Wednesday, September 29, 2010

We Demand You Not Close the Museum You Are Not Closing

Two new exhibits open at the Rose next week. Of course the Rose is not a real museum because Brandeis once considered selling some of its work and now they are exploring loaning out some of the collection for profit. When you do that, you are no longer a museum. Right?


Monday, September 27, 2010

Not So Much

Lee Rosenbaum frets that New York's adoption of UPMIFA encourages "disregard of donor intent," but as the folks at Nixon Peabody point out, "New York's statute is more donor-favorable than perhaps any in the nation, with special notice requirements on court-ordered and other modifications of restrictions, and donor consent to the release or modification of certain restrictions contained in a gift instrument. Charities are advised to be aware of this new, expanded role for donors in the life of their institutions" (my emphases).

Inside Job?

NYT: "Egypt’s minister of the interior told the official MENA news agency that a museum employee was most likely responsible for the theft of a valuable van Gogh painting from a museum in Giza last month."

Derek Fincham: "This may explain why there was such a strong reaction to the arrest and a crack down on the museum's own staff and security personnel, or it may be an attempt to find a scapegoat."

Protect Yourself

New York Times "Wealth Matters" columnist Paul Sullivan had a piece on buying art this weekend. It's mostly common sense stuff (it's "not always the case" that art increases in value), but Aris title insurance makes an appearance. Sullivan says they charge a "one-time premium" ranging "from 1 to 5 percent of the value," then adds:

"The reality, though, is that title insurance is still not broadly accepted. 'It hasn’t been purchased on a widespread basis,' said Paul Funk, executive managing director at Frank Crystal & Company, an insurance brokerage."

More on Aris here, here, and here.

Wednesday, September 22, 2010

On loopholes

I wanted to address a point Assemblyman Brodsky made to Lee Rosenbaum regarding the expiration of the Board of Regents' "emergency" rules on deaccessioning:

"Another loophole, Brodsky asserted to me after he read this post, is that the old regs (under Paragraph 6-ii) did permit the use sale proceeds for operating expenses, if the institution first changed its corporate purpose so as not to include collecting the type of material to be sold."

He says "this had been cured" in the now expiring amendment to the regulations.

First of all: really? This is what we're worried about now? That museums are going to play games with their corporate purposes so they can dump their collections? Those devious museums, you never know what they'll do in their relentless drive to rid themselves of their art.

But second, I don't see the loophole at all. Take a look at the existing rules. The part about the corporate purpose is in Paragraph 6(ii). But look at Paragraph 6(vi). It says the institution shall "ensure that proceeds derived from the deaccessioning of any property from the institution's collection be restricted in a separate fund" and "in no event shall proceeds derived from the deaccessioning of any property from the collection be used for operating expenses." That's true no matter what your corporate purpose is. So where's the loophole?

Rose News

Geoff Edgers reports that "Brandeis University is launching a search for a new director at the Rose Art Museum, the latest step in an effort to move on from last year’s controversy over the campus museum."

He also says "Rose boosters" who are suing the university are "not impressed." One of them is quoted as objecting to the fact that Brandeis University's search committee for Brandeis University's art museum is made up of Brandeis University employees. Go figure.

Monday, September 20, 2010

Can you copyright the West Coast Offense?

Sergio Muñoz Sarmiento: "This is probably the smartest article I have read recently on copyright and creativity."

"However, the act does not appear to forbid building a garage that would block the mural from view"

An endangered mural in Portsmouth.

"Picasso shrugged: 'I often paint fakes'"

A koan about creativity, courtesy of Gretchen Rubin.

"Is there anyone out there who is involved with the nonprofit community that is awake!" (UPDATED)

The Planned Giving Blog reports that Gov. Patterson has signed UPMIFA into law in NY. For background, start here.

UPDATE: My friends at Simpson Thacher are wide awake. Everything you could possibly want to know about the new law is here.

"The Attorney General would like to correct that apparent miscommunication"

The Tennessee General has filed a Motion to Clarify the Court's latest ruling in the Fisk case. You can read the motion here. The subtext is: "Excuse me, Your Honor, am I crazy or did you just change your mind completely?"

As I explained last week, Judge Lyle ruled last month that, since O'Keeffe's intent in making the gift was to make the collection available to the people of Nashville and the South, the interests of Fisk were irrelevant, and she therefore invited the Attorney General to come up with a plan to keep the collection in Nashville.

She's now rejected that plan, ostensibly because it wasn't "permanent" enough (it provided for the works to go to Nashville's Frist Center for the Visual Arts, but left open the possibility of their return to Fisk in the event it some day gets its financial house in order), but it was clear from the opinion that the real reason for the decision was that she had changed her mind about the relevance of Fisk's interests: "It would not be in keeping ... with the donor's intent," she wrote, "to keep the Collection in Nashville at the cost of sacrificing the existence of Fisk."

The AG's current motion argues against the stated reason for the decision:

"The Court in its ruling earlier this week rejected the Attorney General's proposal as a 'short-term solution' and a 'temporary fix.' The Attorney General would like to correct that apparent miscommunication. There is nothing 'short-term' or 'temporary' about the plan. It provides an appropriately funded and structured mechanism to support the full-time display and maintenance of the Stieglitz Collection in Nashville into the indefinite future. The only 'temporary' element of the arrangement is the appropriate suggestion that Fisk University should be able to resume custody and display of the art when it has the financial ability to do so. This does not make the proposal a temporary fix; rather, it recognizes Fisk's historic connection with the art and allows the proposal to adhere even more closely to Ms. O'Keeffe's charitable intent."

(Lee Rosenbaum made a similar argument last week: "To my mind, the flaw in the court's logic is that the AG's plan WOULD keep the collection in Nashville full-time. The only thing temporary about the arrangement would be the artworks' sojourn at the Frist, which would display and maintain the collection until Fisk could resume custodianship.")

But, again, the real issue is that somewhere in between the decision asking the AG to submit his Nashville-only plan and the decision rejecting that plan, Judge Lyle seems to have become convinced that the interests of Fisk do matter. Once you grant that, then the AG's proposal -- which runs the risk of "sacrificing the existence of Fisk University" -- isn't going to be good enough, whether or not you see it as "temporary."

Thursday, September 16, 2010

More Deaccession Confusion

AAM president Ford Bell is under the mistaken impression that the NY Board of Regents has decided to "permit museums to sell objects in their collections to cover operating costs."

As I explained yesterday, that's not true at all. The existing Board of Regents regulations (which will continue to govern after the emergency regulations expire) provide:

"In no event shall proceeds derived from the deaccessioning of any property from the collection be used for operating expenses or for any purposes other than the acquisition, preservation, protection or care of collections."

That happens to be exactly the same as the AAM's position on deaccessioning. Bell needn't be alarmed.

Lee Rosenbaum accepts her share of blame for sowing confusion about this.

Wednesday, September 15, 2010


I had a chance to read Judge Lyle's decision rejecting the AG's plan for the Fisk art, and what it comes down to is she seems to have remembered that the gift to Fisk may have been intended to benefit Fisk.

Recall that, in her prior decision, she said the Court of Appeals "made no finding of a dual intention by Mrs. O'Keeffe that includes perpetuating the existence of Fisk." Her intent was solely to "enable the public -- in Nashville and the South -- to have the opportunity to study the Collection in order to promote the general study of art."

As I said at the time, this made no sense: "In other words, the intent behind the gift to Fisk was not to benefit Fisk; it was simply -- and only -- to make the Collection available to the public in Nashville and the (true) South."

Judge Lyle now seems to agree. The new decision says "one could argue that by saying the donor's intent was to enable Nashville to have access to the Collection, the Court of Appeals implicitly ruled that was the donor's exclusive intention. By not mentioning Fisk, the Court of Appeals' decision could be read to imply that Fisk, the institution, should not be considered in a plan for the Collection. The Court rejects that argument." She notes that the Collection was placed "deliberate[ly]" with Fisk: O'Keeffe's "connection to Nashville" was Fisk. "It would not be in keeping, then, with the donor's intent to keep the Collection in Nashville at the cost of sacrificing the existence of Fisk University." When O'Keeffe made her gift, "Fisk was not on the brink of closing." "Having the Collection in Nashville only half of the time and reducing Fisk's ownership to a half is not a perfect solution but it does keep Fisk afloat, thereby maintaining and holding true to the law's recognition of the donor's deliberate selection of Fisk for the art."


I think there was a lot of confusion out there today about the news that the New York State Board of Regents is going to let its "emergency" deaccessioning regulations expire. The New York Times headline was "Board of Regents Ending Injunction Against Museums' Art Sales." It called the move a "surprise development in the battle over whether museums should be allowed to sell art to cover operating costs." The Wall Street Journal's headline was "Museums Can Sell Off Art Again" and its lead was: "The state will allow emergency regulations that prohibited cash-strapped museums from selling their artworks to cover expenses to expire" -- clearly implying that now cash-strapped museums can sell art "to cover expenses." reported that the Regents made the "surprise decision" to let the rules "prohibiting the practice" of "sell[ing] art to cover operating expenses" -- "long considered sacrosanct" -- expire. And Assemblyman Brodsky -- of the defunct Brodsky Bill -- was quoted as saying "this is the precursor of the massive transfer of art held in the public trust into private hands."

I think they have it all wrong. The expiration of the emergency regulations just means that we go back to the existing, non-emergency regulations, which also prohibit the sale of art to cover operating expenses. The existing rules -- which apply to all museums chartered after 1889 -- essentially make the AAMD/AAM deaccessioning rules the law of New York State. The emergency regulations were even stricter, but if you're okay with the AAMD rule, you should be fine with the current regulations. Museums still won't be able to use sales proceeds for operating expenses. The Deaccession Police can rest easy.

They Found the Missing Corot

"Then, on Sunday, the artwork suddenly materialized — under the arm of a Fifth Avenue doorman, who took it to a police station house on the Upper East Side."

Tuesday, September 14, 2010

Hilarious (UPDATED)

The Judge has rejected the Attorney General's plan for the Fisk artworks: "The best the attorney general has been able to do is to propose a short-term solution. A temporary fix, however, is insufficient, the court concludes. The parties have been in court long enough. Finality and certainty is needed."


Remember: in her ruling last month, Judge Lyle asked the AG to propose "a sharing arrangement in Nashville or ... an institution in Nashville capable and willing to permanently house and maintain the Collection to replace Fisk." He seemed to have done that: the work would stay in Nashville, at the Frist Center for the Visual Arts . But, in an apparent effort to be fair to Fisk, he included a proviso that, if Fisk manages to fix its financial situation, they could have the works back. But now it seems that that proviso ruined the proposal by making it insufficiently final! (So why not just drop the proviso and say the works go to the Frist Center -- finally and permanently?)

In any case, it seems it's back to the Crystal Bridges deal . . . and a little joy in Fiskville.

UPDATE: Judge Lyle's latest decision is here. Haven't had a chance to read it myself, but will try to soon.

A couple more notes on Fisk and donor intent

Two additional points on the situation at Fisk:

1. Keep in mind that when we talk about O'Keeffe's intent here, we're all really just guessing. O'Keeffe did not say -- though she certainly could have -- what she wanted to see happen to the collection in the event Fisk could no longer properly care for it. So we have in front of us two options --

A. The works go to the Frist Center in Nashville on a year-round basis (but with the potential to come back to Fisk if their financial fortunes turn around);


B. The works are shared with Crystal Bridges Museum in Arkansas, so that they remain at Fisk half the time --

and I don't know how we would even begin to figure out which one is "closer" to O'Keeffe's intent. How do we make that determination? One has the works staying with Fisk half the time -- so maybe we score that a 50% on the Intent Scale. The other has the works leaving Fisk . . . but with the possibility that they will come back some time in the future. What kind of Intent Scale score does that get? I suppose it depends, in part, on how likely we think it is that the works will actually come back. But again, this whole idea of deciding which of the two alternatives is "closer" to O'Keeffe's original intent just seems like an impossible task to me (and I've deliberately left to the side the fact that one of the two alternatives is worth $30 million to Fisk and the other is worth nothing).

2. Though we can't be sure what O'Keeffe would have wanted, there is a kind of "successor" to O'Keeffe that is still around today: the Georgia O'Keeffe Museum. Before the Frist proposal ... before the Crystal Bridges deal ... the O'Keeffe Museum had struck a deal with Fisk that would have allowed Fisk to sell one (or, depending on how you look at it, two) of the works in the collection but hold onto the other 99. (The court rejected the deal, three years ago now -- on the grounds that the Crystal Bridges offer was better (!) -- and then the O'Keeffe Museum was pushed out of the case on standing grounds. Where's Argott when you need him?) But, as I said at the time:

"If this really is a matter of donor intent, then why couldn't the museum agree to waive this or that condition of the gift? I mean, if O'Keeffe were alive, and she had worked out a deal with Fisk like the one the museum, as her successor, worked out in the fall -- what sense would it make to say that deal was contrary to O'Keeffe's intent? She's the one making the deal. And if that's right, why should it be any different for the O'Keeffe Museum as her successor?"

Isn't that deal between Fisk and the O'Keeffe Museum (the entity whose purpose in life is to perpetuate her artistic legacy) "closer" to O'Keeffe's intent than either the Frist or Crystal Bridges alternatives?

Is it too late to go back to that option? We all want to make sure the donor's intent is honored to the greatest extent possible, don't we?

Monday, September 13, 2010

Maybe someone can make "The Art of the Steal Part 2"

Fisk students held a vigil tonight in protest of the Tennessee Attorney General's plan to transfer the Stieglitz collection to the Frist Center (without any compensation flowing to Fisk).

Fisk President Hazel O’Leary says:

"This proposal was developed without an invitation to or participation by Fisk from the Attorney General, the Frist Center, MDHA, or the Tennessee Arts Commission. This so-called partnership between the Frist Center, the State and the Metropolitan Government is nothing more than the display of raw power in an undisguised attempt to steal this art from its rightful owner. We will use every ounce of our energy to oppose this proposal."

Where's the outrage? At least in the Barnes case the Foundation's own board voted to move the collection (and, of course, the Barnes continues to own the work; it just has a new home). Somehow that added up to theft to a lot of people. But here the work is just being taken from Fisk, against its will, in the name of some imagined "donor intent" (the notion that it more closely approximates O'Keeffe's 60-year old intent that the works go to the Frist Center year-round than be kept at Fisk half the time). I don't get it.

"The ex-con who allegedly lost a $1 million painting in a drunken haze was being sued for $800,000 at the time the artwork went missing"

Latest on the Corot caper, from the NY Post.

"The state of Tennessee and Metropolitan Nashville have decided that the art is more important than Fisk"

"Nashville has a simple choice to make, and that is whether it is better to keep the art in Nashville full time and have Fisk close or keep the art in Nashville half the time and have Fisk survive."

Friday, September 10, 2010

"The Collection should return to the Fisk campus when the University is once again financially able to display and maintain the art"

Today was the deadline for the Tennessee Attorney General to come up with a plan to keep the Steiglitz Collection in Nashville, and come up with such a plan he has:

"Under Cooper's plan, the collection would be displayed under contract at Nashville's Frist Center for the Visual Arts. It would be accessible free of charge every day of the week, and would continue to be called the 'Alfred Stieglitz Collection at Fisk University.' The collection would be returned to the school once it can afford to care for and display the art there."

Press release from the AG's office here.

This of course does nothing (or very little) for Fisk, but, as we all know, benefitting Fisk was not part of O'Keeffe's intent when she gave the Collection to Fisk. She could care less about Fisk! In fact she hated Fisk! What she really cared about was the People of Nashville. If Fisk goes under, hey, stuff happens. Not our problem. Our problem -- as Lovers of Art -- is to see to it that the donor's intent is always satisfied. And obviously in this case O'Keeffe would have preferred that the works be shown at the Frist Center than have Fisk share the Collection with the Crystal Bridges Museum. So this is a Good Day For Art: the works will be leaving Fisk, but instead of going to Museum A, they will be going to Museum B, which is much better. Obviously.

Arrest in Corot Case

The New York Times:

"The case of a portrait by a 19th-century French painter that supposedly disappeared after a night of drinking by the man who had it took another twist on Thursday.

"Thomas A. Doyle was arrested and charged with defrauding an investor in the painting by lying about its cost, according to a criminal complaint filed in Federal District Court in Manhattan.

"Mr. Doyle, who had previously been convicted of art fraud, arranged to buy the painting, 'Portrait of a Girl' by Jean-Baptiste-Camille Corot, from an art gallery in New York for $775,000, but told the investor, who is from Japan, and a broker from Vancouver, British Columbia, that the purchase price was $1.1 million, according to the complaint.

"So the Japanese investor, who was buying an 80 percent stake in the painting, sent him $880,000 for the transaction, which was completed in June, the complaint said. Mr. Doyle also misled the investor and the broker by telling them he had a buyer for the painting lined up to pay $1.7 million, the complaint said. The painting was actually appraised at $500,000 to $700,000, the complaint said, and there was no ready buyer."

The Art Market Monitor notes an oddity in the story.

Jessica Pressler: "Ha, yeah, this con artist has sure painted himself into a corner."

British Artists Protest Possible Cut in Arts Funding

The New York Times: "Britain’s coalition government of Conservatives and Liberal Democrats has proposed a budget that could cut arts spending by as much as 25 percent, as the government seeks to reduce its substantial budget deficit."

Relatedly, Michael Rushton: how do we figure out the right level of public funding for the arts?


Wednesday, September 08, 2010

"If convicted the suspects could face three years in prison"

The AP: "Eleven culture officials from Egypt's government have been formally charged in last month's theft of a Vincent van Gogh painting from a Cairo museum."

Tuesday, September 07, 2010


I mentioned recently William Cohan's piece on regulation and the art market. Felix Salmon thinks the idea of regulating the art market -- through for example the new Consumer Financial Protection Bureau -- is "a dreadful idea." He thinks "the art market is broken," and better not to do anything to disguise that fact. The Art Market Monitor doesn't buy the case for broken-ness: "Works of art are being distributed and re-distributed throughout the world using the fairly efficient method of market pricing."

Friday, September 03, 2010

Rainy day funds

The Seattle Art Museum is seeking court approval to borrow $10 million from its endowment fund. Story here. Judith Dobrzynski is against endowment spending. The museum says it already "has had to reduce staff and curtail hours" and has "very substantial assets that it operates for public benefit, including the Olympic Sculpture Park, which generates no revenue."

"Even if it’s real, who owns that wall, and can I please take a chunk of it away?"

The LRB's Jenny Diski on the difficulties Banksy poses for collectors.

Was it O'Keeffe's intent that the collection be seen be fewer than 7 people a day?

Because, according to the NPR story I linked to yesterday, that's how many visitors it gets.

Drunken Lawsuit Update

The New York Times:

"For those following the strange case of the lost million-dollar painting, here is an update.

"The missing artwork? Still missing.

"The lawsuit filed against the man accused of losing the painting after having had one drink too many? Dropped, but apparently being resurrected.

"The painting’s co-owner whose criminal background as an art thief was unknown to even his own lawyer? A little haggard and unrepentant."

Wednesday, September 01, 2010


"The legislation grew out of cases in which time became a factor in litigation involving art looted by the Nazis"

The NYT's Kate Taylor reports that "California lawmakers gave final approval Monday night to a bill that would extend the time period in which people can sue museums to try to recover what they believe are stolen works of art. A spokesman for Gov. Arnold Schwarzenegger said he had not decided whether to sign the bill."

Background here.