Thursday, June 26, 2014

Held in the public thirst  Detroit Resumes Cutting Off Water to 150,000 Residents, Prompting Appeal to United Nations for Help.

I don't believe that's dealt with in the Grand Bargain, but maybe it's in the fine print.

"Both sides have now delivered their arguments and await the decision of Judge Jay Rosman of Lee County Circuit Court."

The Art Newspaper's Charlotte Burns has the latest on the Rauschenberg Foundation fee dispute.

Monday, June 23, 2014

More Sanctionier

Carolina Miranda joins Lee Rosenbaum in calling for even tougher sanctions for museums that "pawn off works held in a public trust."

Guys, I think I have the solution to this problem.  Two words:  Capital.  Punishment.  If a museum board votes to pawn off works ... off with their heads!

Are you with me?  Or are you ready to concede that I care more about art than you do?

(Keep in mind, though, that it's perfectly fine to pawn off works held in a public trust ... as long as the proceeds are used to buy art.  That kind of pawning off is fine.  No sanctions necessary.)

Big Bucks

Georgina Adam has a new book out.  The subtitle is "The Explosion of the Art Market in the 21st Century."

Sunday, June 22, 2014

"Why commission original public art when you can steal an artist’s idea and outsource the work to China?"

Ben Davis on a $450,000 jury verdict against California real estate tycoon Igor Olenicoff.  (Davis says it's for "trademark infringement," but the underlying report to which he links says it was copyright infringement, which makes more sense.)  More from the Daily Beast's Justin Jones here.  Tom Flynn has been all over this story from the get go.  He says "[t]hankfully there are still a few lawyers willing to fight the oligarchs and the billionaires who would otherwise ride roughshod over artists' moral rights."

"Some say that the government’s ignorance is to blame for the recent failures in upholding the scheme."

Rachel Corbett in The Art Newspaper:  Percent for Art schemes fail to deliver.

Friday, June 20, 2014

Though the choice to sell was a difficult -- indeed agonizing -- decision, and a problem that does not admit of easy solutions ...

. . . the AAMD has, with regret, gone ahead and sanctioned the hell out of the Delaware Art Museum.  (Though when you read their statement, the regret part doesn't really come through so much.)

Lee Rosenbaum mocks their pathetic "whining" and calls for even tougher sanctions ("AAMD should try to convince major foundation and government funders that museums violating professional standards are unworthy of their support").  Because, after all, an important principle is at stake.

What is that principle again?  Oh yeah, the public trust -- I mean, "common sense."  (Or is it the sanctity of the coin of the realm?)

Speaking of the public trust, I got a chuckle out of the AAMD's latest statement, which includes the following line:  "With this sale, the museum is treating works from its collection as disposable assets, rather than irreplaceable cultural heritage that it holds in trust for people now and in the future."

But am I dreaming or were we not told a week ago that this is "not a matter, as is often claimed, of protecting the public trust"?

Well, what difference does it make, really, what it's a matter of?  Public trust, common sense, coin of the realm.  Whatevs.  The important thing is someone needs to be sanctioned and sanctioned hard ... even if we're not quite sure why.

Saturday, June 14, 2014

"After Much Debate, Picasso Curtain Will Be Moved From the Four Seasons"

New York Times story is here.  Background here.  I didn't follow all the ins and outs of this one, but it seems like a win for Aby Rosen:  he wanted to move it, and it's moving.  Or, as Paul Goldberger tweeted, "I thought it was too fragile to move?"

Wednesday, June 11, 2014

There's The Rub

Former AAMD president Timothy Rub has a piece in the Wall Street Journal today on the Delaware Art Museum deaccessioning.

This follows a piece he had a couple of months ago in the Delaware News Journal.  Back then, it was a "difficult -- indeed, agonizing -- decision."  Now things seems to have gotten less difficult and agonizing:  the new piece is headlined "A Dereliction of Duty" and expresses no doubt that the "decision was ill considered."

But the big news is that it's "not a matter, as is often claimed, of protecting the public trust."  That's good to know; I will keep that in mind for the future.  But before we move on, let me just ask:  who often claimed it was a matter of protecting the public trust?  Search this blog and you will find dozens of instances of the AAMD and other members of the deaccession police often claiming that it's a matter of protecting the public trust.  (A few are collected here.)  I'll be thrilled for them to drop this talking point, but let's at least be honest about the history.  We've always been at war with Eastasia.

So if it's not a matter of protecting the public trust, what is it a matter of?

The answer is ... common sense.  It's a matter of common sense.  Obviously it's okay for museums to sell work and use the proceeds to buy art but not okay to sell the same work and use the proceeds for any other purpose.  That's just simple common sense.

Actually, here's the whole answer:  "it's about common sense.  You don't cut out the heart to cure the patient; and yet this was the remedy chosen by Delaware's trustees to restore their institution to good health."  They "seem not to have understood their broader responsibility to care for all of the museum's assets -- most significantly, its collection."

Wow.  Where to begin with this?

First of all, the heart/patient analogy doesn't work at all.  Here's the thing about cutting out a patient's heart: if you do so, he will die.  The Delaware Art Museum is not going to die because it has 12,498 works in its collection instead of 12,500. The Detroit Institute would not die if it had 5% fewer works than it now has.  It may not be the same, it may even be significantly diminished, but one thing it will not be is a patient with his heart cut out.

In fact, doesn't it make more sense to see the trustees as having precisely understood their broader responsibility to care for the museum's assets?  Isn't that exactly what they take themselves to be doing with this sale? Here's what the museum's CEO had to say when the decision was announced:

"After detailed analysis, heavy scrutiny and the exhaustion of every reasonable alternative to relieve our bond debt, the Trustees had two agonizing choices in front of them -- to either sell works of art, or to close our doors."

Now, you may disagree with the choice they made, but does that sound to you like a board that has not understood its broader responsibility to care for the totality of the museum's assets?

There's more to discuss in the piece, but this post has gone on long enough already, so I'll stop here for now. I'm just amazed that these are the best arguments they can muster for a piece like this.  He should have at least mentioned the coin of the realm.  That's just simple common sense.


More contributions flowing in to the grand bargain today.  And with them, a possible answer, from Mark Stryker of the Detroit Free Press, to my question yesterday -- why bother with the grand bargain at all?  Why not just tell the creditors to pound sand?

"[T]he rush of corporate and foundation gifts this week reinforces the clever structure and broad appeal of the grand bargain .... By linking support for the DIA to concern for pensioners, the deal makes it possible for a diverse set of third parties to contribute to the city’s recovery in ways that are palatable. Foundations whose missions typically preclude bailing out municipal debt can justify supporting the DIA. Meanwhile, politicians in Lansing who might be squeamish about supporting the arts know that all of the money contributed to the grand bargain will go to pensioners" (my emphasis).

It is very clever, though, as I pointed out yesterday, there is a potential downside.

Tuesday, June 10, 2014

We’ve already established that. Now we’re just haggling over the price.

The big news out of Detroit yesterday was the announcement that the Big Three automakers have pledged $26 million towards the "grand bargain" to save the DIA's collection.  I may not have been that impressed with their legal papers, but the museum's PR game is beyond reproach.  As Matt Helms and Mark Stryker point out, the grand bargain didn't grow at all with this announcement; instead, this represents part of the $100 million the DIA had already committed to raise towards the deal.  But it's very shrewd of them to trumpet this as a great success, and to create a sense of inevitability about the whole thing.  Well played.

It's always struck me, though, that there is an inherent tension in the whole idea of the "grand bargain."

On the one hand, we keep hearing that the collection is off limits to creditors.  As the attorney general has told us, and the museum has told Judge Rhodes, the works are held in trust.  They cannot be reached by the creditors.

But if that were really true, there wouldn't need to be a grand bargain.  The grand bargain, you'll recall, "brings together the equivalent of $816 million from national and local foundations, the DIA and the state of Michigan to spare the museum’s collection from a possible sale."  In essence, it's a sale of the museum's collection to a new, independent nonprofit for $816 million.  But what makes that the right number?  We know that the collection is actually worth a great deal more than that.  Doesn't the existence of the grand bargain make it easier for the creditors to come in and say, "Look, everyone -- even the museum itself -- acknowledges that the art isn't really held in any sort of legally cognizable trust, it cannot simply be removed from the bankruptcy process, there has to be a price to the removal ... and this price is too low.  There are people out there who will pay twice that amount and the bankruptcy trustees have an obligation to explore those higher offers."

Now, it may be that Kristi Culpepper is right that there is no way Judge Rhodes is ever going to rule that the art must be sold to the highest bidder.  But in that case, why bother with the grand bargain at all?  Then you're paying $800 million for an asset that's already yours.

Monday, June 09, 2014

"[A] potentially far-reaching decision ... that allows the victims of Nazi-related looting and their heirs to press ahead with legal efforts to reclaim stolen artwork."

I don't usually cover Holocaust restitution cases here at the blog, but I did write about the Norton Simon Museum lawsuit for the Journal of Art Crime a couple years ago so thought I'd mention the latest development in the case.  The NYT's Patricia Cohen has a report here.  The LA Times is here.  Nicholas O'Donnell comments here.

Friday, June 06, 2014

"Authoritative authentication is essential to a well-functioning art market, the bill's sponsors maintain."

Tracy Zwick has a good piece in Art in America on the proposed authentication legislation in New York.  I'm quoted as saying I don't think the legislation would be a game-changer, and here's why.  Suppose you're an authenticator thinking of speaking up in some future Knoedler-type situation.  You know that, if you do so, you may end up getting sued.  Under this proposed legislation, you might be a little more willing to do so, because you can recover your legal fees if you successfully defend the lawsuit ... but what if you can't?  What if the person who sues you doesn't have the million dollars (or more) you had to lay out to defend the suit (not to mention all the time and stress and aggravation that being in a lawsuit inevitably entails)?  And what if, heaven forbid, you lose the lawsuit?  It can happen you know; there are no guarantees when it comes to litigation.  Now you're looking at the possibility of a multi-million dollar verdict for disparaging that Pollock or Warhol or Basquiat.  When you add it all up, aren't you (probably) still going to keep quiet?

Wednesday, June 04, 2014

Trust Me

With Detroit's "grand bargain" sweeping ahead, and the art seemingly safe, I finally got around to reading the DIA's motion papers arguing against any sale.  I wasn't as impressed with them as Nicholas O'Donnell was (though I thank him for the kind words about me).  It struck me as the kind of brief where a lot of dust is kicked up in the air, but when you try to grasp onto an actual argument, it isn't quite there.  In general, I find the whole notion of works being "held in trust" to be unhelpful to the debate.  You think it's a bad idea to sell the work, that the harmful consequences of doing so would outweigh the good -- then say so, make your case.  Introducing some imagined or implied "trust" feels to me like stealing a base, a way to cut off debate.  But that's a longer argument for another day.  For now, I just want to mention a couple of things from the museum's brief.

First, it argues that "it would be dishonest, immoral, and indecent for the City to attempt to claim the right to sell any property for its own benefit that the City represented the Museum would hold for the Public benefit."  But a couple pages later, they acknowledge that the "City retains legal title" to the work.  So who is this "Public" (with a capital P for some reason) for whose benefit the City is holding the work?  In this case (where the City owns the work), wouldn't it make more sense to say "the City holds the work in trust for the benefit of ... the City"?

Or is it always some other, imaginary capital P public that the work is being held for?

Second, if the works are truly held in trust -- not in a vague, poetic AAMD way, but in an actual legal trust that you are telling a federal bankruptcy judge prevents their sale -- then who gave the museum the right to sell works Whenever It Goddamn Feels Like It so long as the proceeds are used to buy more work?  So not only do they invent an imaginary trust, they then invent imaginary terms for the imaginary trust.  Of course one of the imaginary terms of the imaginary trust is that the imaginary trustees are empowered to sell off assets of the trust any time they want as long as they happen to follow the "ethical" guidelines of the major museum associations.

Imagine that.  What a lucky coincidence.

"It makes pensioners as whole as possible and protects the Detroit Institute of Arts from having its artwork seized and sold off."

Detroit News:  Detroit's 'grand bargain' sweeps ahead.

Tuesday, June 03, 2014

Grubby Reality

I missed this before the weekend, but apparently a more "comprehensive" appraisal of the Detroit Institute's collection is underway as part of the bankruptcy proceedings.  Randy Kennedy has the story here.  (On the previous, less comprehensive appraisal, see here.)   In a series of tweets (which I'll string together here), Kristi Culpepper says:

"Everyone's getting worked up about [Judge] Rhodes asking for arguments about whether court can force city to sell non-core assets. It's a formality. Rhodes will rule that this is not the case for two reasons: (1) He tends to go against capital markets creditors no matter what. (2) The 10th Amendment of the US Constitution limits the court's power over the municipality in obvious ways. Namely, court is not permitted to interfere with the property or revenue of the municipality (i.e., force sale without govt's consent). The court cannot force the sale of the art or other 'non-core' assets anymore than it can force the city to raise taxes."