Friday, May 31, 2013

"At what price point do you give up on platitudes about the inviolability of art?"

Ben Davis has an interesting piece on the Detroit situation at ARTINFO.  Though he "of course, find[s] revolting the idea" of selling art, it's miles better than the typical anti-deaccessionist piece because he at least acknowledges that there's another side to the argument:

"But I also understand how, in a city that has been forced to experiment with turning off street lights, righteous rhetoric about DIA's art holdings being a 'public good' might ring a wee bit hollow. Hammering away at fine art’s sanctity while the privatization of the city’s water authority is also 'on the table' seems bound to make pundits seem out of touch."

The usual anti-deaccessionist work, by contrast, begins with a ritual incantation that art is held in the "public trust" and so can't be sold (even though it's sold all the time) and then moves on to the deeply thoughtful view that, because some museum groups have decided it's "unethical" to sell work for some purposes but not others, only a Stalinist would disagree.  Davis at least recognizes there's some complexity to the problem.

Lee Rosenbaum has lots more coverage, including this astonishing quote from the museum's director, Graham Beal:

"[O]ur concern has been not to have [gifts] restricted, so the DIA would be able to deaccession that art to buy different art. We’ve always wanted gifts to be unrestricted. We [will now] have to start inviting donors to put restrictions on gifts."

Hold on a second.  Haven't we been told, over and over again, that the reason museums can't deaccession is that donors won't give if they know their works can be sold?  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 now we find out that donors have always known there is no guarantee the work won't be sold and the museums want it that way.

They hypocrisy is so thick you could cut it with a chainsaw, assuming Detroit can afford a chainsaw.

"In April 2010, Sotheby’s Inc. won a $6.6 million judgment against him in connection with three artworks he bought at auction and later refused to pay for." (UPDATED 2X)

Halsey Minor files for personal bankruptcy.  Some background here.

UPDATE:  "Halsey Minor's Art Addiction Helped Drive Him To Bankruptcy."

UPDATE 2:  "Halsey Minor's Canny Use of Art as an Asset."

"At this point, the city may need the money more than it needs the art."

Walter Russell Mead on Detroit:  "Unfortunately the city is already struggling to keep the lights on. Local businesses recently had to step in to buy the city police cars and ambulances. Meanwhile, Detroit has closed nearly a quarter of the city’s firehouses, and the department’s equipment is beginning to fall apart."

Relatedly, two views of the situation, via Lee Rosenbaum.

Thursday, May 30, 2013

"Although some legal commentators see the case as portending the end of the auction world as we know it, we view the holding as quite narrow, applying only to evidence that is needed if a purchaser is sued by the auctioneer after failing to pay."

Charles and Tom Danziger on the Jenack case and various and sundry other auction-related legal issues.  On Jenack, they side with the Olsoffian minimalist interpretation.

"The Visual Artist’s Rights Act, Copyright and Conceptual Art"

For our Chicago-area readers.

Why do people make anonymous donations?

Tyler Cowen has some thoughts.

"Neither party is commenting on the resolution."

A settlement in the Velvet Underground-Warhol Foundation suit.

"Time and again it has been illustrated that art thieves are more sophisticated in their ability to plan and execute a robbery than they are in figuring out how to dispose of the works"

The Art Market Monitor on the latest example.

"Court finds for artist who disowned work before auction"

In The Art Newspaper, Laura Gilbert reports that Marc Jancou's claim against Cady Noland has been dismissed.  His breach of contract claim against Sotheby's had been previously dismissed (see here) and, since the only claim against Noland was for tortious interference with the same contract, that claim was dismissed too.  Jancou's appeal of the Sotheby's decision is being argued in the Appellate Division June 6.

"For modern art museums, what they’re doing would be largely impossible."

The Rijksmuseum is offering downloads of high-resolution images at no cost.

Saturday, May 25, 2013


The other big news this week was that "Detroit emergency manager Kevyn Orr is considering whether the multibillion-dollar collection at the Detroit Institute of Arts should be considered city assets that potentially could be sold to cover about $15 billion in debt."

You can guess the reaction in the art world, I don't have to bother linking to anything.  But I was amused by this story in today's Times under the headline, "Collection of Detroit Institute of Arts Cannot Be Sold, Its Director Says."

Got that?  Cannot be sold.

Not shouldn't be sold.  Cannot be sold.

Why "can't" it be sold?  Because it's held in the "public trust," of course.  (Tell me again ....)

Now, in fairness to the museum's director, Graham Beal, the quotes attributed to him in the story don't support that headline.  He says:

"We believe that that kind of action — diminishing our collection, the cultural value — would not be in the long-term interest."

That sounds like a "shouldn't" statement, not a "can't" statement, and that's where the conversation has to take place.  If you think selling any of the art is a bad idea, given all of the relevant circumstances, then make the case.  But nobody gets to chant the magic words "public trust" and end the discussion.

The works absolutely can be sold; as we've seen repeatedly, museums sell work all the time (even some museums in Detroit).  The question is whether they should, and what happens -- to the public in whose trust they are held -- if they are not.

UPDATE:  Tell me again about the public trust.

"The artwork Rosales sold appears to be as fake as her story about the clients she claimed to represent."

I was out of town this week, but while I was away, the big news was that federal prosecutors charged Glafira Rosales, who is at the center of the Knoedler mess, with tax fraud.  The New York Times has all the details here.  The criminal complaint is here.  Excellent analysis at Jack Townsend's Federal Tax Crimes blog here.

Wednesday, May 15, 2013

Six of one

Sergio Muñoz Sarmiento responds to my post yesterday on his latest post on Prince-Cariou.

I wasn't really disagreeing with him.  It's hard to say whether things were better or worse pre-Prince.  Sergio says we're left now with a fair use clusterfark, which is true.  But we had a fair use clusterfark before Prince.  You'd need a very finely tuned clusterfark detector to be able to measure the difference.

Tuesday, May 14, 2013

"Since the full price of artworks donated to charity are not tax deductible for the artist, new records are a major incentive for their participation."

Dan Duray on last night's Leonardo DiCaprio-organized charity auction.

Much Better Than The Impractical Advice Panel

"Practical Advice on Handling Legal Issues Confronting the Art World Today":  New York City Bar Association, May 21, 6:00-9:00 pm.

"So although many in the art world and the art law world are championing the latest Second Circuit flop, what they should be asking is how the hell are we supposed to analyze fair use post-Cariou."

Sergio Muñoz Sarmiento is still not happy with the Prince decision:  "This isn’t about chilling speech; it’s about knowing a good thing when you have it. The pre-Cariou test elaborated by Judge Batts simply asked that we question the appropriating artist on what her purpose was in appropriating copyrighted work. Now that that fish has been gutted to the bone, all we art lawyers are left with is uncertainty and guess-work."

I'm not sure we had much more than that pre-Cariou . . .

Monday, May 13, 2013

Detroit is broke

Details here.  Maybe they should try a millage?

"Why Can’t We Take Pictures in Art Museums?" (UPDATED)

Carolina Miranda explores in ARTnews.

UPDATE:  Some thoughts from Sergio Muñoz Sarmiento.

"It is hard to imagine a business more custom-made for money laundering" (UPDATED 3X)

Patricia Cohen has a front-page story in today's New York Times on the increase in art-related money laundering.

The Art Market Monitor says it's "an open secret in the art world."

UPDATE:  Charlotte Burns and Melanie Gerlis have a related story in The Art Newspaper.

UPDATE 2:  Fox Rothschild's Daniel Schnapp:  "One important question is whether an innocent purchaser or seller of laundered art has any right to receive back the work or the funds used in the sale of the work. Certainly a major concern would be if the art is forfeited by the government.   The artwork is then potentially subject to the criminal proceedings against the accused money launderer and a long delay in recovering either the work or the funds may be inevitable."

UPDATE 3:  Asher Edelman comments:  "The article’s focus is that there are no safeguards on money laundering in the art market. However, the Times is mistaken. The art market and its participants are subject to the same money laundering, tax evasion, fraud, and other laws applying to transactions as any other business."

Friday, May 10, 2013

"While of course we're glad that the individual artist, Richard Prince in this case, has had the aesthetic merit of his work validated ..."

". . . it does very little to stop the chilling effect that we're already seeing on any other artist, collector, or museum."

Virginia Rutledge, quoted here.

Are there too many nonprofits?

Slate's Matthew Yglesias:  "Due to the progressive rate structure of the income tax, these tax deductions are very much a way of increasing the social and political clout of the rich and don't seem to inspire a ton of charity in the sense of helping poor people."

Fielder's Choice

I've been meaning to get to the news about the Field Museum of Natural History in Chicago.  It's the usual story -- the museum is deeply in debt, faces millions of dollars in budget cuts, including a new round of layoffs, this time including tenured scientists who will find it "very, very hard" to find new jobs -- but, while it's fine for them to sell off their entire collection of paintings by George Catlin and use the proceeds to "buy [more] artifacts," it would be a mortal sin to use those same proceeds for anything else.

And, on NPR, we hear from Carroll Joynes of the University of Chicago's Cultural Policy Center, who tells us "what make deaccessioning so tricky":  one, "[i]t makes donors in the future fear for the security of the things they leave to the organization"; and two, it "seems to many to skirt with a breaking of a trust or a vow to take these things into permanent protection for future generations."

But it never seems to occur to anyone to ask why those same concerns didn't apply to, for example, the sale of the museum's entire collection of Catlin paintings.  Did that not make donors in the future fear for the security of the things they leave to the organization?  Did that not skirt with a breaking of a trust or a vow to take those things into permanent protection for future generations?

Why don't the reporters ever call them on the inconsistency?

"In the press info for the commercial, Inversion, Havel, and Ruck are mentioned as inspirations."

Houston Chronicle:  Artists behind iconic Houston sculpture sue Honda over ad.

Idea or expression?

And, if the latter, is it a fair use because it has a "different purpose" than the original (i.e., to sell cars)?

Tuesday, May 07, 2013

"Battle Heats Up Over Resale Royalties for Artists"

I'm quoted in this Art in America story on resale royalties.

I hope to write more about this issue soon.  It seems to me that a consensus has formed around the view that the royalty is clearly a bad idea.  I'm not so sure.

"Good luck in finding the real artist for this. Any attempt to attribute this painting to Peter Doig in any way will be dealt with by our attorneys."

Guy claiming to have been Peter Doig's parole officer in the mid-1970s says he has a painting Doig made in 1976.  Doig (vehemently) denies it's his.  Parole officer sues for $12 million.

"He was assigned to paint two more rooms of the Schulhof house, but this time, hidden cameras had been strategically placed."

NYT:  House Painter Is Charged in Long Island Art Thefts.

"While the decision may provide some comfort for many artists who truly transform underlying artistic works, it may leave other artists struggling to understand exactly how much 'transformation' is needed to be 'transformative'"

Still more on Prince-Cariou.

Thursday, May 02, 2013

"A salute to the Court's own transformative, creative spirit"

Greg Allen has published another Cariou v. Prince book, a "carefully cross-referenced catalogue of each use of Cariou's YES RASTA images in Prince's Canal Zone paintings. This indexing was the basis of the judges' Solomonic decision to divide the Canal Zone series into 25 non-infringing works, and 5 infringing?-who-knows-let's-look-again works. Where applicable, the Court added highlights to Cariou's images, arguably creating yet another transformative work. And submitting it into the public record."