Thursday, January 27, 2011

Will estate tax changes discourage charitable bequests?

The Art Newspaper's Martha Lufkin examines the question.

Wednesday, January 26, 2011

Tell me again about the "public trust" (New York Times edition)

The New York Times notices that hey, maybe museums don't hold their works in trust for the public after all. They can -- and do -- sell them all the time.

The story begins by cataloging a bunch of recent sales:

"On Thursday at Sotheby’s in New York, the Cleveland Museum of Art is putting 32 old-master paintings up for auction, and the J. Paul Getty Museum is offering 15. In the meantime the Pennsylvania Museum of Fine Arts and the Carnegie Museum of Art are selling five paintings each, and the Art Institute of Chicago is selling two Picassos, a Matisse and a Braque at Christie’s in London. Last week the New Jersey Historical Society sold 17 items at Christie’s in New York."

It then trots out a number of museum directors to tell us it's No Big Deal.

David Franklin, the director of the Cleveland Museum, says deaccessioning is "a normal act," and to be "encouraged."

Met director Thomas Campbell says "deaccessioning is a healthy part of the management of any museum collection."

MoMA director Glen Lowry says theirs is "an evolving collection."

We end with another quote from Cleveland's Franklin, who says deaccessioning is "kind of a Humane Society. ... Maybe some of these works can be loved by someone else."

Hmmm. It feels like something is missing from the story, however.

Where are the quotes from representatives of the AAMD informing us that once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations.

Where are the worries that somebody will say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow? (In fact, we are told that MoMA will "refus[e] any gift that prohibits a possible future sale"!)

Why don't we hear from Assemblyman Brodsky and his concerns about a "massive transfer of art held in the public trust into private hands"?

It's all very strange.

Look, either works are held by museums in the public trust, or they're not.

Sales will either cause donors not to give any more, or they won't.

But you can't say, in one breath, that sales are normal, healthy, etc. (when the proceeds are used to buy art) and then, in the next breath, scream that sales of the very same works are unethical, repulsive, Stalinist (when the proceeds are used for any other purpose).

If it's okay (or more than okay: healthy, normal, to be encouraged) for the Art Institute of Chicago to sell those Picassos, Matisses, and Braques in order to buy yet more art, then it's got be okay to sell the same works for other worthy purposes, right? Right?

Tuesday, January 25, 2011

"Don’t let these treasures become assets to a bank trying to recoup its losses on an unpaid debt."

Paddy Johnson notes that the Jersey City Museum remains closed. She puts out a call for "Jersey City’s Eli Broad," a "wealthy benefactor out there willing to donate $600,000 to save an entire institution."

That sure would be nice. But, failing that, where else might they come up with $600,000?

Hmmm. I just can't think of anything. I guess a "collection that not only contains art works by some of the city’s leading contemporary artists, but works dating back more than a century" will have to remain shuttered (or, possibly, as Paddy points out, used to pay the museum's debts).

If only there were some way to keep from closing.

Monday, January 24, 2011

File Under "It's Only Wrong When Brandeis Does It"

The New York Times had a story this morning on how, with "government subsidies ... falling and corporate donations ... dwindl[ing] as the economic crisis spreads," European museums are "seek[ing] new revenue sources."

That includes the following:

"Museums are also raising money by sending masterworks on global tours. World-class institutions like the Louvre and the Metropolitan Museum in New York used to swap paintings at no cost but now charge fees and prospect more aggressively for alliances with foreign museums. Some French institutions have sent out traveling exhibitions, essentially renting entire shows to eager regional museums in the United States and Asia .... The Pompidou Center, which earned $1.9 million from traveling exhibitions last year, hopes to double that in 2012. The Musée d’Orsay sent Impressionist works on a three-year tour to San Francisco, Madrid and Nashville (where the tour is now), a trip it expects to yield more than $13 million."

So can we please have a stop to the hand-wringing about the Rose Museum's plans to do this? Is that too much to ask?

I also got a chuckle out of this:

"'There is a risk,' [the director of the French research institution Option Culture] said, 'that one day state authorities will say to museums, We are cutting your subsidies because you can rent your artworks or you can even can sell your artworks' to raise additional revenue."

In other words: we can't exploit this legitimate source of revenue, because then people will stop giving us more money. You sometimes see similar arguments against deaccessioning in the US: we can't let museums sell work because then rich people will cut back on their giving. You can't make this stuff up.

"Tell them I’m not a bad guy. I’m awful sorry if I caused them any trouble."

The FT's John Gapper has a terrific story on serial forger Mark Landis (mentioned earlier here):

"Landis was clearly disturbed but he was also intelligent and funny, and his story – although bizarre – was plaintively human. By his own account, he had spent nigh on three decades forging and donating paintings as a tribute to his parents. It had become his life’s work and he did not want to stop."

He starts to sound more like an outsider artist than a "forger." How long before a gallery snatches him up?

"That’s one step below attempted murder."

A Chicago artist faces up to 15 years in prison -- for recording his arrest for selling art without a permit. The New York Times story is here. Howard Wasserman says the problem with laws like that "is that they allow government to eliminate the check on misconduct that comes from the public being able to watch/listen to Big Brother and use the recording to document and help prove misconduct." Mark Kleiman says "what seems to be missing here is prosecutorial discretion."

Friday, January 21, 2011

The Gallery Strikes Back

The New York Times reports that the San Francisco gallery that was on the receiving end of a cease-and-desist letter from Jeff Koons for producing and selling “Balloon Dog” bookends has brought a declaratory judgment lawsuit: "'As virtually any clown can attest, no one owns the idea of making a balloon dog, and the shape created by twisting a balloon into a dog-like form is part of the public domain,' the gallery says in its federal complaint. 'Any similarities between the Balloon Dog Bookend compared with the Balloon Dog Structure are driven by the wholly unprotectable idea of depicting the shape of a balloon dog in a solid form.'"

Ed Winkleman has news of another, similar lawsuit.

Thursday, January 20, 2011

Linkage (questions edition)

New Issue of Journal of Art Crime

The Fall 2010 issue of ARCA's Journal of Art Crime is out. I wrote about the latest (legislative) developments regarding Von Saher v. Norton Simon Museum. An excerpt:

"But here, the Ninth Circuit, on hazy 'foreign affairs powers' grounds, essentially ruled that it was improper for the legislature to have singled out Nazi-looted art cases for special treatment. The legislature’s response, with AB 2765, was to pass a statute treating all stolen art claims (at least against certain classes of defendants) the same. I fail to see any great injustice in that."

"There is also a ... Girolamo di Benvenuto Nativity that was once (1966) considered important enough to rate a museum publication."

Another museum sale that will not cause somebody to say, "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"

Don't be so touchy. Collections aren't meant to be static.

"Simply irrational"

Cristina del Rivero reacts to the BBC article I mentioned earlier in the week:

"The fear among the 'anti-deaccessioning police' that without a blanket prohibition against deaccessioning museums will sell-off vast amounts of their collections is simply irrational. There is absolutely no reason why oversight, transparency and certain, limited restrictions cannot ensure that deaccessioning is carried out ethically and with the best interests of the collection, the museum and the public in mind."

Monday, January 17, 2011

"Thus, the adversaries — the multinational corporation and the street artist — become business partners. Long live capitalism!"

The LA Times editorial board on the Fairey-AP settlement.

"In other words, to bankroll today's curatorial spending sprees, PAFA sold historic works ..."

". . . that its own curators had previously valued enough to include in special exhibitions (and probably also in the museum's permanent-collection displays)."

From Lee Rosenbaum, the only member of the deaccession police who takes the notion of the public trust seriously.

Sunday, January 16, 2011

Tell me again about the "public trust" (a continuing series)

The Cleveland Museum of Art is selling "more than two dozen European old master paintings in the largest sell-off from its collection in more than a half-century."

Sergio Muñoz Sarmiento predicts that "the anti-deaccessioning police will be all over this," but I tend to doubt it. As long as the museum claims (as Cleveland does here) that the sales proceeds will be used to buy more art, they will remain quiet.

They will forget that once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations.

They won't worry that potential donors will say, "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"

No, they won't say a word. But sell those same two dozen works -- or even any one of them -- and use the proceeds to, say, keep from going bankrupt, and you're looking at front page stories in the New York Times, non-stop hand wringing from the usual hand-wringers, calls for sanctions, calls for legislation, and on and on.

Friday, January 14, 2011

"Reading between the lines of the announcement, the settlement appears to be a near-complete win for the AP and its lawyers at Kirkland & Ellis."

More on the AP-Fairey settlement, from the Alison Frankel of The American Lawyer: "Under the terms of the deal, Fairey has agreed not to use another AP photo without obtaining a license, and to share rights with the AP going forward to merchandise bearing the Hope image. Fairey also agreed to 'additional financial terms that will remain confidential.'"

Apparently, what remains of the case are the AP's claims against a clothing company that licensed the image from Fairey. Those claims are set to go to trial in March.

Wednesday, January 12, 2011

"In his letter, Mr. Bain argues that Mr. Bronson holds copyright in the work owned by the National Gallery ..."

". . . and, as such, 'has the exclusive right to display the work.'"

The Toronto Globe and Mail reports that "Canadian artist AA Bronson has brought a lawyer into his dispute with the National Portrait Gallery in Washington, D.C. over the gallery’s refusal to return to Canada one of his works currently in a controversial exhibition there." (This has to do with the Smithsonian "Hide/Seek" dispute. I mentioned Bronson's removal request here.)

Is it possible he's asserting a Costco claim?

Everybody Needs a Hobby (UPDATED)

The NYT's Randy Kennedy has a great story today about a guy who's been going around donating fake works to museums:

"Unlike most forgers, he does not seem to be in it for the money, but for a kind of satisfaction at seeing his works accepted as authentic. He takes nothing more in return for them than an occasional lunch or a few tchotchkes from the gift shop. He turns down tax write-off forms, and it’s unclear whether he has broken any laws. But his activities have nonetheless cost museums, which have had to pay for analysis of the works, for research to figure out if more of his fakes are hiding in their collections and for legal advice."

At the moment, he seems to have disappeared:

"Robert K. Wittman, a former F.B.I. agent who ran the agency’s art-crime team, said that he has been working informally on behalf of several museums Mr. Landis visited to gather more information about his actions, with the aim of determining whether a legal case could be built against him for theft of goods and services. But Mr. Wittman has been unable to find him."

The last word is given to the director of the Hilliard University Art Museum: "I really doubt that there’s going to be any will or funding to pursue action against him, which is kind of sad. That’s just the reality. So our job now is to make sure that every museum out there knows what he looks like and what he’s up to."

UPDATE: Derek Fincham liked the story too, and says "the lesson is clear": "we can certainly blame the forger/donor, but provenance and the history of an object must be checked, even when an object is donated."

Tuesday, January 11, 2011

"In return, the city agreed to stand behind the museum’s debt."

The NYT's Kate Taylor reports that the Asian Art Museum of San Francisco "has been saved from likely bankruptcy." The San Francisco Chronicle says the deal "makes the city liable for the museum's nearly $100 million in debt."

Should we worry about moral hazard?

"These ludicrous creatures have strong claim to being the most ridiculous asset class in the world, ..."

". . . no one should ever invest in them, and they invariably fail."

Felix Salmon is not a fan of art funds.

"Some critics regard this type of art as purely criminal vandalism."

The LA Times on Taschen's "Trespass: A History of Uncommissioned Urban Art."

"It was unclear how a dismissal of claims between Fairey and the AP would affect legal fair use arguments" (UPDATED)

Breaking news in the Shepard Fairey-AP lawsuit. Hard to tell from the news reports exactly what's going on, but seems that at least some of the claims are being settled.

UPDATE: More from Randy Kennedy in the New York Times, the LA Times, NPR, and the Wall Street Journal.

Monday, January 10, 2011

Tell me again about the "public trust" (a continuing series)

Judith Dobrzynski has news of two more museums selling work, including the planned sale by the Art Institute of Chicago of a Braque, two Picassos, and a Matisse at Christie's next month. The combined high estimates come to about $15.5 million.

Here are two things we know about those five works:

1. Having fallen under the aegis of a museum, they were held in the public trust, to be accessible to present and future generations . . . or at least until February. After that: not so much. Sorry present and future generations! Don't be so touchy about it.

2. Their sale will certainly NOT send a terrible message to potential donors. Nobody will say: "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"

It's almost as if this whole "public trust" business is a bunch of b.s.

Friday, January 07, 2011

As if on cue . . .

The Philadelphia Inquirer's Stephan Salisbury reports this morning that the Pennsylvania Academy of the Fine Arts has sold five works and plans to sell five more.

The five already sold are: Autumn Still Life by William Merritt Chase; Looking Over Frenchman's Bay at Green Mountain (1896) by Childe Hassam; Flowers (1893) by John H. Twachtman; Bathers in a Cove (1916) by Maurice Prendergast; and Great White Herons (1933) by Frank Weston Benson.

Hey, wait a minute! Weren't we just told that this is a terrible message to potential donors. Why wouldn't somebody say, "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"

Besides, separate and apart from any impact on future donations, those works were held in the public trust, to be accessible to present and future generations. How DARE the museum sell them? It's an outrage, I tell you.

Or is it?

Janet Landay, executive director of the AAMD, says: "It's a normal part of building a collection. It shouldn't be such a touchy subject."

Yes, stop being so touchy. It's totally normal for museums to sell work. Who said anything about sending negative messages to potential donors?

Who ever said the works were held in the public trust to be accessible to present and future generations?

Where did you ever get such crazy ideas? Selling work is a totally normal non-touchy thing to do. Why is that so difficult for you to understand, Mr. Touchy?

David Brigham, president and chief executive of the Pennsylvania Academy, goes so far as to say "it's a positive story." "Collections aren't static," he said. "They aren't meant to be static."

No, they're not.

Thursday, January 06, 2011

"It does no good to conserve an individual object if you put it back into the very environment that caused it to deteriorate in the first place."

NPR has a story on the recent deaccessioning at the Philadelphia History Museum. The New York Times ran a similar story last month.

I always love this move: "Russell Lewis, chief historian at the Chicago History Museum, says his institution tries to avoid deaccessioning because of the message it can send to potential donors. ... 'Why wouldn't somebody say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?'"

But, on the strict anti-deaccessionist view, what guarantee does anyone ever have that work they donated won't be sold? Museums sell work constantly, and use the proceeds to buy more art. Why wouldn't somebody say, "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"

Somehow sales to buy more art, no matter how routine, don't seem to discourage future donations. Sales for any other reason, however, send potential donors running for the hills.

Thanks to Mark Gold for the pointer.

Wednesday, January 05, 2011

I wonder what a large ad hoc committee would have looked like

Judith Dobrzynski reports that the promised small ad hoc committee of museum leaders has been established by the New York Board of Regents to help it produce an updated set of deaccessioning regulations. There are 16 members.

Monday, January 03, 2011

"The group is hanging its admittedly slim hopes on a court challenge that West Chester Attorney Samuel Stretton said he would file within a week."

The Friends of the Barnes fight on:

"Stretton said he will ask that the original case be reopened, arguing that then-State Attorney General and now-Federal Judge Michael Fisher was too supportive of the coalition of individuals and groups that pressed for the Barnes to be moved to Philadelphia.

"As Attorney General, it was Fisher's job to represent the interests of the state's citizens, not one side or the other in the dispute, Stretton said.

"Stretton said he questioned Fisher's actions after seeing him interviewed in the 2009 documentary, The Art of the Steal, which offered a critical view of the machinations that ultimately led to the planned move of the Barnes.

"It is not the first time the Attorney General's role in the case has been challenged.

"In 2004, Montgomery County Orphans' Court Judge Stanley Ott issued a blistering critique of the Attorney General's position, making same point as Stretton.

"In response to Ott's criticism, Sean Connolly, spokesman for the Attorney General's Office, agreed that 'the attorney general represents the public, not one side or another in charitable matters.'

"'In this case,' he said, 'we supported the petition because, in our view, it was in the best interest of the public.'

"Despite his unhappiness with the Attorney General's office, Ott ultimately approved the plan to move the Barnes, which would not seem to bode well for Stretton's attempt to raise the issue now.

"In his ruling, Ott acknowledged that Barnes' will stipulated that his collection never be moved, but determined nonetheless that the Barnes Foundation was in financial trouble and the move to Philadelphia was in the best interest of the collection."

Estate Tax Changes

Welcome back, and Happy New Year everybody! To kick things off, I thought I'd share an advisory we sent to our clients regarding the tax legislation passed by Congress just before the holidays:

The just-enacted Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the “Act”) favorably addresses uncertainties lingering in our federal estate, gift and generation-skipping transfer tax regimes since 2001. Absent Congressional intervention, the Act expires at the end of 2012. In the interim, however, the Act may produce planning opportunities for certain individuals.

Here is a summary of the most significant changes to the federal gift, estate and generation-skipping taxes for 2011 and 2012:
  • The rate for the estate, gift and generation skipping transfer taxes is 35%.
  • The estate and gift tax regimes are “reunified,” with a combined tax-free allowance of $5 million ($10 million for a married couple). This means that there will be an increase from $1 million to $5 million in the tax-free amount for lifetime gifts. This will create enhanced planning opportunities in states such as New York which have no gift tax.
  • The Act affords “portability” of a deceased spouse’s unused tax-free amount to the surviving spouse. If a spouse does not use some or all of his or her tax-free amount of $5 million, the surviving spouse may use the remainder, ensuring that $10 million per couple will be exempt from the unified gift and estate tax during the period covered by the Act.
  • The generation-skipping transfer tax exemption is also set at $5 million.
  • The $5 million tax-free amounts will be indexed for inflation after 2011.

The Tax Act resolves uncertainties in the federal gift, estate and generation-skipping tax regimes in effect in 2010 as follows:

  • The estate tax for 2010 decedents is restored, with a tax-free amount of $5 million and a 35% tax rate. Importantly, however, 2010 estates may elect out of the estate tax regime entirely and into an income tax regime of modified “carryover” basis.
  • The generation-skipping transfer tax administrative rules are applicable to 2010 generation-skipping transfers, but no GST tax is payable on 2010 transfers.
  • The lifetime gift tax exemption remains $1 million in 2010, with a 35% tax rate for gifts in excess of that amount.

Lastly, for those concerned about changes to the law for grantor retained annuity trusts (“GRATs”), we can report that the Tax Act left this valuable estate planning strategy unscathed.