"The latest scandale du jour is the Baltimore Museum of Art’s deaccession plans. While legitimate questions have been raised about the upcoming sale of three paintings, the castigation is redolent with racial privilege. In a particularly ghoulish piece of commentary ('As night follows day, natural disasters bring out the scammers ready to exploit public confusion and fear'), the Los Angeles Times’s Christopher Knight recently complained about 'mission-driven' deaccessions—i.e., selling works to finance increased equity and diversity for both museum employees and audiences, by raising salaries, restructuring staffing, offering free admission, and expanding museum hours. Yet the alternative is ensuring that the office and the visitors remain white, while security and maintenance stay Black and brown. It is effectively an argument for maintaining white supremacy at museums."
Thursday, December 31, 2020
"One of the few silver linings to emerge from the pandemic was the announcement, back in April, that the American Alliance of Museum Directors had relaxed its guidelines on deaccessioning. For now, museums can sell works to pay for operating expenses. Few have followed through, however—perhaps because art-world pundits, once again, responded with conservative alarm."
LA Times: "For the art world, 2020 was the year that the Black Lives Matter movement spurred a deeper conversation about inclusion and equity, ultimately leading some museums to sell off works by certain artists — usually white, often male — ostensibly to diversify their permanent collections."
Tuesday, December 22, 2020
"On Friday, Sotheby’s filed a 27-page memo in New York State Supreme Court asking a judge to dismiss the case."
Eileen Kinsella at artnet news: Sotheby’s Pushes to Dismiss the New York Attorney General’s Lawsuit Over Its Alleged Role in Helping a Collector Evade Taxes. Background here.
Thursday, December 17, 2020
"It cannot be seriously disputed that the COVID-19 pandemic is a natural disaster. One need look no further than the common meaning of the words natural disaster."
Sunday, December 13, 2020
Two of the three New York Times art critics mention the BMA deaccessioning controversy in their year in review lists
Holland Cotter says "last May the Baltimore Museum of Art planned to auction works from its collection to pay for — among other things — equitable staff salaries, only to be hit by a firestorm of protests," and that they had "legitimate arguments to make, but didn’t make them convincingly, and had to pull back."
And Jason Farago says "on deaccessioning, I’m not a strict constructionist. Selling art that hasn’t been shown for decades can sometimes be justified. But strategically raiding your galleries for cash is a scandal; equity and preservation are not at odds; and woke austerity is still austerity."
Cotter's list includes a number of other art law related things: "continuing a trend from 2019, museum workers, voicing grievances based on racial discrimination and economic exploitation, have increasingly sought to unionize"; "after three years of foot-dragging, the French Senate signed off on a bill in November promising to return a group of looted objects to Africa"; and "this past July, after years of advocacy, a bill proposing the establishment of a National Museum of the American Latino in Washington was finally passed by the House of Representatives."
Saturday, December 12, 2020
Sunday, December 06, 2020
"A Baltimore museum tried to raise money by selling three pricey artworks. It backfired stupendously."
Sebastian Smee and Peggy McGlone go over the BMA saga in the Washington Post. They end up here:
"But there’s one thing the Baltimore episode made clear: even the most noble of causes, including paying the mostly minority guards a living wage and improving access for the community, can’t be funded by monetizing the collection."
Leaving aside that there is one noble cause that everyone agrees can be funded by monetizing the collection (buying more art), that really is the question, isn't it? Is the correct moral principle that, no matter how noble the cause, it can never be funded through the sale of art?
Saturday, December 05, 2020
AEA's Harry Fisher-Jones on The deaccessioning debate: 1990-2020.
"The sale is the second since the summer, when MOLAA announced an online auction of 167 artworks from Latin American and Latino artists to benefit a COVID-19 recovery fund. The museum has been shuttered since March."
Christopher Knight in the LA Times: Museum of Latin American Art is selling dozens of works from its collection.
The story points out that "according to financials posted on the museum’s website, in 2019 MOLAA already faced a deficit of $340,617 on an annual budget of nearly $3.7 million."
There's a brief mention at Courthouse New Service here. This is the one where they gave the artist 90 days to remove the mural back in the summer, but he claims in his complaint (which you can read here) that it can't be removed without destroying it.
Tuesday, December 01, 2020
Friday, November 27, 2020
Wednesday, November 25, 2020
"When the BMA tried to diversify its collection, it learned just how shallow the art world’s commitment to social justice can be."
Sunday, November 22, 2020
"Restitution is widely considered a just and appropriate form of deaccessioning. Might there be other circumstances under which deaccessioning could be considered a form of restitution?"
Very interesting Artforum piece by Julie Pelta Feldman on the Baltimore Museum deaccessioning controversy.
She observes that "the vitriol aimed at BMA director Christopher Bedford and the curators responsible, Asma Naeem and Katy Siegel, has been particularly bitter," mentioning in particular criticisms from Brenda Richardson ("nothing short of horrified"), Christopher Knight ("The sleaze is almost too hard to wrap your head around"), and Martin Gammon (an "onslaught of unbridled commodification"). Summing up the art world reaction, she writes: "Deaccessioning, many critics believe, should not be instrumentalized, no matter how worthy the museum’s plans for its yield."
"Yet," she then points out, "restitution, too, is a type of deaccessioning: through it, an object is removed from the otherwise inviolate realm of a museum’s permanent collection and finds a new home. Unlike many other instances of deaccessioning, this occurs not because the object itself is in some way flawed, damaged, or otherwise undesirable, but because it is the right thing to do. Indeed, restitution would mean little if the artworks and artifacts in question were not precious and important. It represents an acknowledgment of the colonial pillaging that undergirds many of the world’s finest museums, a demonstration of respect to the people who were robbed, an apology to their descendants, and a commitment to redress historical abuse."
She goes on: "For decades, museums that collect modern art have privileged certain artists and art histories at the expense of others. Collection diversification is not simply a worthy goal, it is—like restitution—a necessary correction of inequities embedded deep within museums’ structures, histories, and collections. ... Museums that deaccession works to diversify their collections indeed give up a piece of themselves, but they do so in pursuit of a new wholeness. ... [I]f restitution means surrendering the ownership of an artwork—even or especially a treasured one—in pursuit of justice, the BMA’s new plan might also be understood this way. Critics of deaccessioning worry that curators will succumb to mere fashion. But women and artists of color are not a trend, and neither is a security guard’s right to a living wage."
I suspect one response to this, from those many critics, will be "yes, those are worthy goals, but let the board members pay for them."
A David Hockney portrait sold by the "financially strapped" London Royal Opera House at Christie's for $17 million last month has ended up ... at the London Royal Opera House. It was bought by the chair of the Opera House's board of trustees. "He also has plans to loan it to the reopening exhibition of London’s National Portrait Gallery, where [he] is a trustee, in 2023." "As the Chairman of the Royal Opera House and the National Portrait Gallery," he says, "I care deeply about the arts being as accessible as possible and their educational value. I decided to participate in the auction to secure the painting for the British public."
Tuesday, November 17, 2020
"The artists argue the removal of the mural was in violation of their rights, specifically the legally-required preservation of their work, under the Visual Artists Rights Act" (UPDATED 2X)
UPDATE: Brian Boucher picks up the story at artnet. He gets quotes from Sergio Muñoz Sarmiento ("Do these property owners simply wish to not seek legal advice from lawyers? Or, if they do, do they simply disregard the advice?") and Amy Adler ("[VARA is] incompatible with deep-seated American notions of what it means to own property, and the idea that if you own something, you can do whatever you want with it").
UPDATE 2: Brian Frye says "the discussion of 'recognized stature' should be interesting in the case of this work." Andrew Gilden adds that it's "really hard to assess [a] VARA claim when you subjectively mourn the loss of a particular queer art/space but fear that the space lacks sufficiently 'recognized stature' within the community more broadly."
Monday, November 16, 2020
The Guardian on the UK version of the deaccessioning debate.
It includes the following: "In England, the rules about these matters are laid down by the Museums Association’s code of ethics, used to set Arts Council England’s standards, and they state that artefacts 'should not normally be regarded as financially negotiable assets'."
Obviously that puts a lot of weight on normally. In the U.S., by contrast, the "ethical" rule is artworks should not
normally ever be regarded as financially negotiable assets unless the plan is to use the sale proceeds to buy other artworks in which case feel free to regard them as financially negotiable assets.
Saturday, November 14, 2020
The New York Times reports that the Village of Kinderhook says a Nick Cave text-based work installed on the facade of Jack Shainman's upstate gallery is "a sign, and hence in violation of local code, and wants it removed."
Friday, November 13, 2020
Carolina Miranda has a column in the LA Times on the (now paused) Baltimore Museum of Art deaccessioning plan. It's of the "the goal was absolutely commendable" but "the methods used to achieve that worthy goal were questionable" genre.
One thing caught my eye, and I'm not sure how much (if anything) to read into it. Instead of saying that the works owned by museums are "held in the public trust," as is typical, she writes:
"A museum’s collection is held in the public interest — think of it as a shared cultural resource — and shouldn’t be treated as an asset. Selling off works to make operational changes dips into that resource — in this case, without first reassessing budget priorities or pressing wealthy benefactors to pitch in."
Friday, November 06, 2020
Bloomberg: "Sotheby’s allowed $27 million of art to be purchased tax-free by Porsal Equities ... even though the auction house knew the client wasn’t an art dealer but was instead a collector buying for his personal use, the state said in a lawsuit filed Friday. Only dealers planning to resell art qualify for exemptions to city and state sales tax, the state said."
Thursday, November 05, 2020
Sunday, November 01, 2020
One talking point the deaccession police seem to have coalesced around recently is that, while they agree with the goals behind the Baltimore sale, the right way to achieve those goals is for the board members to pony up the cash, rather than by selling art. Glenn Adamson summarized that position (on his way to critiquing it) as "diversifying collections, while a worthy goal, should be paid for by trustees, not through high-profile art sales." Hilarie Sheets's recent NYT article quotes a former Baltimore board chairman's criticism of the museum for "taking what seems to be a shortcut approach to monetize the art instead of doing the more difficult work of fund-raising and development." And the National Review's Brian T. Allen (former director of the Addison Gallery) puts it this way: "If the rich honkies want to strike a blow for equity, they should open their own wallets. ... The director, if he wants to buy art by artists based on race or gender or nationality, should go out and raise the money from donors."
My question is how come no one ever makes this argument when museums sell work to buy other art? How come nobody says those acquisitions should be paid for by trustees, not through art sales? Why isn't that seen as taking a shortcut approach of monetizing art instead of doing the more difficult work of fund-raising and development? Why don't we say, if a director wants to buy art (not just by artists based on race or gender or nationality, but any art), she should go out and raise the money from donors?
Hilarie Sheets in the New York Times on the different responses in the art world to the announced sales by the Brooklyn Museum and the Baltimore Museum of Art: "If the disparate reactions to the two sales are a bit bewildering, welcome to the world of deaccessioning."
She mentions the following as possible explanations for the different reactions. In Brooklyn, "the [financial] need was acute." They were (according to their director) "extremely conservative" in their selection of objects for sale: the Monet, for example (the sale included works by Monet, Matisse, and Miró), was "not one of his great works nor close to the best in our collection." The museum "has been cautious in how the money would be allocated in its collection’s care fund. 'We didn’t just say, "Here’s all the salaries for the conservators"; we estimated the time they would actually spend caring for an object.'"
Baltimore, on the other hand, "had a balanced budget and no layoffs or furloughs." The intention of the sale is "to raise funds for more equity-based initiatives at [the] museum — in a city with a 68 percent Black population," to "acquire more work by underrepresented artists and to create an endowment for collection care that would free up about $2.5 million in the budget for staff-wide pay increases and other equity-oriented measures." Arnold Lehman, a former director of both museums, is quoted as saying the works involved are "masterpieces — as good as you’re going to get of late Warhol, as good as you’re going to get of Marden and a fabulous Still.” The Still, "a gift of the artist who lived in Maryland late in his life, is also the only work of his in the collection."
Sheets says the AAMD "expressed no concerns at first" -- "'They are in line with how A.A.M.D. has defined this resolution for this period of time,' its executive director, Christine Anagnos, said at the time of the announcement" -- but "the blowback was swift from art critics, historians and museum professionals." She quotes from the resignation letter of a former board chairman (and now honorary trustee), Charles Newhall III, who says "I certainly do not believe that one sells masterpieces to fund diversity," and another former trustee who opposes "taking what seems to be a shortcut approach to monetize the art instead of doing the more difficult work of fund-raising and development."
She ends, however, by quoting Rev. Dr. Alvin C. Hathaway Sr., of the Union Baptist Church in Baltimore, who asks “Is the value in the art or is the value in the accessibility of others to have access to the art and to have their art valued as well?," and she gives the last word to Christopher Bedford, Baltimore's director:
"As an institution, we value the perspectives of colleagues and understand the importance of adhering to the professional guidelines that govern our field. I do believe, though, that the moment has come to more deeply consider the standards by which museums operate. The turmoil we are experiencing is not simply financial; it is the result of entrenched systems that cannot sustain the moment or the future. Our communities are calling us to action, to move beyond words and symbols."
Wednesday, October 28, 2020
"In a shocking last-minute move, the Baltimore Museum of Art has 'decided to pause' its plans to sell three works from its collection with Sotheby’s .... The news was announced by the Maryland institution just two hours before two of the works were expected to hit the auction block in New York."
Breaking news here.
Monday, October 26, 2020
Thursday, October 22, 2020
Hard to keep up with all the Baltimore commentary. I'll try to round a bunch of it up here and update as they come in.
Saturday, October 17, 2020
Thinking more about Mark Stryker's excellent tweet yesterday -- where he basically says in one sentence what I've been trying to say here for about 12 years -- and Everson board president Jessica Arb Danial's excellent piece, I'm reminded of the initial question I had about this whole issue, as quoted in Jori Finkel's New York Times piece all those years ago:
"Donn Zaretsky, a New York lawyer who specializes in art cases, has sympathized with the National Academy at [The Art Law Blog], asking why a museum can sell art to buy more art but not to cover overhead costs or a much-needed education center. 'Why should we automatically assume that buying art always justifies a deaccessioning, but that no other use of proceeds — no matter how important to an institution’s mission — ever can?' he wrote."
I still think that's the right question.
We know, as Stryker reminds us, that museums sell work whenever they want, so it cannot be the case that they are held in public trust. The only issue is use of proceeds.
The Jessica Arb Danials of the world think there is another use of proceeds, besides buying art, that can justify a deaccessioning -- namely, social justice, equity, diversity, representation.
Her opponents disagree with that view.
Isn't that what it really comes down to?
Friday, October 16, 2020
Former Detroit Free Press arts reporter Mark Stryker tweets: "in future, critics will point to hypocrisy of museums selling whenever they want but crying 'public trust' only when convenient. The critics will be right."
"While fine arts experts and critics may try to shame the Everson and other like-minded museums for the decision to deaccession for the purpose of creating an endowment to diversify the collection, these voices are echoing decades of status quo art history textbook and gallery etiquette, rather than the realities we are living today."
"To seek to impose one’s ideals of an art museum, without considering how significantly the world has changed these last few decades, let alone these past few months, is nothing short of tone-deaf. Every one of us, especially in the arts, should be acting. The Everson is resolute in its decision to represent our community and will not miss out on an opportunity to create meaningful change.
In the "other" big deaccessioning story, the President of the Everson board defends the decision to sell a Pollock and use the proceeds to diversify its collection, including also the following:
"We see our role in this community as being much greater than retaining a single work of art, a status quo or the rigid sensibilities of a few critics, commentators and professional associations. We have something bigger in our hearts and minds, and it includes contributing most meaningfully to a community that is divided and hurting, preserving the talent of diverse artists still fighting barriers for entry and igniting the aspirations of young people who need to see themselves represented by artists."
Background, including comments from one of those critics, here.
The LA Times: "A group of 23 prominent supporters of the Baltimore Museum of Art, including former trustees at the BMA and the nearby Walters Art Museum, has written to Maryland Atty. Gen. Brian Frosh and Secretary of State John C. Wobensmith to demand that they intervene to stop the impending sale of paintings from the storied museum’s collection."
The museum's response -- including that "deaccessioning artworks from a museum's collection is a standard practice" -- can be read here.
The Baltimore Sun's editorial board weighs in here: "it’s an understandably painful pill for some to swallow. And change in general is uncomfortable. But we prefer to think of it not as closing a door on certain works by these white artists of the past, but instead opening the door to including diverse artists of the future, who would not have had the opportunity to be seen and appreciated in the same way in any other time in history, along with the new audience they could attract."
Tuesday, October 13, 2020
"Museums are not mausoleums or treasure houses, they are living organisms, oriented to the present as well as the past, and that is where the fundamental disagreement lies."
Tuesday, October 06, 2020
Still catching up on blogging, and last week's big story was the Baltimore Museum of Art putting three major paintings up for sale and planning to "use its $65 million windfall to help advance salary increases across the board, invest in diversity and inclusion programs, offer evening hours and eliminate admission fees for special exhibitions." The New York Times story is here. Eileen Kinsella has more here.
Christopher Bedford, the Museum's director, says "this is done specifically in recognition of the protest being led by museum staff to be paid an equitable living wage to perform core work for an institution with a social justice mission — that symmetry between who we say we are and what we actually are behind our doors."
As the Times points out, the Museum is "taking advantage of the Association of Art Museum Directors’ temporary pandemic-era loosening of its deaccessing guidelines. ... The B.M.A.’s game plan is ... in line with how the museum association defined its new resolution active until April 2022, said Christine Anagnos, its director. The first $10 million of proceeds from the ... sale will go into the museum’s endowment fund for acquisitions, with an emphasis on artists of color of the postwar era. The rest of the proceeds, approximately $55 million, will be used to create a new endowment for direct care of the collection. This fund should generate approximately $2.5 million annually in income, to cover the salaries of curators, registrars, conservators, preparators, art handlers, administrative staff and fellows, and other collection-related expenses."
I discussed that temporary pandemic-era loosening of the AAMD's deaccessioning guidelines here.
Monday, October 05, 2020
Story here. Background here. Brian Frye tweets: "I think VARA is terrible policy & I think the underlying decision was wrong on both the merits & the remedy. But the defendant was defiantly unsympathetic, so..."
UPDATE: New York Times story here.
Sunday, September 20, 2020
"Today came news that the cutting-edge warehouse, opened by the real estate firm Carye Equities for a reported $40 million and managed by shipping industry experts, is shutting down for good."
... an interesting conversation between him and another friend of the blog, artist/lawyer Alfred Steiner, at Brian's excellent Ipse Dixit podcast. Here's a good recent example of a Steiner project -- a Public License for Criminal Use.
... is that the Everson Museum of Art in Syracuse is deaccessioning a Jackson Pollock -- estimated at $12-18 million -- and will use the proceeds to diversify its collection. The Baltimore Museum did something similar a couple years ago.
I would have guessed that, because the sales proceeds are being used to buy more art (among other reasons), this would be non-controversial, but surprisingly (to me at least) it's been met with a good deal of criticism. Both Christopher Knight and Lee Rosenbaum have come out strongly against it.
In response to Knight's piece, Deaccessioning Hall of Fame Scholar-in-Residence Brian Frye tweets: "Christopher Knight, the Inspector Clouseau of the Deaccessioning Police, now has a bee in his bonnet about the Everson Museum selling a Pollock in order to diversify its collection. Amusingly, he can't even invoke the (meaningless) AAMD deaccessioning rules, which expressly allow museums to sell works in order to buy different works. All he can do is whine that the museum is selling a work he happens to like in order to buy something else. Tell me more about how 'diversity is important, but...'?"
Everson Director Elizabeth Dunbar says:
"The murder of George Floyd and a string of senseless killings of Black lives have propelled us into urgent discussions surrounding the Museum’s role and responsibility in fighting racism inside and outside our walls. Now is the time for action. By deaccessioning a single artwork, we can make enormous strides in building a collection that reflects the amazing diversity of our community and ensure that it remains accessible to all for generations to come."
In response, Knight says this approach -- selling work "to the highest bidder [as a] way to bring racial and gender equity to the institution going forward" -- is "balderdash. The Everson would need to unload half of its collection for it to reflect the diversity of a city that is 45% nonwhite, according to the most recent census estimate." He also says the trend of museums "sell[ing] art by blue-chip white artists to create a diversity acquisition fund" is a "terrible" one: "The goal of diversifying white patriarchal patterns of museum art collecting is hugely important. This sort of quick fix belies the seriousness."
UPDATE: A local response to Knight here.
"It is the kind of sale that once would have engendered criticism, perhaps even sanctions .... But it is now completely within the parameters of loosened regulations ...."
I've been behind on my blogging the last few weeks, but the big news of course was the announcement by the Brooklyn Museum that it would be selling 12 works -- including paintings by Cranach, Courbet and Corot -- to raise funds for the care of its collection.
As the Times article points out, the Museum is the first major institution "to take advantage of" the (temporary) change in the AAMD's deaccessioning guidelines, announced in April.
One point I haven't made before about that change is how it completely undermines the public trust argument against deaccessioning. If you really believe that a museum holds its collection in the public trust -- as if the museum is the trustee and the public is the beneficiary -- then how does a change in policy by some third-party organization release the works from the public trust? Where does the AAMD get that power? Who made it the arbiter of what is or is not held in public trust?
The other thing that undermines the public trust argument against deaccessioning, as I've said a million times here before, is that museums sell works all the time, so obviously they can't be held in the public trust. If the Museum in this case had announced it was selling the same 12 works and putting the sales proceeds in a bank account labeled "acquisition fund," no one would have batted an eye. But using the same proceeds to care for its collection brings out the usual ritual denunciations.
Saturday, August 29, 2020
Tuesday, August 25, 2020
"According to a lawsuit filed in federal court Friday, Frederick 'Hank' Robar is requesting no less than $7 million in damages from the village as the infamous 15-year dispute over his 'toilet gardens' enters its likely most contentious chapter to date."
There's a headline for you. Story here.
One of his claims is under VARA.
Monday, August 17, 2020
"The style we’re after is very much inspired by your work and that of other artists like Steven Paul Judd and Frank Hyde"
The Art Newspaper: Redbone music video sparks artist dispute over copyright infringement.
Saturday, August 15, 2020
"All buyers must also sign a contract with extensive conditions. They must agree not to resell the work at auction for at least five years; if they do want to sell, they must give the artist right of first refusal; and, if they sell to someone else, they have to give 15 percent of the upside back to the artists."
Arlene Dávila tweets: "Great example of how curators can advocate for artists' resale royalty rights. Let's stop the speculation & the unequal model where only collectors/speculators benefit from the evaluation of artists' works."
The Christopher Sprigman view of this would be that it will to some extent suppress the price buyers are willing to pay for the works in the auction (i.e., that you would pay for more for an asset that comes with no strings attached than you would for the same asset with these conditions).
Sergio Muñoz Sarmiento: "One thing that really annoys me is how articles like this get written with absolutely no mention of well-known historical precedents, like Robert Projansky’s and Seth Siegelaub’s The Artist’s Reserved Rights Transfer And Sale Agreement, from 1971. God forbid there would be any mention of Hans Haacke or Michael Asher."
A while back, musician and art collector Swizz Beatz had a proposal for an auction house-based resale royalty scheme, mentioned here.
Wednesday, August 12, 2020
"The Albright-Knox Art Gallery is suing the architects who planned its warehouse expansion five years ago, alleging they failed to design a structure that would prevent condensation from occurring inside that could damage artwork and other precious items."
Buffalo News story here.
Tuesday, August 11, 2020
"Staten Island artist Scott LoBaido has a lawyer and is ready to take on the de Blasio administration in court if the Department of Transportation continues to pressure him to remove his thin blue line outside of the 122 precinct."
The artist says he "painted the blue line as a way to stand in solidarity with the NYPD after Mayor Bill de Blasio announced he would paint 'Black Lives Matter” street murals across the five boroughs on the heels of nationwide racial injustice protests." His lawyer argues: "Cites can do one of two things, they can either paint nothing and take no position, or they can allow everybody to paint … their own political points of view on the streets. But they can’t selectively say ‘my political opinion is going to be allowed to be painted and yours is not, and if you paint yours, you’re going to be subject to fines, penalty, imprisonment."
"In a statement to the Daily News, he said: 'It may be left over from my divorce, but I don’t have such a bill.'"
"Rudolph Giuliani, the former New York City mayor and attorney to Donald Trump, has been hit with a lawsuit in New York State Supreme Court by an art advisor who says he failed to pay for her appraisal services, which he received during his contentious divorce from Judith Nathan in 2019. The advisor, Miller Gaffney, runs the firm MGAA. She is alleging that Giuliani owes more than $15,700 for services rendered."
Sunday, August 09, 2020
Wednesday, August 05, 2020
Tuesday, August 04, 2020
Monday, August 03, 2020
"G&M’s petition is the first direct challenge to VARA’s constitutionality, and the Supreme Court’s response to the petition should be closely watched by property owners—including retail stores that may commission street art to adorn their retail space, as well as the art world generally."
Thursday, July 30, 2020
Wednesday, July 29, 2020
"The report said the financial transactions were enabled by the secrecy and anonymity with which the art market operates and it called for tighter rules to force greater transparency." (UPDATED)
"Consistent with VARA, VLS will be reaching out to the artist to determine if he would like to remove the mural within 90 days. If the artist chooses not to remove the mural, the mural will be painted over or otherwise removed. In the meantime, the mural is being temporarily covered."
"Painted and installed in the VLS Chase Community Center in 1993, 'The Underground Railroad, Vermont and the Fugitive Slave' 'celebrates the efforts of black and white Americans in Vermont and throughout the United States to achieve freedom and justice,' [the artist's] website says. ... [T]his summer, some current students said the mural 'perpetuates white supremacy, superiority, and the white savior complex,' and that the 'the over-exaggerated depiction of Africans, ... is eerily similar to Sambos, and other anti-black coon caricatures.' VLS on Friday said the Board of Trustees agreed with their concerns ..., but also would allow [the artist] a chance to remove the mural to comply with the Visual Artists Rights Act."
Related stories here and here. The Roberta Smith position -- that "once art has been made and released into the often choppy flow of life, it should stay there" -- seems to be losing ground.
Tuesday, July 28, 2020
"We liked this variation because it addresses some of the criticisms of the Siegelaub-Projansky contract (that only successful artists benefit from its use), and that it redistributes wealth to produce social good ...."
If we assume the problem a resale royalty is meant to address is the unfairness to the artist that results when a work significantly increases in value from its first sale ... I'm not sure how this solves that problem. This feels more like a tax on the sale proceeds, with the taxes earmarked for charity (albeit one the artist gets to designate). It's like a consolation prize: the artist herself doesn't get to share in the increase in value, but a charity she likes does. If you thought someone owed you $1,000 (and I think that's part of the case for resale royalties: that the artist has a moral claim to a share of the proceeds her work generates) and they said they wouldn't pay it to you but would instead give it to a charity of your choice, is that the same thing? Would that make you whole? I think you'd feel it was better than nothing, but, depending on how strong your connection to the charity is, not quite justice.
Friday, July 24, 2020
"G&M Realty ... filed a petition calling a provision of the 1990 Visual Artists Rights Act (VARA) unconstitutional, stating that language in the act is too vague and infringes on the rights of property owners."
Wednesday, July 22, 2020
"Each of the former workers is expected to receive about 10 weeks of pay, said Daniel B. Rojas, one of the lawyers who represented them."
The settlement costs them about $200,000, plus they agreed to pay $70,000 in legal fees to the employees' lawyers.
Friday, July 17, 2020
Previously mentioned here.
Tuesday, July 14, 2020
Sunday, July 12, 2020
"The lawsuit could serve as a cautionary tale ... for galleries moving more heavily into online sales."
This is interesting:
"Lipsky is suing under New York State’s 1984 Artist Authorship Rights Act, ... a precursor to the 1990 Visual Artists Rights Act .... Megan E. Noh, a partner at the New York law firm Pryor Cashman who is representing the artist, says that the federal statute 'does not apply to the distortion of images of artworks but only to the physical distortion and destruction of the actual work,' while the older New York law expressly covers reproductions, such as photographs used for sales purposes."
Friday, July 10, 2020
"The court filing describes a scheme involving six-figure deals, wealthy buyers and elegantly faked artwork that fooled some of the country's top art experts."
Hirschl & Adler is among the alleged victims.
Thursday, July 09, 2020
"Nahmad received a WhatsApp message from Russian magnate Leonid Friedland, the CEO of Phillips’s parent company, noting that the guarantee could be cancelled in the case of 'natural disaster, fire, flood, general strike, war, terrorist attack… or chemical contamination.'"
"The controversy in Lexington, Ky., is similar to one at a San Francisco high school, where a series of murals depicting the life of George Washington upset students and parents because they showed scenes of slaves at work in the fields and barns of Washington’s Mount Vernon and, in one, Washington pointing westward over the dead body of a Native American man."
On the similar San Francisco case -- where "the high school’s alumni association later sued, and there has not yet been a final conclusion in the legal battle" -- see here.
The plaintiff in the Kentucky case is Wendell Berry — "the writer, farmer and longtime Kentuckian" and whose wife (and co-plaintiff) is a niece of the artist who painted the mural.
Here is the complaint.
Interestingly, "at the center of the Berrys’ lawsuit is the argument that the mural is held in trust by the university, on behalf of the public."
Held in the public trust!
Kentucky-based conceptual law professor Brian Frye tweets: "I will confess that I see no basis for standing nor any viable claim. Removing the mural may or may not be the right call, but it's up to the University."
Monday, July 06, 2020
"Bruguera, who has been detained numerous times for speaking out against Cuba’s authoritarian regime and its censorship of the arts, spent 10 hours in jail before being released."
Saturday, June 27, 2020
"A Charles White Drawing Went Missing From Howard University. After 40 Years, It Appeared at Auction—and Now Howard Wants It Back"
Saturday, June 20, 2020
He views it as a species of hoarding. I've had the same thought myself. As have others.
UPDATE: Good two sentence summary here: "His takeaways will not please museum traditionalists. First, he contends, it’s shady that museums get to avoid valuing their art collections in financial statements—and it’s even more concerning that institutions would rather let go of staff than objects, especially when most of the items are just squirreled away in storage."
UPDATE 2: Hoarders episode 2 here.
UPDATE 3: Deaccessioning Hall of Fame Scholar-in-Residence Brian Frye responds here.
Thursday, June 18, 2020
"He used his cell phone constantly, took tennis lessons several times a week, frequented a nearby coffee shop, and become involved in animal rescue efforts. He even adopted a dog of his own." (UPDATED)
And some choice words from Kenny Schachter.
Also on the criminal law docket, collector Angela Gulbekian, "who left the U.K. ahead of trial on theft charges was arrested in Portugal."
UPDATE: More on the Gulbenkian story from Sarah Cascone here and Alex Greenberger here.
Wednesday, June 17, 2020
"Del Pesco then reconnected with an old friend, Lauren van Haaften-Schick, a curator and writer who was researching this very topic for her PhD dissertation at Cornell University. Along with the art lawyer Laurence Eisenstein, she helped draft a document that designates that 15% of resale profits go to a charitable organisation of the artist’s choice. The agreement is available online at artistcontract.org, and will soon be promoted by Kadist Art Foundation."
I participated in a really interesting roundtable with van Haaften-Schick on the subject of resale royalties a couple summers ago. Link here.
"However, we do make a distinction when a third-party entity wants to take advantage of Chris Burden’s artwork and make money off of it in a way that is not aligned in the Chris Burden Estate’s interest, and in this case that commercial distinction is what made it very important for us to actively assert our rights."
Monday, June 15, 2020
"When his schemes began to unravel, Philbrick allegedly fled the country. Now he is in U.S. custody and facing justice."
And traveling in the other direction, Mary Boone has been released from prison.
Wednesday, June 03, 2020
Monday, June 01, 2020
"Inevitably, the AAMD’s response to its member community’s urgent needs will be simultaneously criticized as opening the floodgates to sell off priceless treasures meant to benefit the public ..."
Megan Noh on the recent changes to the AAMD's stance on deaccessioning, which she says "are far from a panacea to the museum communities’ current woes: these special dispensations are narrow, subject to pre-conditions and external legal requirements, and must be implemented in keeping with broader ethical and policy considerations."
Wednesday, May 27, 2020
"Now, the insurance company that reimbursed Christie’s after the auction house paid Wynn is suing the contractor it blames for the costly accident that gashed a hole in the masterpiece."
Tuesday, May 26, 2020
The district court dismissed the case in 2018.
Now the Ninth Circuit has reversed. You can read the decision here.
The main grounds for reversal had to do with the issue whether the defendant had to have known the specific identity of the plaintiff at the time of the allegedly defamatory statements (answer: it did not), but the Court also threw in the following:
1. Rejection of the district court’s conclusion that a jury could not conclude that certain of the statements at issue -- which remember were typical authenticity statements -- implied “an assertion of objective fact under the circumstances." In other words, a statement that a work is inauthentic can be considered an assertion of fact for purposes of a defamation claim.
2. Rejection of the argument "that an assertion that a painting is a fake is categorically not a communication that may be defamatory of a seller who has sold—and warranted—it as authentic." In other words, a statement that a work is inauthentic can, depending on the circumstances, form the basis of a claim that the seller has been defamed.
3. Holding that, whether or not the authentication claims "might be understood as an opinion," a jury "could easily find otherwise given the language used." In other words, a statement that a work is inauthentic is not necessarily opinion (and therefore can in theory form the basis of a defamation claim).
So once again: here's what can happen when you say a work is fake. As a general rule, it's still a good idea to keep quiet.
It's about four minutes long and worth watching in its entirety.
Couple things worth mentioning.
There's no mention of the public trust. The new rationale for the general rule, offered by AAMD president Brent Benjamin, is that "the idea is that you don’t benefit today’s visitors at the expense of tomorrow’s, and you don’t benefit tomorrow’s visitors at the expense of today." But it should be obvious that that doesn't really make any sense if you think about it. First of all, almost every dollar a museum spends today, on programming, on engaging with today's visitors, and so on, is in some sense benefiting today's visitors at the expense of tomorrow's. You could always just put that money in the bank and save it for the future, to benefit tomorrow's visitors. There's no way museums can sensibly do this sort of intergenerational calculation for every decision they make.
More to the point, how in the world does it benefit today's visitors or tomorrow's visitors if a museum is forced to close its doors? Doesn't Benjamin's principle argue in favor of selling whenever a museum faces a financial crisis (i.e. not just in a pandemic)?
Maybe they should have stuck with the public trust.
I also really liked Baltimore Museum of Art director (and aggressive deaccessioner) Christopher Bedford's statement of what should really matter to museums: "Serving our publics. Being vital, being relevant, keeping our doors open."
I think that's exactly right, and not just till April 10, 2022.
Tuesday, May 19, 2020
Bottom line: "Going forward, it will be extremely hard for the AAMD–or anyone else–to pass judgment on a museum’s decision in the face of any existential threat."
The logic of the AAMD's current position seems to be that (non-acquisition related) deaccessioning is okay if the entire sector is experiencing serious financial strain, but not okay if any individual museum is experiencing serious financial strain. I just don't see how that makes sense.
Remember, prior to about a month ago that statement -- when it's a matter of survival, let museums sell art -- would have been considered repulsive, beyond the pale, self-evidently unethical.
Friday, May 15, 2020
Now, "[i]n a lawsuit the mother and son filed, the pair allege that media outlets like The Keene Sentinel, New Hampshire Public Radio, The Concord Monitor, and the Monadnock Ledger Transcript, defamed them by reporting on the case incorrectly."
Tuesday, May 12, 2020
"Creditors Are Chasing Bankrupt Auction House Paddle8’s Former CEO for Allegedly Mishandling Funds to the Tune of $1 Million"
Monday, May 11, 2020
Does that feel repulsive to you? It doesn't feel repulsive to me.
Sunday, May 10, 2020
Thursday, May 07, 2020
Wednesday, May 06, 2020
"Last month, Fairchild moved to dismiss the artist’s lawsuit. By its motion, Fairchild claims that it cannot be liable for copyright infringement because Munro’s artworks are not copyrightable. Fairchild argues that Munro claims copyright protection in 'fiber-optic light products' which encompass his sculptural works, but those light fixtures are mere useful articles containing no conceptually separable artistic design features and are thus not subject to copyright protection."
"One thing on which the creditors all seem to agree is that the current assets of Paddle 8 will be insufficient to cover its debts by a considerable margin."
Monday, May 04, 2020
"In other words, now that the wolf is at *their* door, Benjamin and his colleagues approve of deaccessioning as a survival strategy. When it was merely the Berkshire Museum that was threatened, they treated it as a cultural crime. The stink of hypocrisy is enough to make you gag."
Sunday, May 03, 2020
Saturday, May 02, 2020
Thursday, April 30, 2020
It's a pretty levelheaded piece, as these things go, but it fails to grapple with the fact that (as his references to the MFA and the Baltimore Museum of Art show) museums have always had a green light to sell off their art. The AAMD's recent announcement did not provide a green light that wasn't there before. It only broadened the acceptable criteria for using the proceeds of sale.
Monday, April 27, 2020
"To Keep the Industry Alive, the AAMD Must Permanently Give Museums Freer Rein to Sell Work" (UPDATED)
UPDATE: Brian Frye: "The jig is up, folks."
Tom Flynn: "[E]ven without the curse of coronavirus, deaccessioning was always going to be an inevitable consequence of the essentially unsustainable nature of many museum collections."
Victoria Reed: "I don't know if the AAMD stance is a turning of the tide as much as it is an acknowledgment that US museums are in really, very dire financial circumstances at the moment."
"Does appraising art ... reduce the appraiser’s appreciation for art the way working in a pork factory might reduce a worker’s appetite for bacon?" (UPDATED)
UPDATE: Derek Fincham comments: "The article is well-written and entertaining, but I just don’t think you get a complete picture of the art market by only talking with appraisers. He also ignores large areas of helpful scholarship from criminologists, totally ignores the Knoedler forgery scandal, and does not acknowledge the problems presented by the antiquities trade. But if you want an entertaining read, I can recommend it."
Saturday, April 25, 2020
Friday, April 24, 2020
UPDATE: More from Frye here:
"Deaccessioning rules also have the unfortunate consequence of occasionally causing distressed museums to go bankrupt and dissolve, despite sitting on collections of enormously valuable artwork. The deaccessioning police' argue that this is all as it should be, and that museums should go out of business, rather than doing something as 'repulsive' as selling a work of art in order to save the institution. I find their argument ... comically weak. And I am hardly alone. Most notably, Donn Zaretsky of The Art Law Blog has been lampooning it mercilessly for years. To be honest, it's a bit like shooting fish in a barrel, given that the deaccessioning police cannot seem to provide even a colorably coherent explanation of why it is repulsive to sell a work of art for the purpose of saving a museum, but totally fine to sell a work of art because the museum wants to own a different one."
Thursday, April 23, 2020
Thursday, April 16, 2020
"Think of it this way. The Guggenheim (to take one example among many) just announced that it is furloughing 92 employees and reducing pay for another 85. If that could have been avoided by selling one work from its collection, would you do it? And if your answer is no, would you say an opposing view is repulsive?"
Well, now comes news that "the field’s leading professional organization has adopted temporary measures aimed at giving them greater flexibility in how they manage their finances. The Association of Art Museum Directors ... said on Thursday that, for the next two years, it will not censure or sanction museums that engage in some activities typically prohibited by its policies, including using income from restricted funds for general operating expenses."
This is a big deal and strikes me as obviously correct. (Though in typical fashion "the resolutions do not change AAMD’s actual governing standards. They merely lift the possibility of sanctions through April 10, 2022" -- so it's still technically repulsive but there will be no penalty for the repulsiveness, at least for the next two years.) It never made any sense to say there were no possible circumstances in which selling art to generate operating funds could be justified. The pandemic is a very obvious example of such a circumstance, but clearly not the only one. The right approach should always be "to weigh the actual costs and actual benefits and try to determine whether, on balance, all things considered, the [proposed] sale is a good idea."
UPDATE: Some other reactions to the news.
Deaccessioning Hall of Fame Scholar-in-Residence Brian Frye: "OMGOMGOMG. The AAMD is apparently suspending its deaccessioning policies for the next 2 years. So, selling art for capital expenses is still, repulsive, but we'll hold our nose?"
Mark Gold (who as far back as 2010 was asking: "Why not make it ethical for a museum to weigh priorities and make difficult choices without fear of condemnation and ostracism?"): "So the survival of a museum is relevant to the applicability of "ethical rules" of museum associations? Museums with existential threats have been saying that for years. Nice to finally have broader recognition of that, but sorry it took a pandemic. ... It's about time that the survival of museums and the support of their staffs get the priority they deserve."
Lee Rosenbaum understands the consequences of the move -- "How will AAMD’s watchdogs ever again be able to censure or sanction individual museums (as happened with the National Academy in New York and the Berkshire Museum in Pittsfield, MA) if they resort to monetizing their art in an attempt to secure their economic futures in future years, after the national emergency has passed?" -- but even she is on board: "For now, I’ll grudgingly concede that AAMD’s current action is a justifiable emergency rescue operation for the entire field, not merely an easy fix for a few poorly managed institutions."
And finally, Jonathan T.D. Neil says the changes actually don't go far enough because they only allow the use of interest (not principal) from acquisition funds: "Using interest rather than principal isn't going to cut it. Museums directors should be set free to sell works and then to use the entirety of that income to support their employees. That's a resolution that would be easy to commit to. ... Prioritizing assets (yes, they are assets) over people in extreme circumstances such as this (22m unemployed) is getting the value system wrong. If you are committed to your audiences, your publics, and to sustainability, it's the right thing to do."
UPDATE 2: Sergio Muñoz Sarmiento: "My more controversial side says that this whole deaccesioning in the time of the pandemic is really just hogwash. I mean, seriously, who cares what the AAMD thinks? At this point art institutions (museums, etc.) are so entrenched in the art stock market–which is to say, commercial viability–that the notion of a 'public good' has become nothing but academic and journalistic fodder."
UPDATE 3: Related: "This crisis has exposed the fragility of how museums do business. Very few have the cash reserves needed to continue operating."
UPDATE 4: Also related: "Still, the ability of arts organizations to weather this storm, while backstopped by state and philanthropic money, is, at best, tenuous. Once we get past the current crisis, arts organizations may need to rethink their funding models."
Tuesday, April 14, 2020
"But in reality, the CASE Act will just help predatory law firms extract even more unjustified settlements from unsuspecting businesses and charities."
Background here. More from Daniel Grant in the Art Newspaper here.
"I can’t imagine that the museum associations will not be obliged to rethink the core requirements of economic survival in relation to some of the assets that they own in their collections."
I think that's his way of saying the museums may need to relax their strict rules regarding "operating cost" deaccessioning. Think of it this way. The Guggenheim (to take one example among many) just announced that it is furloughing 92 employees and reducing pay for another 85. If that could have been avoided by selling one work from its collection, would you do it? And if your answer is no, would you say an opposing view is repulsive?
"Thus, the Players, who were neither requested nor agreed to limit the display or depiction of the images tattooed onto their bodies, had implied licenses to use the Tattoos as elements of their likenesses."
Friday, April 10, 2020
Tuesday, March 31, 2020
Monday, March 30, 2020
"On its face, this dispute centers on a technical legal question about whether a 2014 email from Mr. Fordjour to Mr. Blumenthal that outlined the terms of their arrangement constituted a strict sales contract or a different kind of deal, called a consignment agreement."
Friday, March 27, 2020
"In short, under the Second Circuit’s test, a work is of recognized stature when a community of art experts says it is."
Tuesday, March 24, 2020
Monday, March 23, 2020
"The Artist Behind Meow Wolf’s Beloved Fantastical Space Owl Is Suing the Company for More Than $1 Million"
Here's some background on Meow Wolf from the New York Times Magazine last year: Can an Art Collective Become the Disney of the Experience Economy? They'd reportedly raised $158 million from investors as of last May.
Friday, March 20, 2020
"It is a classic example of an art dealer acting in bad faith to exploit an artist at the outset of his career. The law protects against that."
Wednesday, March 18, 2020
1. The New York Times: The Talented Mr. Philbrick.
2. artnet news: What Did Inigo Philbrick Do? How One Precocious Dealer Allegedly Swindled the Art Market’s Savviest Players Out of Millions.
3. A first-person account at New York magazine by Philbrick's one-time friend Kenny Schachter. This one features the largest amount of prostitutes and drugs.
Tuesday, March 17, 2020
Wednesday, March 11, 2020
Annemarie Bridy tweets: "Alleges the damages are so excessive that they violate due process. I think this one's a loser."
Background here. Bridy is probably right, but, as I say at the link, the damages issue is the most interesting part of the case.
Timothy Geigner at Techdirt says: "Are those two vans similar? Of course they are! So is Disney/Pixar guilty of copyright infringement? Well...no, probably not. This again is a matter of the idea and expression dichotomy in copyright law. The purpose of that part of the law is to limit copyright protection to specific expression and not mere ideas and themes. For instance, a 1 to 1 copy of Daniher's design on Pixar's cartoon van would likely be infringing. The concept of a purple van with a unicorn on the side of it is, however, not protectable. In fact, it's nearly in trope territory."
Some relevant background here.
Crispin Sartwell tweets: "If I were an art forger, Warhol and Basquiat would be tempting. Not sure anyone could tell the real thing from a careless fake by looking."
Saturday, February 22, 2020
The part of the decision getting the most attention -- part of what the Court calls the "crux of the parties' dispute" -- is that temporary works of art are eligible for VARA protection. That seems clearly right. The Court mentions Christo's "The Gates" for example.
I've always been more interested in the damages aspect of the case. The district court found it could not quantify the damages, so the $6.75 million was all statutory damages. The Second Circuit now has ruled that that was appropriate -- that in a case where actual damages could not be established, a nearly $7 million statutory damages award was justified. Now, it may be the facts of this case were so unique and so egregious that it won't have a wider impact -- basically what happened is that early in the litigation the artists got a TRO preventing the demolition of the site, it expired, and, while the district court was considering their application for a preliminary injunction to replace it, the developer had the work painted over, "without any genuine business need" to do so, "simply, as the district court found, an 'act of pure pique and revenge.'" But the idea that significant statutory damages can be awarded in a VARA case even where actual damages can't be proven could be a big deal.
UPDATE: Some reactions. First, Derek Fincham:
"I am always surprised when I encounter art lawyers and academics who are critical of the idea of moral rights. They will often make the argument that artists do not want or need moral rights, and developers like Wolkoff will not allow art anywhere near their buildings ever again. But this elides the reality, these condominium developments have as I understand it been built to take advantage of the newly gentrified neighborhood, and the new ‘luxury’ development will still be called 5 Pointz, and feature aerosol art. The art will happen no matter what, this ruling just gives the artists vindication for the personality of these artists that was bound up and integral in these images. Developers like Wolkoff claim that these moral rights damage their property rights; but a moral right is not an economic right. Instead it accounts for the psychological suffering which takes place when an artist’s art has been harmed in some way."
And Sergio Muñoz Sarmiento:
"Big news? I think so. And I think developers, in fact, any commissioning party commissioning an art work by an artist should be processing right about now."