Monday, December 26, 2016


There's been some discussion of a recent Southern District decision dismissing a breach of fiduciary duty lawsuit against an art advisor having to do with another "disavowed" Cady Noland work.  See, for example, The Art Market Monitor here ("Did Cady Noland Case Clarify Role of Art Advisors?").  I think the facts/posture of the case were too weird to draw any general conclusions from it.  Basically, a collector purchased a Noland work from a gallery with a rescission clause providing for a refund if she disavowed the work.  Which she did.  The gallery returned part of the purchase price, but not all.  The art advisor's role in the transaction was unclear:  "despite the suggestion in plaintiff's briefing that [the collector] 'retained' and 'paid' [the advisor], ... the Amended Complaint nowhere alleges as much."  And it also wasn't clear to the Judge what the advisor was supposed to have done wrong.  The inclusion of the rescission clause "affirmatively benefited" the collector; the problem was just that the gallery failed to pay back the money as agreed.  You get the sense from reading the decision that the Court felt like the collector's real beef was with the gallery -- who for some reason has not been served.  All in all a pretty strange case and not one that I think will provide much guidance going forward.

Does California's new "autograph law" apply to works of art?

Sheppard Mullin says it might.

"After years of litigation, we have gotten rid of all of her claims and we are entitled to go forward with ours."

The New York Times:  Case Against Robert Motherwell’s Foundation Is Dismissed.

This one too has been long-running.  Background, from 2009, here.

"The outlook for New York’s largest art museums is a little unsettling."

The always-interesting Adrian Ellis on how things might look for museums over the next four years:  "A Trump presidency is anxiety-inducing not because of any direct financial impact, but because of its potential impact on the world economy, and therefore on New York philanthropy and tourism. Perhaps more significantly, a culture war between scapegoated elite liberal and humanities institutions and a populist presidency seems likely. This climate may in turn affect both their overall appeal to the narrowing band of philanthropists and put at risk the fiscal privileges they enjoy under section 501(c)(3) of the federal tax code."

"In a more ethical world, to spend tens of millions of dollars on works of art would be status-lowering, not status-enhancing."

Dwight Garner's NYT review of Peter Singer's new essay collection led me to this 2014 piece, where he (Singer) asks, "In a world in which more than six million children die each year because they lack safe drinking water or mosquito nets, or because they have not been immunized against measles, couldn’t you find something better to do with your money?"

The world's biggest art gallery

Bloomberg had a story recently on Park West Gallery, which "sells pictures and sculptures at thousands of live auctions held on more than 100 [cruise] ships each year" and "has had annual sales as high as $400 million and counted more than 2 million customers."

The controversy around this has been going on for years, and Tyler Cowen had some simple advice here.

"We now have so much faith in the legal system."

After Knoedler Suit, a Passion Undimmed.

Tuesday, December 06, 2016

Artist Pension Trust News

It's merging with  The Art Market Monitor calls it "one of the more curious announcements in the art world" and says:

"What the combined companies can do together that they could not do apart is not readily apparent. Nor is there an obvious business model for either company as a separate entity or combined."

Background on Artist Pension Trust here.

Tyler Cowen on How Trump Should Support the Arts

The ground rules:  "I applied several standards to my recommendations. First, they must save the federal government money, to appeal to the Republican Congress. Second, they should stand a chance of appealing to Trump, given his stances on other issues. Third, they should offer a reasonable chance of improving the quality of the arts in the U.S., and fourth, the arts community should not hate every aspect of the changes."

The recommendations:

1.  End the transfer of 40% of the NEA budget to state arts councils; and
2.  Restore NEA funding for individual artists.

I stole that pithy summary from Michael Rushton, who adds:  "The two recommendations are driven by a common goal: help fund more interesting, innovative art. Transfers to state arts councils don’t do much for that goal, since they are driven by local politics and the need to serve constituencies on building projects and established arts organizations. Even at the federal level, grants to composers and artists have a chance of doing more to generate interesting art than traditional grants to orchestras and museums."  (His conclusion:  "Of Cowen’s recommendations, I am solidly behind (2), on the fence on (1). But at least he is trying to suggest an end for arts policy, which in turn suggests ways of criticizing alternative means to those ends and suggesting better ones. More like this, please.")

Sunday, December 04, 2016

"Lowe proclaims that his workshop seeks to 'redefine the relationship between the original and the copy.'"

There was a really interesting piece in last week's New Yorker on "The Factory of Fakes" -- Adam Lowe's 3D reproduction project, Factum.  A taste:

"Factum made its reputation in 2007, with a replica of Paolo Veronese’s monumental painting 'The Wedding at Cana,' which Napoleon presented to a new museum, the Louvre, after ripping it off the wall of a refectory in Venice in 1797. The painting’s place in the refectory, which was designed by Palladio, had never been filled; Lowe installed his copy in the exact spot. Factum’s noninvasive protocol, in which their scanner’s lasers captured every whorled brushstroke without touching the canvas, was in stark contrast to the Louvre’s restoration of the painting, in the nineteen-nineties, during which it accidentally fell onto some scaffolding and was gored in five places. ... When Italians witnessed the unveiling of the Veronese replica, in the creamily lit space where the artist intended his masterpiece to be seen, many of them wept. Bruno Latour, the French theorist, championed the 'Cana' project, and he and Lowe later wrote an essay about it, in which they referred to a 'migration of the aura' from original to copy."

Monday, November 28, 2016

Noah Charney would love to be a forgery collector

He explains here:  "Stripped of the fraud component, what you have is an extremely skillfully executed painting, beautiful and with a heck of an interesting story behind it. It becomes a relic of the story in which it featured, but it can also be admired for its aesthetic value."

Monday, November 21, 2016


ARTnews has an interesting series of contributions on the question how to fix the art world (part 1, part 2).  Some of the responses touch on art law issues, including these suggestions from Christy MacLear of the Rauschenberg Foundation:


"Set them free. Images for scholars, teachers, museums, and stewards. Images to be reused creatively by other artists. Even fair use comes with fear and some still seek a free pass or approval. Stop asking—start using—go forth and flourish. Share smartly and avoid a fear of legal retribution; we all trust you. Use art to teach and share knowledge or inspiration. We love more people loving art.


"Gifts of art to charities propel our culture but inure no direct benefit to the artist. ... An artist’s contribution to society must be recognized for more than simply the value of raw materials. Art must be valued as a donation equally for the creator as it is for the collector. Wealth and tax equality for all."

Friday, November 18, 2016

Christie’s Ned Schefer has excellent taste in online reading material

As evidenced here.

"The hits keep coming, but Prince doesn't seem to care."

artnet's Eileen Kinsella has a report on the latest Richard Prince lawsuit (including a quote from my post yesterday).

VAT insanity

Norway edition.

Thursday, November 17, 2016

Deja Vu All Over Again

Another lawsuit against Richard Prince.

Here is a previous example.  And another.  And another.  I'm probably missing some.

This is why I called the Second Circuit's Prince-Cariou decision a "missed opportunity."  Nobody has any idea what's fair use and what's not in the fine art context.  Prince-Cariou could have helped clear that up; instead, it made things worse.

Monday, November 07, 2016

The jig is up, the news is out

I'm honored to be included on this list of art law renegades from Sergio Muñoz Sarmiento.

Monday, October 31, 2016

"French law forbids national museums from selling anything in their collections, unlike many museums in the United States, which can de-accession works."

Did American museums' promiscuous deaccessioning practices contribute to the decision by Spencer and Marlene Hays to leave their incredible collection to France?

Maybe some day American museums will understand that they hold their works in the public trust, to be accessible to present and future generations, and they shouldn't be sold off in the normal course.

Saturday, October 29, 2016

"In the art market, repeat sales account for a fairly small fraction of total sales. ... Thus, any art index based on repeat sales—such as the Mei-Moses index—is unlikely to be considered representative of any market segment."

Sotheby's has bought the Mei Moses art index, for an undisclosed price.  I'm with Columbia Business School's Arturo Cifuentes, quoted in the header above.  As Felix Salmon put it several years ago, the index is "a creature of massive survivorship bias. The Mei Moses index looks at auction pairs: works of art which have been sold at auction twice. This method gives a very good idea of what has happened to the value of any given work of art over time, but it’s a very bad way of determining what has happened to the art market as a whole, since the kind of works which get auctioned multiple times are decidedly not representative of the broader art world."

Monday, October 24, 2016

Tell me again about the public trust (nearly 70 antiquities originally from Egypt and other countries edition)

The Toledo Museum of Art is selling.  Don't be alarmed by the fact that "modern international cultural heritage laws make it impossible to acquire such antiquities, meaning the Toledo museum is unlikely to ever be able to replace the objects if leaders would choose to do so."

It's not like those nearly 70 objects, having fallen under the aegis of a museum, were held in the public trust, to be accessible to present and future generations.  That's a totally made up thing. No one ever says that.

"New Authentication Lawsuit Filed Against Agnes Martin Catalogue Raisonné"

Nicholas O'Donnell has the details, and a preliminary analysis.  The complaint is here.

Friday, October 21, 2016

Another example of the indeterminacy of fair use

Courtesy of Clancco. Southern District said fair use on motion to dismiss. Second Circuit disagreed.

As I've said, no one has any idea.

Tuesday, October 18, 2016

"But now he says all 24 of the Golubs he bought from the Gascards are fake."

Graham Bowley reports in the Times on a lawsuit filed by Wall Street trader Andrew Hall against an art history professor and her son.

The problem of the art market is how do you build a set of legal rules to govern a marketplace where even the most sophisticated participants (the Times notes that Hall was "capable of earning a $100 million bonus in a single year," has amassed a collection of 5,000 works, and has his own private museum) can't tell the difference between the real and the fake?

A related story is unfolding here.

And an interesting observation from Blake Gopnik:

"There’s one other take-home from all this ...: Any case where science does need to be invoked is a case where the forgery is so good, and so very like what we expect from the artist in question, that it does all the aesthetic work that an original would. And that means the fake can happily be folded in with the real works we know, without doing much harm at all or even making much of a difference. ... Any time expert eyes can’t agree on whether a picture is real or fake—or when it turns out that they all agree that a fake is real—they are actually letting us know that it’s a case that’s barely worth resolving."

Monday, October 17, 2016

The "transformative" gift to MoMA ...

... from the Cisneros Collection gives me a chance to re-up this piece from last year:  What culture? What public?

Saturday, October 15, 2016

More on the Shvo indictment

From ARCA here.  The Real Deal here.  Background here.

"Today I put myself forward as a candidate for the 2018 election."

Tania Bruguera is running for office in Cuba:

"Pushing barriers has been Ms. Bruguera’s signature. She made waves in December 2014 when she attempted to stage an open-mike performance in one of Havana’s most emblematic plazas, a gesture for which she was arrested and had her passport confiscated for several months."

Tuesday, October 11, 2016

Should the U.S. adopt a payment-in-kind income tax program for artists?

This law review article by Julia Bogdanovich argues no.  (h/t)

Monday, October 10, 2016

"The Frans Hals Revelations Cast Doubt on Both Technical Expertise and Connoisseurship"

The Art Market Monitor on the recent news that Sotheby's has reimbursed the buyer who purchased a painting attributed to Frans Hals for $10 million.

Thursday, October 06, 2016

The Fifth Circuit brings some sense to the Marguerite Hoffman breach of confidentiality lawsuit

This has been going for for six and half years.  Background here, here, and here.  Briefly, Hoffman sued collector David Martinez and L&M gallery for breach of the confidentiality clause in the sale of a Rothko.  The District Court threw out the claims against Martinez, but let stand a $500,000 verdict against the gallery.  (Hoffman had reportedly sought more than $22 million.)  The Fifth Circuit has now thrown out the verdict against the gallery too.  You can read the decision here.

There were always three things that struck me as really odd about the case.

First, my very first reaction to the claim, way back in 2010, was to note the strangeness of the core claim "that, because Martinez agreed to keep the transaction confidential, he could never re-sell the work. That is, he is said to have breached the confidentiality clause not in the usual way such clauses are breached -- i.e., by blabbing about it -- but by the mere act of selling."  The Fifth Circuit refuses to read the confidentiality provision as "permanently prevent[ing] the public sale of the [work]."

Second, I never understood the damages theory in the case.  Hoffman's theory seemed to be that her damages were the amount she "gave up by selling the work privately (with a confidentiality clause) rather than at auction, as if sales at auction always do better than private sales."  The Fifth Circuit rejects this "auction premium" theory as hypothetical and speculative.

And last, the lawsuit always seemed to be, as The Art Market Monitor put it, "self-defeating."  If the concern was to not draw attention to the fact that Hoffman sold the Rothko ... well, here we are six and a half years later still talking about the fact that Hoffman sold the Rothko.  I would also assume that the legal fees for six and a half years of litigation were not insignificant.

In any event, the end at last of a pretty bizarre case.

Tuesday, October 04, 2016

Brian Frye on the Detroit Bankruptcy

Self-recommending.  It's not primarily about the museum association deaccessioning rules, but I am naturally drawn to paragraphs like this:

"And yet, it is unclear why it is 'ethical' to sell artworks in order to buy artworks, but 'unethical' to sell artworks for other purposes. For example, under the AAM and AAMD guidelines, it is 'unethical' for an art museum to sell a work of art in order to avoid bankruptcy. As a consequence, art museums facing financial crises have been forced to close, when the sale of a single artwork could have covered their expenses. Most recently, the Corcoran Museum of American Art found itself in precisely this situation, and we lost an American institution. Would it really have been 'unethical' for the Corcoran to have sold an artwork in order to maintain its existence? Would it really be 'unethical' for a museum to sell an artwork from its collection in order to provide free admission? Would it really be 'unethical' for a university art museum to sell an artwork in order to provide scholarships?"

Yes, would it?

"There are now three lawsuits claiming that Leigh Keno or Leslie Keno and/or one of their companies have not paid their auction house bills."

Details in the Maine Antique Digest here.  At least one involves allegations of shill bidding. Background here.

Wednesday, September 28, 2016

Met lays off 34 employees (UPDATED)

Story here.

UPDATE:  There's also this:  "The museum also expects to reduce the number of annual exhibitions over the next few years, perhaps to 40 from 55."  That's fine; just remember it's a choice.

Tuesday, September 27, 2016

Michael Rushton on whether museums should provide free admission

Self-recommending (even without the interesting detour into deaccessioning).

Thursday, September 22, 2016

"Are museums for sale?"

A big thank you to the Art, Cultural Institutions and Heritage Law Committee of the International Bar Association for including me as a panelist in yesterday's session:  Are museums for sale? The role of the private collector and corporate sponsor.  (I was on Panel 1 -- "Will de-accessioning be the new normal?"  To which my basic response was/is:  isn't it already the new normal?  Haven't we been told it shouldn't be such a touchy subject?)

Monday, September 19, 2016

"[Negishi] has intervened in some areas of my paintings, but the intellectual authorship of the works is mine."

Via Clancco, news of a co-authorship claim in Spain by a former studio assistant of the artist Antonio de Felipe.  I don't know what the story is in Spain, but the problem with this sort of claim under U.S. law is that co-authorship requires that the parties intended to be recognized as co-authors, and that's obviously not the case in most artist-studio assistant situations.

Monday, September 12, 2016

Thursday, September 08, 2016

"Of course, I’m pleased by the verdict. But it was a horrible thing to go through.”

Peter Doig talks to The Globe and Mail about his recent trial:  "It took up so much time and energy not to mention, of course, money."

He believes the "larger take-away" from the case is that "a living artist should be the first and last authenticator."

But what about the possibility that an artist might be mistaken, or dishonest?

"'Sometimes, of course, there may be an agenda' – a disputatious ex-lover, 'someone the artist had bad dealings with – and they may say, "I didn’t make that work." But that is so, so rare, I think.' Most people, Doig said, would 'just take it on the chin and say, "Yeah, I did do it."'"

Marie Dooley says the case "demonstrates that authentication, even by the living artist himself, can prove to be a costly endeavor for all parties involved."  Exactly.

"Art collector ... Michael Shvo has been indicted by the Manhattan District Attorney for tax evasion related to a scheme to avoid sales tax on expensive art purchases." (UPDATED)

Story here.

UPDATE:  More details on the alleged scheme here.  And here:

"The DA said that between 2010 and 2016, Shvo falsely told auction houses that purchases he made would be shipped to an out-of-state address in the Cayman Islands or other foreign countries, thus avoiding sales tax. Instead, they went to his offices and homes in New York state.... Two moving companies, Hedley’s Inc and Bestguy Moving, are also charged with participating in the scheme.They allegedly provided the auction houses and galleries with improper shipping documentation to conceal the delivery destinations. Shvo is even alleged to have fraudulently used New York Resale Certificates, which allow art dealers to purchase items exclusively for resale without paying tax."

Tuesday, September 06, 2016

"We might be sympathetic to a plaintiff in the case of a different set of facts."

So said Amy Adler in response to the recent Peter Doig case.

Hazel Rowland collects some examples of different sets of facts here.

Are we sympathetic?

"It is impossible to talk about the case without making it sound ridiculous; indeed, it *is* ridiculous, as in 'an exceptionally easy target for ridicule.'"

America’s only known primatologist-turned-copyright-law-professor weighs in on the monkey selfie case:

"There are many reasons that copyright law does not and should not deem Naruto to be an 'author,' ranging from the purely practical (e.g., How do we know the monkey’s name is 'Naruto,' and that he was the one that snapped the photo? What if no human had been there to see him do so — is there still a copyright, and does he own it? Insofar as copyright in a work endures for the life of the author plus 70 years, who’s keeping track of this wild macaque’s lifespan, and how will we know when it’s over?) to the more abstract: Copyright’s fundamental rationale is that bestowing protection on works is a means of providing 'authors' with an incentive that they otherwise would not have to create those works in the first place; non-humans (and machines, for that matter) can’t be 'authors' because they won’t be and can’t be incentivized by the existence of copyright protection for their works."

California bans painting depicting Confederate flag from County Fair art show

The Center for Individual Rights objects.  So does the LA Times editorial board.

Tuesday, August 30, 2016

“[T]he move to the transformative analysis, thought by many to be the solution to fair use woes, has actually made things worse for the visual arts.”

Speaking of excellent points by Amy Adler (who by the way co-teaches the best art law seminar in the world), she has a terrific new law review article out:  Fair Use and the Future of Art.

I’ve never thought the transformative test was remotely helpful either.

And one more interesting recent Adler piece here.

"No longer is it prudent to leave a body of work to one’s next of kin and hope for the best."

The Financial Times:  How an artist's legacy became big business.

Related:  What Artists Should Do to Protect Their Legacies before Dying.

Another "what we learned from the Knoedler scandal" story

This one from Laura Gilbert in The Art Newspaper.

A previous example here.

I continue to think the answer is "not much."

Monday, August 29, 2016

Weighing In

Artnet collects reactions to the Peter Doig case from various experts, all interesting and very much worth reading.

Amy Adler makes an excellent point here:

"[L]et’s say Doig had lied. I don’t think VARA gives you a right to disavow a work you actually created, unless it’s been significantly modified. In defense of the theory of the lawsuit, there may be circumstances where an artist does lie and could with one word wipe out $10 million of value; what recourse does an owner have under those circumstances? We might be sympathetic to a plaintiff in the case of a different set of facts."

Relatedly, there seems to be a sense, in some of these pieces and elsewhere, that the Judge in the Doig case set a bad precedent, or made life more difficult for artists going forward.  I don't think that's quite right.  All this case did was expose the risks to artists that were already there.  Before the Doig case, an artist who denied the authenticity of his work faced the possibility of a lawsuit.  After the Doig case, an artist who denies the authenticity of his work faces the possibility of a lawsuit. Nothing has changed.  This was always dangerous territory, as Doig sadly found out.

Friday, August 26, 2016

Another Richard Prince lawsuit

The Art Newspaper's Julia Halperin has the details, including that "[u]nlike the plaintiffs in the previous cases, Salazar—who posts to Instagram under the name @mynxiiwhite—is not a professional photographer. According to her website, she is a makeup artist who has toured with Kanye West and Kelly Clarkson as well as a model who has appeared on the cover of Elle Japan and Vogue Italia."

Wednesday, August 24, 2016

"As one of my former Corcoran colleagues said about the two case studies, ‘The Corcoran is dead. Delaware lives.'"

The Washington Post's Peggy McGlone had a story last week on the demise of the Corcoran Gallery: Homeless art, lost jobs and low enrollment: Two years later, Corcoran's breakup still stings.

Two years ago, when this was all going down, I asked:  Did the Deaccession Police Kill the Corcoran?

It seems that's exactly what ended up happening, as Tim Schneider explains:

"I'm chiefly appalled by how the US's economically ludicrous museum standards factored in. Whether their fear was authentic or simply a smoke screen for what sounds suspiciously like an inside job, the trustees reportedly opted for this plan partly because they knew they could not sell any of the Corcoran's assets to raise money for operating expenses without being institutionally waterboarded by both the [AAM] and (although McGlone doesn't mention it) the [AAMD]. For the uninitiated, the sacred standards of these organizations decree that museum holdings can only be placed on the market to fund new acquisitions, not grubby terrestrial line items like, you know, staying solvent. Case in point: The AAM excommunicated the Delaware Art Museum in 2014 for selling select works from its collection to pay construction debts on a major architectural expansion, while the AAMD imposed major sanctions for the same supposed offense. But as Delaware's chief executive points out to McGlone, the DAM survived its exile and is now thriving. The Corcoran, on the other hand, effectively reduced itself to a zombie institution willingly serving up its limbs to scavengers. All of which underscores the American nonprofit sector's illogical orthodoxy on de-accessioning: Preserving the supposed sanctity of a museum's collection is meaningless if the institution has to die for the cause. And if you ask me, it's far more barbaric to give the public an honor killing than a museum where art and business are allowed to sensibly mix."

Well said.  And speaking of Schneider, he, and friend of the blog Brian Frye, will be taking part in a panel discussion tomorrow night at WhiteBox in New York on the intersection between art, technology, and business.

Tuesday, August 23, 2016


The New York Times:  The Artist Peter Doig Wins a Case Involving a Painting's Attribution.

But of course, nobody really won here.

UPDATE:  More here from artnet's Dushko Petrovich.  He closes with a quote from one of Doig's dealers:  "It is our hope that this verdict will have at least one good outcome—that artists maintain the unfettered right to authenticate their own work."  Unfortunately, I don't think that's the case.  If an artist had the unfettered right to authenticate his own work, the case would have been dismissed earlier; it would never have come to trial.  Instead, what happened here is that the court treated the artist just as any third-party authenticator:  the ruling was that he happened to be right about the facts in this instance (i.e., the painting was by Doige not Doig).  But if he had been mistaken about that -- if he misremembered, or the status of the work was more ambiguous (say Doig had painted it while a teenager but he didn't regard it as a legitimate work) -- the outcome could have been different.  So I don't think artists should be especially heartened by the decision.  The case still stands as a warning that an artist who disclaims authorship of a work -- even on facts as ridiculous as these -- faces the possibility of thousands of hours of wasted working time and stress and hundreds of thousands of dollars in legal fees.

Friday, August 19, 2016

Still monkeying around

The Washington Post reported last week that, in the Monkey Selfie appeal, a "prominent anthropologist at the University of Notre Dame" has filed an amicus brief arguing that "[t]here is no dispute that Naruto created the images in question. Naruto is, therefore, the author."  That misses the point, I think.  That's a scientific conclusion.  The question in the case is a legal one:  does it make sense to consider animals to be authors in order to achieve the purposes of the Copyright Act?  On that question, Mike Masnick and Jordan Weissmann have the better of the argument.

Thursday, August 18, 2016

"And so now, Von Saher will likely head to the Ninth Circuit for the third time, and the case will pass into its second decade."

I don't generally cover a lot of restitution stuff, but I did write a piece for the Journal of Art Crime on the Norton Simon-Von Saher case a few years back.  Nicholas O'Donnell reports that the museum recently won a "stunning" victory on summary judgment.

Deja vu all over again

The Art Newspaper reports that the Artist Pension Trust has made its first distributions to participants.  That's nice, but it's also at least the third time in the last six months that I've read this story.  Here's the New York Times back in March.  Here's ARTNEWS in June.  Some background here.

Lawsuit Over Koons Gazing Ball Sculpture

Stories by Dan Duray here and Brian Boucher here.

Wednesday, August 17, 2016

"What Happened on the Last Day of Peter Doig’s Ridiculous Trial"

artnet's Dushko Petrovich has you covered.  Another report here.

Tuesday, August 16, 2016

"Those fateful seconds, however, have resulted in what Doig called 'thousands of hours' of wasted working time and stress."

I was away last week, but the big art law story continues to be what artnet news rightly calls the "bizarre" authentication trial against Peter Doig.  You can read their account here.  Background here.  Deborah Solomon says the case "amounts to artist harassment."

That seems clearly true, but, to my mind, the lesson of the case is that anytime anyone (including the artist who supposedly made it) denies the authenticity of a work of art, they run the risk of incurring thousands of hours of wasted working time and stress ... not to mention who knows how much in legal fees.

The trial was scheduled to resume today.  I'll post further updates as they appear.

Wednesday, August 03, 2016

Does VARA need to be updated?

I'm quoted in this piece on the subject in the Observer.

Tuesday, August 02, 2016

"The denial sets up a likely appellate court battle that could determine the fate not just of the plaintiff artists’ resale royalties, but of the underlying statute."

Los Angeles Business Journal:  "Trial Judge Denies Artists Request to Reconsider Royalties Decision."  "While the law has been trimmed by an appellate court ruling last year, Fitzgerald’s decision, if upheld by the 9th U.S. Circuit Court of Appeals, could effectively moot the entire statute."  Background here.

Monday, August 01, 2016

Getty Images Lawsuit

The billion dollar demand may lead you to think of the recently-filed lawsuit against Getty Images as less than serious, but it's not a joke at all, it raises some very interesting issues.  Read about it here. Here is a link to the complaint.

Saturday, July 30, 2016

The selfie monkey is appealing

Story here.  Appropriate reaction from Mike Masnick here.  Background here.

Is a copyright small claims court a good idea?

Kevin Smith doesn't think so, at least not in the form envisioned by the recently introduced CASE Act:  "I think that the proposed legislation would make it easier for Big Content, and especially for the copyright trolls who are often their vanguard, to bully ordinary individuals and increase the phenomena of copyright enforcement by fear, rather than through the law."

Another risk of being in the authentication game

artnet:  "French scholar Marc Restellini has braved death threats over his efforts to authenticate works by the Italian artist Amedeo Modigliani."

Friday, July 29, 2016

"There’s something strange about the view that universities should never sell their art, no matter what."

It's an interesting, and undeniable, feature of the deaccessioning debate that any time someone from outside the art world looks at the issue -- anyone, that is, who is not worried about being banished from the cool kids table in the cafeteria -- they find the deaccessioning taboo to be nonsensical. (Some previous examples here, here, here, and here.)

The latest is Harvard lawprof Noah Feldman, reacting, in his latest Bloomberg column, to the revelation that Fisk University sold two paintings a few years ago (sold them "under the radar," according to the New York Times ... and don't get me started on the Times's role in all this craziness). Feldman writes:

"The real question is whether a university should treat its works of art as commodities to be sold in a pinch or as fetishes to be worshipped and preserved no matter what. The former view may be a bit crude. But the latter view is absurd for an institution facing financial strain and deep cuts to its education mission. History, legacy and atmosphere can enhance the educational experience. But ultimately, they are supposed to serve education, not take priority over it. Give Fisk a break. Or give it a donation."

He's right that it's absurd -- not just wrong or misguided, but absurd -- and why anyone takes the deaccession police the least bit seriously remains one of life's great mysteries to me.

Thursday, July 21, 2016

“Mr. Schneiderman said that state law requires sales tax to be paid when possession of a good is transferred to a buyer within New York State and that the gallery, in handing over art to shipping companies that were not common carriers like FedEx or the United States Postal Service, was legally transferring possession to the buyer at that point.”

Randy Kennedy had a report in the NYT yesterday that Gagosian Gallery has agreed to pay New York State $4.3 million in back sales tax, interest, and penalties.  There were a number of different issues in play, but one of them is the one I quoted in the header above – and that kind of silly formalism has never made any sense to me.  If it’s a legitimate out-of-state sale – there’s no game-playing going on, the buyer genuinely has a home somewhere else – why should it matter whether the work ships by FedEx or by common carrier or by horse and buggy?

There is an art connection in the 1MDB embezzlement case

On the matter generally, see here.  On the art connection, see Kelly Crow at the Wall Street Journal and Eileen Kinsella at artnet.  And the Art Market Monitor says:

"The unanswered question surrounding Jho Low’s adventure in the art market is what he was hoping to accomplish with his art and real estate purposes. The assumption is that he was hoping to make quick gains by investing in art and real estate using borrowed money from 1MDB and multiplying that with leverage from other sources. But most of Low’s purchases were made at the top end of the market. In that range, Low was behaving more like a trophy or status buyer than a speculator."

"The balance of power in the forgery detection game is about to shift." (UPDATED)

Artsy:  These Four Technologies May Finally Put an End to Art Forgery.

UPDATE:  Tim Schneider:  "The cross-sector enthusiasm for these innovations shows why I expect technology to make a vastly bigger impact on art services than art sales. The most powerful gallerists and dealers will be happy to buy into a better mousetrap if it enhances their core business––and, unlike e-commerce, poses no threat to the aura of exclusivity and exceptionalism that has driven that business since its inception."

Saturday, July 16, 2016

"The hapless pensioner explained to police that she was simply following the instructions."

The Telegraph:  91-year-old woman fills in crossword at museum - only to discover it was a £60,000 artwork:

"'Reading-work-piece', a 1977 work by Arthur Köpcke of the Fluxus movement, essentially looks like an empty crossword puzzle.  Next to the work is a sign which reads: 'Insert words'."

The museum says "in the future it would alter the label for the work to make it clear visitors were not permitted to fill in the blanks."  But Ann Althouse asks, "Doesn't that wreck the work of art?"

Rhett Jones says "Something tells us the Fluxus people would like this story."

Friday, July 15, 2016

"The smoke is clearing." (UPDATED)

The Observer:  What We Learned From the Knoedler Trial and Scandal.

Short answer:  not a lot.

UPDATE:  The Art Market Monitor: "To sneer and mock the buyers of these fakes may make the crowd feel superior but it does nothing to explain how so many sophisticated buyers were eager to acquire these fakes."

"Met to Cut 100 or More Jobs in a Move to Steady Finances" (UPDATED)

Robin Pogrebin has the story here.

Remember, this is a choice.  They don't have to let these people go.

UPDATE:  "Campbell said exhibitions would be cut to 40 per year from 55 to reduce costs. That’s more than a quarter."  Also a choice.

Sunday, July 10, 2016

Germany's strict new "public trust" law has passed

Dealers call it "the most stringent import and export restrictions on cultural objects in the world" and say "private collectors were already moving valuable works abroad before the law’s passage to avoid the new regulations."

The German culture minister would make a good member of the Deaccession Police:  she says "Germany spends billions in tax money to promote culture. It is therefore a matter of course that we should protect and keep our own cultural heritage."

In other words, because we subsidize, in a general way, "culture," we now own these very particular items of culture which may or may not have had any direct connection to the billions in tax money that's been spent.  All your culture are belong to us.

Some background here and here.

Another weird authentication case

What happens when a forger admits to forging an artist's work ... but the artist disagrees and declares the work authentic?  We're finding out right now, in South Korea, with artist Lee Ufan.

"Who Gets the Subsidized Apartments?"

A New York Times editorial this week:  "A new study of [federally financed affordable housing for artists] suggests it might worsen racial segregation by bypassing black and Latino people in favor of younger, white tenants."

"Pictures in the Sunday Styles tribute were of Cunningham by other photographers, or black-and-white images of newspaper clippings of his columns, which an insider pointed out is a way to get around the rights issues."

Page Six is reporting that Bill Cunningham died without a will, and (surprisingly to me at least) the Times has no ongoing rights to use his photos.  His heirs include "several nieces and nephews."

Saturday, July 09, 2016

The perils of authenticating, part infinity

The NYT's Graham Bowley had a detailed report this week on a fascinating lawsuit in federal court in Illinois:  artist Peter Doig is being sued for denying authorship of a work the owner claims he made as a teenage inmate at a Canadian detention facility.  Doig's motion for summary judgment has been denied, and the case is scheduled for trial next month.

Bowley says "even if the court favors [the owner], it could be a hollow victory. Since the artist himself and the dealer who represents him say it’s not a Doig, the art market is unlikely to assign much value to it, art experts said" -- but if he wins, Doig might have to pay him the value of the painting, which wouldn't be hollow at all.

This is scary stuff.  As Nicholas O'Donnell says in the article, it "put[s] at artists in the cross hairs."  Or as Sergio Muñoz Sarmiento says, "[a] decision against Doig could have shocking consequences for artists."

Friday, July 08, 2016

Held in the public cone

An ice cream museum is popping up in Manhattan later this month, near the Whitney.

You can only eat a scoop if you replace it with another scoop.  #deaccessioninghumor

I'll be here all week.

Friday, July 01, 2016

Thursday, June 30, 2016

"Unauthorized Peter Beard Exhibit Will Go Forward"

Reports the Observer.  It's hard to tell what the hell is going on from the story.

Wednesday, June 29, 2016

"As far as I’m concerned, it has nothing to do with copyright."

"A work of art goes out there, and there’s a stream that activates and widens the communal imagination. It was an honor that I was being quoted. There was no money involved at all."

NYT:  Artist Who Inspired Kanye West’s ‘Famous’ Video: ‘I Was Really Speechless.’

"The artists have received payments between $200 to $1,700."

Back from a break and catching up on the news, I see that, after "a successful sales pilot," the Artist Pension Trust has made its first distributions to artists.  Well, no one is retiring on these distributions, though overall it remains too soon to tell.  Some background here.

Wednesday, June 15, 2016

Details on the Picasso bust settlement

From Robin Pogrebin here.  Background here.

Friday, June 10, 2016

"Artists cannot claim deductions on the artworks they donate, no matter the market value or hammer price commanded by their work."

"All they can write off is the cost of materials. Buyers, on the other hand, can claim a deduction when the work they purchase at a benefit sale hammers down for more than its fair market value."

ARTnews:  The Best Intentions: Inside the Wild World of Charity Auctions.

"The new approach reduces the risk that Sotheby’s ends up with too much artwork in its inventory -- a concern particularly in a slowing market." (UPDATED 2X)

Bloomberg reports that the auction houses are now paying fixed fees to third-party guarantors. The Art Market Monitor calls the story "laughable nonsense":  "The guarantee is a kind of loan and the guarantor deserves to be paid interest for making it."

UPDATE:  Felix Salmon:  "This is not manipulation, it’s transparency, and a welcome development."

UPDATE 2:  Tim Schneider:  "[The Art Market Monitor] argues—convincingly, I think—that ... critics are intentionally miscasting these arrangements as something more devious than what they are: fully disclosed insurance policies against a piece going unsold at auction ...."

Thursday, June 09, 2016

Apply Yourself

An interesting Ninth Circuit VARA decision that turns into a debate about the meaning of "applied art" (because applied art is an exception to VARA; if it's applied art, it's not protected).

The case involves La Contessa, "a used school bus transformed into a mobile replica of a 16th-century Spanish galleon" for use at the Burning Man festival for several years, and then destroyed.

The majority opinion wants a relatively objective test:  "the focus of our inquiry should be on whether the object in question originally was—and continues to be—utilitarian in nature."  If the object "initially served a utilitarian function" and "continues to serve such a function" even after the artist transforms it, then it's applied art (and therefore not protected by VARA).  The majority wants judges to (and this is relevant, I think, to the fair use/appropriation debate) stay out of the business of making aesthetic judgments:  the alternative proposed by the concurring judge -- to ask whether a work is primarily directed to a practical purpose -- would "necessarily require[] courts to express judgments regarding the importance of an object’s artistic qualities," and "how different judges could answer such a question on a consistent basis is anything but clear."

The concurrence calls for a "more textured and flexible definition."  VARA's protections "cannot be limited only to works entirely devoid of any utilitarian purpose. ... Many outstanding sculptures, including the Caryatids of the Acropolis and the monumental carvings of Ramses at the temple of Karnak are in fact columns that provided buildings with structural integrity.  Medieval tapestries not only represented a form of fine art, but also kept castles and cathedrals free from draft."  "To effect the purpose of VARA and provide guidance for the art community, I believe courts should evaluate the work as a whole, asking whether its primary purpose is to serve a useful function and whether the artistic creation is subservient to that purpose. If the primary purpose is for the work to be viewed and perceived as art, then any incidental utilitarian function will not push it outside the scope of VARA."

I score this round for the concurrence.

Eileen Kinsella has a good write-up at artnet.  Courthouse News Service here.

Friday, June 03, 2016


Daniel Grant had a piece in the Weekly Standard a week or two ago arguing, generally, that "philanthropy is not a tax proposition" and, more specifically, against proposals for restoring the income tax deduction for donations by artists (as opposed to collectors).  In general I disagree with Grant's take on this -- I think any time you make something more expensive (which is what happens to donations of art when you reduce the accompanying tax deduction), you get less of it.  But there are two, more narrow points I want to make here:

1.  The piece is critical of Ralph Lerner for telling the New York Times right after the Pension Protection Act was passed in 2006 that it would be "the death of fractional gifts."  As Grant points out, fractional gifts "didn't die and continue to be a normal way that donors" structure their giving. But -- and I realize this is a long time ago and little bit inside baseball -- the initial version of the Pension Protection Act would have been the death of fractional gifts -- as a result of what I called at the time the "mismatch problem." When that problem was later fixed through technical corrections, it brought the practice back from the dead.

2.   Grant says:  "As a practical matter, if artists want to have the same tax deductions as non-artist donors to museums, they simply can sell their work and contribute the earnings to these public institutions."  That's not the case.  Here's why.

If a collector donates a work to a museum, he reduces his taxable income by the fair market value of the work – a net positive.  Say he has a million dollars in income and the work is worth $100,000.  He now pays tax on only $900,000.

But if an artist in the same situation sells the work and contributes the earnings, he now has $1.1 million in income and a $100,000 tax deduction – so he pays tax on a million dollars.  The same as he would have had he not made the donation.  It’s a wash.  He’s given up the work but it’s done nothing for him tax-wise.

The two situations are not the same.

"There’s just not as much financial incentive to sue me. There’s a difference between suing an estate worth hundreds of millions and suing an individual." (UPDATED)

Jori Finkel interviews Richard Polsky about his new authentication service, which is now expanded to include Haring and Basquiat.

UPDATE:  "Wait, what?"

Update on the private museums question (UPDATED)

The Art Newspaper's Julia Halperin got her hands on a summary of the report the Senate Finance Committee recently submitted to the IRS on the issue of so-called private museums.

"Raises questions."  "Merits further scrutiny."  "Helpful shot across the bow."  There, you're all caught up.

As I've said before, my view is that, while some of these may not look so great right in this moment, if you take a longer term view, the benefits outweigh the costs.

UPDATE:  The Nonprofit Law Prof Blog:  "Inquiries of this type bother me somewhat.  It seems to me that current law regarding private benefit is probably sufficient to handle many of the perceived abuses ....  The drumbeat of the articles and the Senate inquiry may lead to additional regulation - and I suspect they will use a mallet rather than a surgical instrument to deal with the issue, if history is any guide."

Saturday, May 28, 2016

Extradition Request in Knoedler Case Denied (UPDATED)

Glafira Rosales's boyfriend.  Health reasons.

UPDATE:  More here from Eileen Kinsella at artnet.

"You can’t copyright an idea." (UPDATED)

Lit pigeons edition.

UPDATE:  Once again, a dissenting view from Sergio Muñoz Sarmiento:  "This isn’t so much about copyright as it is about an Artist with a well-known art institution backing him up burying another artist for the exposure and the seemingly new 'idea.' Will the hypocrisy ever end?"

Wednesday, May 25, 2016

"What I found was an art world that is this closed, secretive world."

Barbara Pollack profiles Meridith Savona and the FBI's Art Crime Team.

60 Minutes did a thing on the Knoedler case this weekend

You can see it here.  Features appearances by friends of the blog (and Advanced Topics in Art Law guest speakers) Jack Flam, Greg Clarick, and Jamie Martin.

M.H. Miller has some thoughts here.  AFC points out the segment "reveals little," which is true.  I think the problem is it's impossible to explain what happened to a lay audience in a format like this. If you get it -- if you understand how implausible it was that there would just be this vast trove of undiscovered works by the giants of Abstract Expressionism -- you get it.  But if you don't see that, Anderson Cooper isn't going to convince you of it in 10 minutes.

Monday, May 23, 2016

"That magic trick illustrates the fundamental absurdity of treating contemporary art as an investment vehicle." (UPDATED 3X)

"In one simple statement, the creator took these 'assets'––ostensibly worth thousands of dollars each––and rendered them worthless to the market. So the next time you hear a silver-tongued broker explaining the wisdom of adding living artists' works to your portfolio, ask him how he'd feel about investing in Facebook if Mark Zuckerberg could suddenly 'de-authenticate' a few thousand shares any time Goldman Sachs pissed him off : )"

Tim Schneider on the Simchowitz-Mahama settlement.

UPDATE:  Brian Frye asks some good questions in the comments at Schneider's blog:  "I wonder about the metaphysics of 'de-authentication.' In other words, does it always work? And to what extent? If so, why does the market (i.e. investors) allow the artist to unilaterally determine the 'authenticity' of the work? Can you imagine a circumstance in which the market would ignore the artist's ipse dixit?"

Cady Noland is of course relevant here.

UPDATE 2:  And I should have linked to Amy Adler here:  "A recent lawsuit involving the artist Cady Noland illustrates the way in which a living artist’s disclaimer of a work, even when everyone knows it’s 'real,' can still transform it into a fake."

UPDATE 3:  A different view from Sergio Muñoz Sarmiento:  "Put simply, we don’t think this is more than another attempt by certain artist to bite the same hand that feeds them, and that feeds them well. In other words, it’s marketing ploy with little teeth, because unless your head is still stuck in the sand you’ve come to understand that it’s the collector and the art market that dictate what is a work of 'art.'"

So This Is Chrismas

"The outlook for Douglas Chrismas, the founder of one of Los Angeles’s oldest and largest galleries, seems to be growing bleaker by the day.  Sam Leslie, the forensic accountant who now runs the day-to-day operations of the gallery, has officially terminated Chrismas’s role with Ace Gallery and has filed a lengthy status report to the court, documenting millions of dollars diverted to mysterious accounts and dozens of works of art that have been moved to private storage."

"Prosecutors allege that Zukerman engaged in a complex scheme to avoid paying New York State sales and use taxes on the purchase of those paintings."

Sales tax crackdown continues.

"A settlement was reached in a skirmish over ownership of Pablo Picasso’s plaster 'Bust of a Woman,' according to a filing in New York federal court."

Breaking news.  Background here.

Friday, May 06, 2016

Tell me again about the public trust (somehow, the museum has made peace with parting with more than 600 pieces of Chinese ceramics edition) (UPDATED)

The Met is selling them at Christie's.  They have 3,600 other Chinese ceramics, so it's not like selling off 15% of them is that big of a deal.  And it's not like "the essential point of museum collections" is 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."  Oh, it is?

UPDATE:  Daniel Grant emails a very good point:

"What struck me as odd is that the Met is defending its decision to sell (perhaps awaiting criticism of its move)...

"'About 60 percent of the things we’re deaccessioning came in 1879, so there wasn’t that much scholarship, there wasn’t that much discrimination,' Mr. Hearn. 'They’ve really been extensively reviewed; most have never been exhibited or published.'"

"...while disparaging these items in advance of a sale, which probably won't bolster the prices. I think the Met should pick one direction and stick with it."

Thursday, May 05, 2016

"By digitizing and replicating objects of cultural heritage, we risk inviting a host of legal disputes over access and ownership."

An interesting piece in the Boston Globe a few days ago by Sonia Katyal and Simone Ross, on (among other things) 3D printing, art, and copyright.

Tuesday, May 03, 2016

"We are committed to rooting out tax abuses wherever we find them, especially in the art world, where the difference can be hundreds of thousands — if not millions — of dollars in lost tax revenue" (UPDATED)

NYT:  Developer Aby Rosen to Pay $7 Million in Suit Over Unpaid Taxes on Art.

UPDATE:  Tim Schneider thinks Rosen got a raw deal:  "[W]hile some dealers certainly view tax laws as made to be broken, I actually side with Rosen and Gelfand here, at least based on what's been reported. Given that transactions in the art industry can happen anywhere at any time, hanging works at home hardly means they're not actively on the market."

Tuesday, April 26, 2016

Big Fake

ARTnews has a long post-mortem on the Knoedler trial.

Saturday, April 23, 2016

If only they had some way to close this deficit

The NYT's Robin Pogrebin reports on financial trouble at the Met.  They're facing a $10 million deficit this year.  Staff reductions and reduced programming will follow.

But the important thing to understand here is that this is a choice.  They could close that deficit in a heartbeat if they wanted to.

As Berkeley's Michael O'Hare puts it:

"Wait a minute .... The Met has a collection worth at least $60 billion, thousands and thousands of objects almost none of which (by object count or square feet of picture) is ever shown or ever will be.  ... Selling just two percent ..., for example, could endow free admission forever. Selling .3 percent would cover that pesky deficit, also forever.  ... Nothing in the Met’s mission statement suggests its purpose is to accumulate as much art as possible where no-one sees it. But the Met and all the other big art museums have insulated themselves from this sort of awkward question by writing a code of ethics that forbids any museum from selling anything except to buy more art."

(For a longer version of O'Hare's argument, see here.)

Kevin Drum of Mother Jones seconds the motion:

"The art world generally believes that deaccessioning is a horror because art is a public trust blah blah blah. This is little more than meaningless word salad.  ... [I]t's hard to understand why art museums, alone among all the institutions of mankind, should be required to never sell anything they own. Perhaps this statement from the AAMD about the Delaware Art Museum's auction tells the real story: 'It is also sending a clear signal to its audiences that private support is unnecessary, since it can always sell additional items from its collection to cover its costs.'  We can't have that, can we? That would prevent museums from raising money with scary campaigns about shutting down or firing half their staff or cutting hours to the bone."

Drum also predicts what would happen if the deaccessioning taboo were ditched.

"What would happen? My guess is: nothing much. Museums that gained a reputation for doing it routinely would indeed suffer a drop in private donations, and that would act as a natural brake on the practice. Other museums would benefit, as they were freed to occasionally sell off less important parts of their collection in order to pay bills or undertake other worthy endeavors. And huge museums like the Met, with caverns full of artwork that's never shown and has limited scholarly use, could not only shore up their finances but improve the world by selling pieces to smaller, more specialized museums that would show it."

"Tisch's lawyer ... said his client realized in recent years that the painting was missing from her art studded apartment, but she wasn't sure where it was, whether in storage or out for repairs."

The Daily News on a New York state court lawsuit that presents interesting statute of limitations/laches issues.

"On April 6, Mr. Chrismas lost the keys to his gallery, after failing to make a $17.5 million court-ordered payment to settle his debts in a long-running Chapter 11 bankruptcy case."

Jori Finkel on the Ace Gallery bankruptcy.

"Los Angeles Art Dealer Is Arrested on Embezzlement Charges"

New York Times story here.

Tuesday, April 19, 2016

Cert denied in the Google Books case

Story here.  Background here.

"Why don’t many galleries list their prices?"

Paddy Johnson points to one explanation from artnet:  "So tax authorities can’t track their client purchases."  She offers another alternative:  "Isn’t this practice mostly about marketing? Luxury items frequently don’t come with a price tag attached to the piece. Part of what you purchase, when buying these goods, is the doting sales pitch that comes along with it."

Monday, April 18, 2016

Tuesday, April 12, 2016

No Soup Cans For You

Seven Warhol Soup Can prints have been stolen from a Missouri museum.  Michiko Kakutani tweets that, by breaking up the series of 10, the thieves "devalu[ed] whatever profits they would hope to make off the heist."

BREAKING: Dismissal Granted in California Resale Royalty Case (UPDATED 3X)

I'll post a link when I have one, but the District Court in California has granted the defendants' motion to dismiss (what's left of) the California Resale Royalty lawsuit on the grounds that the state statute is preempted by the first sale doctrine under the federal Copyright Act.  The court (affirmed by the Ninth Circuit) had previously ruled that the statute could not reach sales that took place outside of California.  This decision now throws out the whole statute -- even for sales within California.  Back up to the Ninth Circuit we go.

UPDATE:  News story here.

UPDATE 2:  Here is the Los Angeles Business Journal.

UPDATE 3:  Here's the decision.

"Artist Claims Copyright to Four Photos of Robert Mapplethorpe in $65 Million Lawsuit"

Also while I was away, a "poet, actor, photographer, and makeup artist" named James R. Miller filed a lawsuit against the Mapplethorpe Foundation (and others) claiming copyright ownership in four Mapplethorpe works created in 1979.  Benjamin Sutton has the details here.

The first hurdle Mr. Miller is going to face is the statute of limitations:  he claims to have known the photos were attributed to Mapplethorpe since 1988, and that he has "attempted several times over the last 27 years to correct the historical and artistic record."

You may want to brace yourself for this

But the Tennessean reports that the Stieglitz Collection has returned to Fisk University after a two-year stint at the Crystal Bridges Museum.  Not only that, it returns to a newly renovated space at the university.  This tragic story just keeps getting worse.

Swedish Model

Art F City notes a Swedish court ruling against Wikimedia, holding that "images of public art are not public domain, but belong to the artists who created the original works" and asks if "a policy like this in the US" would make “Cloud Gate” selfies illegal.  The answer is that that is the policy in the US -- i.e., the copyright to works of public art belong to the artists who created them.

Another reminder about the idea/expression distinction

Via Rebecca Tushnet.  Earlier example (among many) here.

"It hardly comes as much of a surprise that amid the high-profile scandals and tales of political corruption in the Panama Papers, art is something of a constant" (UPDATED)

I was away last week (I had a tip on the location of Mr. X, but sadly it turned out to be a false lead), but the big news was that the Panama Papers include a ton of art-related stuff.  Dig in here, here, and here.

UPDATE:  Tyler Cowen on a more general question raised by the leak.

Thursday, March 31, 2016

Messier (UPDATED)

Counterclaims in the Simchowitz suit mentioned here.

UPDATE:  AFC:  "Everyone in this case sounds insane."

Wednesday, March 30, 2016

Is a Popemobile held in the public trust?

If not, why not?

The church is a 501(c)(3) organization, just like museums are.  Does that mean that "we" own all its assets?  Of course not.  So why is it any different for works of art?

"Replace 'Caspersen' with 'Knoedler' in this @matt_levine column and you have some great art-market analysis"

Says Felix Salmon.  The column ("Real Investment Adviser Sold Some Fake Investments") is here.

Tuesday, March 29, 2016

"Local activists see it as a precious piece of Chicago’s waterfront, a place of open views and public ownership."

The New York Times had a piece a couple days ago about the battle over the museum George Lucas wants to build in Chicago, where, amusingly (to me anyway), supporters of the museum have bumped up against the real "public trust doctrine."  (As I explain in my chapter in this collection, there is a public trust doctrine, but it's not at all what the Deaccession Police think it is. For them, it's just a phrase they've latched onto to achieve their policy goals.)

Sunday, March 27, 2016

Monday, March 21, 2016


The NYT's Randy Kennedy reported last week that the National Academy -- "the nation’s oldest continuously operating artists’ society" -- is selling its Fifth Avenue home and moving to ... no one knows where.

As far as I can see, this has been greeted mostly by crickets.  Lee Rosenbaum has been attempting to work up some outrage, but so far no one seems to be following her lead.  Maybe it's out there but I missed it.

Compare that to the apoplectic reaction several years ago when the museum sold two of the more than 7,000 works in its collection, with the same goal in mind:  to give itself "the financial freedom to think more creatively about how to exist in the 21st century."

Why is the one sale not a big deal and the other the end of the world as we know it?

Are the buildings not "held in the public trust" to exactly the same extent as the artworks?

How do some assets come to be held in the public trust and others not?  What is the mechanism?

It's almost as if the notion that the works are held in the public trust is a convenient fiction.

"Sandy-Related Art Damage Suit Against Christie's Is Revived"

The New York Law Journal [$]:  "The panel cited Kimberly-Clark Corp. v. Lake Erie Warehouse, Div. of Lake Erie Rolling Mill, 49 AD2d 492 (4th Dept 1975), in which that court noted that while the UCC permits a warehouseman to limit the amount of liability, it cannot completely exempt itself from liability as imposed by UCC Article 7."

You can read the decision here.

Thursday, March 17, 2016

Whose art is it?

Two views of the question, from Kanye West and Richard Prince.

Prince's position is currently being tested in the courts.

Monday, March 14, 2016

"Will report back to you all in a generation to see if my instincts were right."

Tim Schneider on the Artist Pension Trust, which I mentioned last week:

"Personally, I'm torn about this concept. On the one hand, I'm in favor of anything that will get artists to invest and, as a result, gain some of the same financial security that workers in other sectors of the labor market enjoy. On the other hand, my gut tells me that most, if not all, artists would be better off if they just opened an IRA, used the proceeds from 20 sales to buy a low-cost S&P 500 index fund, and re-invested the dividends until retirement."

Disaster averted

A couple years ago, I mentioned a New York state court decision that "could wreak some serious havoc on the world of authentication litigation."  Briefly, the First Department had held that, unless a plaintiff can produce an expert who examined the work before he bought the work and can testify that it’s the same work that he now has in his possession, he would lose.

Now, in a subsequent decision in the same lawsuit, the First Department narrows that rule to the specific (odd) facts of this case:

"Contrary to defendants' contention, our decision need not have disastrous effects on the art market. We limit both this decision and our decision on the prior appeal to the facts of this case, i.e., a situation where defendants did not claim until many years after the sale and consignment that the artworks were forged, and they were unable to produce the people who had custody of the art between the time defendants sold it and the time they returned some of it to the United States; and plaintiff claimed that defendants, or the non-produced custodians of the art, forged it; and the custodians resided in a country that did not abide by the Hague Convention, so that plaintiff was unable to obtain evidence from them."

So if you've got a case with facts like that, you're in trouble.  Otherwise, as you were.