenheim in 1963 by the art dealer Justin K. Thannhauser. The museums asked the court to declare that the paintings had never been part of a forced sale and rightfully belong to them."

Another Photographer Lawsuit

From this morning's New York Sun:

"A Columbia University student who was handcuffed and detained for taking pictures in the subway while working on an art project is suing the New York City Police Department."

The suit is being brought by the New York Civil Liberties Union. A similar case is ongoing in Washington (see here, with an update here).

Thursday, December 06, 2007

"Oh, Richard Prince has a photograph just like that!"

Randy Kennedy in today's New York Times:

"Since the late 1970s, when Richard Prince became known as a pioneer of appropriation art — photographing other photographs, usually from magazine ads, then enlarging and exhibiting them in galleries — the question has always hovered just outside the frames: What do the photographers who took the original pictures think of these pictures of their pictures, apotheosized into art but without their names anywhere in sight?"

To find out, he talks to one of them, "a successful commercial photographer from Chicago named Jim Krantz," whose work Prince used as part of his well-known Marlboro Man series. Krantz says he just wants some credit and has "no intention of seeking money from or suing" Prince, and the story largely skims over the legal issues, saying only that Prince's "borrowings" "seem to be protected by fair use exceptions to copyright law." The situation is actually much more complicated than that. You could organize a whole symposium about the legal issues raised by appropriation art -- in fact, someone has, and I wrote about it here. As I said then:

"a better sense of the bottom line was conveyed by Judge Leval when, after giving some general remarks on copyright and fair use, he asked, 'So what's it all mean for appropriation art,' then paused . . . and kind of threw up his hands and said: 'I don't know.' He went on to say the law in this area is 'astonishingly unpredictable' and that it's 'very hard to know what the law is.' He said 'almost any question' in this area is 'very difficult to answer' and added that he doesn't know of any area of law where there are so many reversals by the appellate courts."

More on today's story from Sergio Muñoz Sarmiento here. Prince's retrospective at the Guggenheim continues through Jan. 9.

The Best Interests of the People of the State of Tennessee

Hazel O'Leary, Fisk University's President, says it could be "several years" before the school sees any money from its proposed deal with the Crystal Bridges Museum. A trial to determine whether the sale can go forward is scheduled for February, and O'Leary says she "expects that even if the school wins its case, an appeal could take up to another three years."

Wednesday, December 05, 2007

ICA Settlement

Boston's Institute of Contemporary Art has agreed to pay $2.2 million to settle a lawsuit brought by the construction company initially hired to build its new space. Geoff Edgers reports in the Boston Globe. Earlier post here.

Tuesday, December 04, 2007

Bridging the Gap

Bill Patry weighs in on the dismissal of Santiago Calatrava's lawsuit over modifications to his bridge in Bilbao, mentioned earlier here. He's heartened to see that "European courts can be every bit as pragmatic as their crass U.S. counterparts when the facts are right: yes there is this thing copyright, yes it was violated, but hey there are other factors which can trump it, namely the public interest."

Monday, December 03, 2007

Randolph News

Opponents of the Randolph College art sale have raised half the million dollars needed to secure the temporary injunction blocking the sale and have been given an extension of time until February 15 to raise the other half. Lee Rosenbaum calls it "another court victory" for the plaintiffs, but I'm not sure it's "another" victory so much as a continuation of the initial victory: the sale is on hold until the court can resolve the case on its merits, and, if the sale is ultimately approved and the delay ends up costing the school money (because of changed market conditions, for example), there will now be a million dollars available to make it whole. As Richard Lacayo notes, "this prolonged drama has many more chapters to come."

1 in 10

That's how many paintings on the market aren't what they're claimed to be, according to Melbourne University art conservation expert Robyn Sloggett. Story here.

"The defamation problem, coupled with the 'right of publicity,' are legal issues that could give legitimate artists like Kauper headaches"

Writing in the Boston Phoenix, Harvey Silverglate says Kurt Kauper's (imagined) nude paintings of Boston Bruin hockey heroes (mentioned earlier here) reminded him "of the convoluted mish-mash that First Amendment law has become." He argues that the legal picture "isn't as simple" as Geoff Edgers's Boston Globe article made it seem, for several reasons. First, he thinks the subject of this sort of work could have a defamation claim to the extent the painting suggests he actually consented to, and sat for, the painting (I guess the defamatory statement expressed would be: "Bobby Orr is the kind of person who would pose naked for a painting"). Next, he wonders what would happen "if the painting were featured in a museum exhibition, and the athlete's nude image were on the cover of the show's catalogue, which was then reproduced thousands of times and even sold commercially, as some museum show catalogues are?" (It's worth noting in this regard that the image at issue in Nussenzweig v. DiCorcia, discussed recently here, and mentioned by Silverglate in the article, was included in the catalogue for the exhibition it was a part of.) And last, he notes that, while the use may well be protected under New York, or Massachusetts, law, "some states provide more onerous restrictions on artists than others, usually under the guise of protecting the subjects who are claiming a property right in their own image or likeness" (i.e., so-called "rights of publicity").

The end result, he argues, is that "the occasional conflict between First Amendment rights, copyright interests, and an individual's private property right to his or her own image has caused many a judge to scratch his head, and many a lawyer to offer advice hedged with qualifications."

With qualifications, I think that conclusion's about right. Sort of. As a general matter.

Again with the Santa's Butt

A beer distributor is suing the Maine Bureau of Liquor Enforcement for "barring it from selling a beer with a label depicting Santa Claus enjoying a pint of brew." A complaint was filed in federal court last week by the Maine Civil Liberties Union.

Same thing happened last year, with a different, but thematically similar, label. "'Last year it was elves. This year it's Santa. Maybe next year it'll be reindeer,' said Daniel Shelton, owner of the [distributor]."