Tuesday, September 30, 2008

On Hold

Wired News reports that the House won't be taking any action on the orphan works bill until after the Nov. elections. Apparently they've got more important business to deal with.

Monday, September 29, 2008

Renoir Recovered

From this morning's New York Times: "Italian police have recovered a Renoir painting that was stolen from a private collection 33 years ago .... Following a tip from an art critic, Vittorio Sgarbi, who was enlisted to evaluate the work by a gallery owner ..., the police arrested the gallery owner and two other suspects. The oil painting ..., which is valued at $730,000, was stolen from a family in Milan in 1975. It was recovered along with a forgery of a Manet work, which Mr. Sgarbi had also been asked to appraise."

"Britain's art collections are taking a beating"

Also via David Nishimura, the Guardian reports:

"Details released under the Freedom of Information Act by the National Gallery, the Tate and the V&A, reveal that dozens of works have been dented, scratched, dropped and vandalised over the past five years. The culprits are not only malicious or clumsy visitors, but also partygoers, staff and removal men."

"Amateurs, beware"

David Nishimura on the Robert Mardirosian conviction: "With top-rank artworks, thieves often find out that it's not easy to turn them into cash. The only crooks who seem to turn a consistent profit are those who go for a quick ransom payment -- but I suspect that the only ones who manage to pull it off are those who have some experience in the field."

Sunday, September 28, 2008

Orphan Works Act Update (UPDATED)

It's passed in the Senate. Now on to the House, which, as Photo District News points out, has been considering a slightly different version.

UPDATE: The Association of American Editorial Cartoonists "slams" the Senate: "It seems that Congress is using the fiscal crisis as cover to pass this law, which will make it easier for copyright infringers to steal our work."

Genuine Faker

The U.K. Independent has the latest on famous forger John Myatt, mentioned earlier here and here (and soon to be the subject of a major motion picture). He currently has a show at Harrods in London.

Embezzlement Suit

Fruitlands Museum is suing its former deputy director and chief financial officer (and three of her children) for an alleged embezzlement scheme:

"The suit alleges that Kempton and her children obtained credit cards in the museum's name and made personal purchases. It also alleges that Kempton used museum funds to pay for personal credit cards; violated her lease by not paying monthly rent for a museum-owned cottage; used Fruitlands funds to pay for utilities at the cottage; and diverted museum funds to her children."

Boston Globe story here. More here from the Harvard Post. Boston criminal lawyer Sam Goldberg hopes the family has "retained experienced counsel to prepare for the onslaught of the filed civil complaint [by the museum] as well as the almost-surely upcoming criminal indictments."

For previous installments of museum financial officer embezzlement, see here and here.

Le Rêve on View

The Picasso painting that Steve Wynn put his elbow through in 2006 will be publicly exhibited for the first time since the accident in a show opening Oct. 15 at Acquavella Galleries in New York. More here from Bloomberg's Lindsay Pollock. Wynn ended up suing Lloyd's of London over the proper valuation of the loss (he claimed it was $54 million). The case was promptly settled.

Wednesday, September 24, 2008

"Too far, and not far enough"

Mark Dery on the orphan works bill:

"As written, the OWA won’t solve anything. With its impossibly vague talk of 'reasonable compensation' and 'diligent' searches, its fundamentalist faith in the private sector (commercial registries) and technological quick-fixes (image-search technologies), the OWA is, as Lessig argued on his blog, a bill that both 'goes too far, and not far enough.' Too far because the weasel phrase 'reasonably diligent search' will provide legal cover for unwitting—as well as willful—infringers of copyrighted works that have washed up on the web without identifying information, yet are not listed in commercial registries. Not far enough because the line the OWA draws in the sand between a good-faith effort to determine the copyright status of a putatively orphaned work and intentional infringement is, in Lessig’s wonderfully pungent phrase, 'just mush.'"

Monday, September 22, 2008

"The easy part is stealing it; the hard part is selling it"

"Living legend" FBI art-squad agent Robert Wittman retired last week. Stories here and here. Earlier post here.

Next chapter: he's going to work for the Fox Rothschild law firm, to "assist security directors in museums, galleries and auction houses to protect their collections and represent collectors." Says Wittman: "There's a huge exploding market ripe with fraud and forgery out there."

Catching Up

Sergio Muñoz Sarmiento points to a couple of stories I missed last week.


"Thieves have stolen an engraving by Spanish master Francisco de Goya from a temporary exhibition in Colombia. The engraving ... was one of 80 by the Spanish artist on loan from the Goya Fuendetodos Cultural Corporation of Zaragoza, Spain."

And two:

"A Midtown gallery from which dozens of photographs of Salvador Dali were stolen didn't do enough to safeguard the precious works, their owners charged in a lawsuit filed yesterday. The heirs of famed photographer Philippe Halsman, who frequently collaborated with the Spanish surrealist, want the Howard Greenberg Gallery to pay them $684,000 for the lost photos, plus damages. They sold several photos through the gallery beginning in 2004, according to the complaint filed in Manhattan federal court. When they asked the gallery to return all of the unsold works ... the owner told them they were stolen, according to the complaint."

"The greatest and most important earthwork in the world was potentially threatened by a corporation that wanted to make a buck"

It's Spiral Jetty week over at Tyler Green's place. From today's opener: "The question is: Is Spiral Jetty threatened by future commercial development? And are arts organizations, most of which have little or no experience in dealing with the confluence of interests and entities involved in preserving an artwork in the landscape, using all available and appropriate measures to save the Jetty?"

I mentioned this story (and my client, the artist Nancy Holt) earlier here.

Friday, September 19, 2008

"Please know that you need to remove our logo and the NFL logo from all images"

The Washington Post reports on the latest squabble involving sports artists and trademark rights. At her 43(B)log, Rebecca Tushnet has a pithy summary: "painter paints a picture of Redskins player in uniform; wishes to sell painting; now there’s a dispute over the presence of Redskins [trade]marks in the painting."

Tushnet is also quoted within the article: "The idea in general is that we want artists to be able to portray the world as they see it, and we live in a heavily branded world."

She mentions the Tiger Woods case. There is also the University of Alabama's ongoing lawsuit against sports artist Daniel Moore. Both cases are discussed here.


The Kansas City Star: "The Kansas City Council has interfered with the Nelson-Atkins Museum of Art’s ability to use its own real estate, according to a new lawsuit filed in federal court. The lawsuit, which the gallery’s foundation and trustees filed Wednesday, asked a judge to stop the city from enforcing an ordinance the council passed this summer that barred the museum from putting offices on property it owns near the gallery."

Wednesday, September 17, 2008

"These works belong, properly, in the place where the largest number of people can enjoy and learn from them"

An interesting student Note in the Notre Dame Law Review on fractional gifts of art (and I don't say that merely because it credits me with giving a name -- the "mismatch problem" -- to the most serious problem with the 2006 legislation on the subject).

The technical corrections enacted earlier this year make it a little out of date, but still worth a read.

Savage Suit

From the New York Post: "A prominent art dealer is suing the makers of a movie that portrays him having incestuous three-way sex with an ex-girlfriend and the son who murdered her."

The movie is "Savage Grace," starring Julianne Moore. The art dealer is Sam Green.

Tuesday, September 16, 2008

"Morganelli said that he is not looking to target any specific voting demographic by making this effort a part of his agenda"

The Temple News has more on Democratic candidate John Morganelli, who has made the Barnes battle an issue in the Pennsylvania attorney general election. "If he becomes attorney general, Morganelli would like the case reopened so that a judge can make a decision based on 'more balanced evidence.' He said certain proposals were overlooked, including one by Montgomery County commissioners to offer $150 million to keep the Barnes in its current location." I don't recall any $150 million offer, but there was this.


Dutch detectives have recovered five 17th-century paintings that were stolen from the Frans Hals Museum in 2002. "The Golden Age works, worth millions of dollars, were found after an 18-month investigation by Dutch police who used undercover agents to crack the case and worked closely with Britain's Serious and Organized Crime Agency." Three men are "being held on suspicion of receiving the stolen paintings," and "police said they seized cars, including a Ferrari and a Range Rover, at one of the houses along with handguns, body armor, designer watches, drugs and an undisclosed amount of cash."

Monday, September 15, 2008

"Anyone with a touch of larceny in his heart cannot but thrill to hear of such feats of expert-foxing legerdemain"

Terry Teachout on Jonathan Lopez’s “The Man Who Made Vermeer: Unvarnishing the Legend of Master Forger Han van Meegeren.”

Here is another review, from the New York Sun: "In the case of art fraud, however, whatever admiration we feel for the skill of a forger who passes off a modern fake as a venerable Old Master and makes fools of the experts is mixed with a sharp sense of betrayal. A painting that was once proclaimed a masterpiece suddenly loses its beauty when shown up as a forgery. How were we so thoroughly hoodwinked? What we thought was a Vermeer or a Frans Hals and flocked to see turns out overnight to be nothing but kitsch. And yet, isn't it the same painting, fake or not? ... [A] forged artwork makes us question our very eyes."

Friday, September 12, 2008

"The only party with the authority to seek to enforce those conditions is the attorney general"

So argues . . . the attorney general, in the Fisk-O'Keeffe appeal. The Tennessean reports here. Lee Rosenbaum thinks "it's time that Fisk realized that it's squandering money on a protracted, losing lawsuit that could be better spent on education (or on maintaining its distinguished art collection)."

The bulk of the argument is that the lower court was mistaken in finding that the O'Keeffe Museum, as O'Keeffe's successor, has a right of reacquisition in the collection or otherwise has standing to challenge the sale. His bottom line position is that the case should be remanded for further proceedings to determine what cy pres relief (if any) Fisk is entitled to: "It is entirely possible that a much less drastic cy pres remedy than selling the collection would satisfy Fisk's needs if Fisk is entitled to any cy pres relief at all."

The brief does not mention the fact that in early 2007 the Attorney General seemed to have approved a settlement between Fisk and the O'Keeffe Museum which would have involved the sale of part of the collection.

Miro Suit

Josh Baer: "Frank Ribelin has sued Tom Schmidt and Christie’s alleging they tried to sell a work of his that had been stolen from the Jesuit Dallas Museum."

The Courthouse News Service has more. The work is a Miro. Ribelin says it was stolen in 1991. Schmidt consigned the piece to Christie's, who contacted the Art Loss Register and discovered that it is listed as stolen. Christie's is holding the work pending resolution of the lawsuit in NY state court.

Thursday, September 11, 2008

Heads Roll

Or at least a head:

"David Mickenberg has resigned as director of Wellesley College's Davis Museum and Cultural Center, two weeks after news broke that the museum's prized 1921 painting by Fernand Léger had gone missing."

Geoff Edgers has the full story in the Boston Globe. Richard Lacayo notes that "the AWOL Leger wasn't mentioned in the announcement yesterday by Wellesley President H. Kim Bottomly that Mickenberg was leaving, but it's fair to suppose the two developments might be connected."

Wednesday, September 10, 2008

"The thief, or thieves, was either very smart or very, very lucky"

The Los Angeles Times:

"The side door of the home in the hills of Encino was unlocked on the Saturday morning in late August. The elderly owners were in a back room, otherwise occupied. The maid had stepped out. So the thief stepped in -- and made quick work of the wealthy real estate investors' multimillion-dollar art collection. Marc Chagall's 'Les Paysans,' gone. Diego Rivera's 'Mexican Peasant,' a blank spot on the wall. Arshile Gorky's 'Cubist Still Life,' ditto. ... By the time the maid returned about an hour later, at least a dozen artworks ... had been stripped from the home. ... The anti-theft system, for whatever reason, did not prevent the heist."

Derek Fincham reviews the four possible reasons for the theft.

Tuesday, September 09, 2008

More on Taxation of Postmortem Publicity Rights

Back in April, I mentioned a piece in the Yale Law Journal "Pocket Part" examining the estate tax implications of some newly enacted California publicity rights legislation. In the current "Pocket Part," SMU's Joshua Tate responds.

Monday, September 08, 2008

"The problem concerns the exploitation of works whose authors or rights holders cannot be located"

Columbia law professor Jane Ginsburg on the proposed orphan works legislation.

A taste:

"The bills define a 'qualifying search' as a 'diligent effort to locate the owner of the infringed copyright.' ... To assist in searching, section 3 of the bills provides that the Copyright Office is to keep a database of pictorial, graphic and sculptural works, and the effective date of the act, with respect to those works, is delayed by four years (1/1/09 for other works; 1/1/13 for pictorial, graphic and sculptural works). One may infer that these provisions ... are designed to reassure photographers and other visual artists that their works will not be vulnerable to enforced 'orphanage.''

Judging from the response so far, I'd say they're not reassured.

"They are also charged with attempting to defeat the ends of justice"

"Five men have appeared in court accused of demanding £4.25m for the safe return of a Leonardo da Vinci painting. The Madonna with the Yarnwinder was taken from Drumlanrig Castle ... in August 2003. Its disappearance from the stately home became Britain's biggest art theft; an international hunt for the painting followed and it appeared on the FBI's top 10 most wanted pieces of stolen art." Story here.

Friday, September 05, 2008

More on the Sotheby's-Minor Suit

The New York Times has more today on the dispute between Sotheby's and Cnet founder Halsey Minor, which I mentioned earlier this week.

I've also heard directly from Minor, who gave me permission to print the following email:

"Sotheby’s is spending all their time talking about what I said at this time or at that time or why I didn’t have the money, etc, etc. Why would they or anyone care? It’s just a lot of noise that is irrelevant. The only actual fact is they did not get the money.

"They of course know I have the capacity to pay but they want to focus on everything except my one simple question. Did they have an economic interest in the painting they were showing me privately and touting, or did they not? Who knows, I still may have paid $9.6 mm for the painting, but at least I would have been able to take their scholarship/marketing in context and with a grain of salt.

"When a broker shows you a home and sells you on its merits and you find out later the broker owned the home, the law has been broken and the process has been tainted. I am going to bet that when they have to finally cough up the documents and stop spouting nonsense they will have served in the dual role of auctioneer and secret undisclosed owner. And all else will have been long forgotten.

"Sometimes companies need to learn that disclosure and honesty is better in the long term than fighting and disparaging."

Thursday, September 04, 2008


From Artnet News: " The Museum of Contemporary Art, Chicago is hosting an event with the Art Dealers Association of America, Sept. 8, 2008, 6-8 pm, designed to draw public attention and support to the 'Artist Museum Partnership Act,' which is currently languishing in Congress. .... The event marks the kick-off of ADAA’s '50 Artists for 50 States' campaign, for which the organization is attempting to arrange donations of works from artists to institutions in all 50 states, as a way to show the public benefits of the proposed law, which would allow artists to write off the 'fair market value' of works when donating them to nonprofits."

I posted some thoughts on the plan earlier this summer here.

Minor Dispute

Bloomberg reports that Sotheby's is suing Cnet founder Halsey Minor in the Southern District of New York for failing to pay $16.8 million for the purchase of three works of art, including the "Peaceable Kingdom" recently sold by Ralph Esmerian.

Minor "said in an interview today that he refused to pay ... for 'Peaceable Kingdom' after discovering that Sotheby's hadn't disclosed that it had an interest in the work."

Sotheby's counters that "[o]ver the last several weeks Mr. Minor told us the sole reason he hadn't paid was because he was owed money by others, so this contention about non-disclosure is not credible. That the Hicks was loan collateral was widely reported.''

Wednesday, September 03, 2008

Duluth Deaccessioning

Responding to my post yesterday connecting Nigel Warburton's thoughts on Scotland's Titian problem to various recent U.S. deacessioning controversies, Derek Fincham points out that "the difference in Scotland and the UK is the process is somewhat more regulated. If a work is slated for export outside of the UK, important 'Waverley' level works are temporarily delayed so funds can be raised. Perhaps a similar idea could work in the United States, though that idea is anathema to the ethos of many American cultural institutions which are often eager to acquire works to build collections."

He also identifies the next case on the deaccession docket: the City of Duluth is considering selling an antique Tiffany window located in a downtown railroad depot to help fill the city's budget deficit. The window is said to be worth between $1 million and $3 million. Derek wonders "what differences there might be between the city of Dulth's potential decision to sell the window, and the University of Iowa's potential decision to sell its Pollock." His advice: "I'd recommend to Duluth, that if it is considering selling the window, it give civic groups and interested parties an opportunity to raise funds to keep the window in Duluth (as the Waverley criteria accomplish in the UK), or try to work out a sharing agreement to allow the window to be viewed by its citizens. If so, then it seems like a good idea to allow the city to continue its day-to-day operations in exchange for auctioning off the window."

Phish Food

The Guardian reports:

"A convict on death row in America has agreed to let his body be made into a work of art if his final appeal against execution fails. Gene Hathorn, who has been on death row since 1985, has given his consent for artist Marco Evaristti, the bad boy of the Danish art scene, to use his body as an art installation. 'My aim is to first deep freeze Gene's body and then make fish food out of it. Visitors to my exhibition will be able to feed goldfish with it,' Evaristti told the Art Newspaper."

Lawprof Ann Althouse: "Oh, bullshit. How is this different from scattering ashes on... wherever... a beach volleyball court in China?"

It's supposed to say something about capital punishment, but Althouse says: "The artist imagines that the work will somehow make an argument against capital punishment. I make my living trying to fathom legal arguments, and I don't see it at all."

Tuesday, September 02, 2008

"The lawsuits definitely impacted our enrollment because of the uncertainty they brought"

From the AP: "Lawsuits that challenged Randolph College's decisions to go coed and to sell valuable artwork have been resolved, but they apparently are having a lingering effect. The school's enrollment this fall is the lowest in about four decades, and officials say that's because prospective students were confused about the school's future."

The story adds that, since "opponents of the art sale withdrew their case in March, ... [t]he school has sold one painting, Rufino Tamayo's 'Trovador' ... for $7.2 million, and [Randolph president John] Klein said it will sell the other three when the market is right."

"Has any museum or gallery ever been placed in such an appalling predicament?"

The Times Online: "Not only has John Leighton, director-general of the National Galleries of Scotland, got to find £50 million in only four months for Diana & Actaeon, one of Titian's masterpieces, but he has to find another £50 million in four years to buy its pendant, Diana & Callisto. If not, they and some 20 other pictures in the Duke of Sutherland's collection, undoubtedly the finest Old Masters in private hands, may be lost to Scotland."

Virtual Philosopher Nigel Warburton: "Should the State pay £100 million (which is a bargain by current market standards) to stop two great Titians being sold overseas? ... The paintings' removal will be a great loss for many. Yet £100 million is a large enough sum to save or at least substantially improve many lives if it were invested in health care or in good social housing, or to stimulate contemporary artists if it were used to found an arts centre. Great paintings have become so expensive to acquire that this question is coming up every few years: when resources are scarce, could we justify State expenditure at this sort of level on paintings?"

Ophelia Benson comments: "Another point is that it's not a choice between the Titians and the social goods - it's a choice between location of the Titians and the social goods - at least, it is if the Titians are destined for another museum or other public place. ... If the Titians will be sold to private collectors, that's the loss of a general public good, not just a UK or Scottish public good. If they will be sold to another museum, that just means it will be easier for some people to see them and more difficult for others; they'll be recirculated rather than removed" (my emphasis).

And Warburton agrees: "And even if the paintings go into a private collection, many private collectors are sufficiently philanthropic (or else recognise that public display in major collections increases the worth of the paintings) to lend them to national museums and travelling exhibitions. So even in a private collector's hands, they might be available to many people."

I think this latter point applies just as well to the various deacessioning controversies that have come up over the last few years. So, for example, to oppose the deal between Fisk University and Alice Walton's Crystal Bridges Museum on "anti-deaccessioning" grounds just means that you would prefer that Fisk suffer whatever consequences follow from its inability to consummate the proposed sale (elimination of various athletic programs, faculty layoffs, etc.) than that the works at issue be relocated
(and, in that case, for only half the time, and probably to a venue which would allow even more people to see them).