Thursday, December 30, 2021
Saturday, December 11, 2021
Thursday, November 18, 2021
Wednesday, November 17, 2021
Thursday, November 11, 2021
Sunday, November 07, 2021
"To be safe, however, Whiteley has rechristened the project 'Justin Bieber Is Suing Me,' and the gallery’s Instagram page now acknowledges the parodic nature of the project."
Sarah Cascone at artnet news: Justin Bieber’s Lawyers Tried to Shut Down a Gallery Show by an Artist Impersonating the Pop Star to Sell $100,000 Paintings.
The show was at Gablowsian gallery.
Tuesday, November 02, 2021
"Notorious Art Dealer Inigo Philbrick Set to Plead Guilty to Criminal Charges in Federal Court This Week"
Eileen Kinsella with the scoop.
Monday, November 01, 2021
Tuesday, October 26, 2021
"If some version of the plan becomes law, that isn’t the only question. There would need to be rules on how the value of illiquid assets — art, for example — should be calculated"
The New York Times point out an art angle to the proposed tax on unrealized capital gains.
Friday, October 22, 2021
"The covering also wouldn't destroy the work under VARA, and [Judge] Crawford compared it instead to removing and storing a painting from a gallery."
Vermont Law School has prevailed in the VARA lawsuit over its decision to "permanently conceal two murals that depict Black people in a way that members of the law school community consider racist." Story here. For background, start here.
Tuesday, October 19, 2021
I've mentioned before that the Deaccession Police have recently been engaged in a project of re-branding themselves as the Monetization Police.
Chief Branding Officer (and Pulitzer Prize winner) Christopher Knight has a new piece in the LA Times complaining about monetization, which he defines as "selling collection art to raise money to pay operating bills or capital expenses." He wags his finger at "opportunistic museums in Baltimore, Brooklyn, Syracuse, San Diego, Palm Springs and elsewhere" who have recently "cashed in art," and says they have been "egged on by a few clueless art lawyers and errant academics."
I'd like to say a word in support of the former group. (By the way it's not the first time Knight has given us clueless art lawyers too much credit when it comes to deaccessioning practices. He once claimed the chairman of the board of LA MOCA was "a Zaretskian who figured that if MOCA was spending money it didn't have, it really didn't matter" because it could always sell off collection art. I responded to that here.)
Knight contrasts the "fine surprise" of UCLA selling a Picasso -- for an estimated $6-8 million -- with the "dismal example" of the Met's recent announcement that it will be selling off a number of duplicate prints and photographs from its collection. The difference, for him, is "the planned use for the funds raised from the sales." In UCLA's case, the money from the sale will be used for future acquisitions. In the Met's case, the money will be used for something else -- "mostly salaries, it appears" -- which is, he says, "appalling."
And here's where the re-branding comes in. "What the Met is doing," he says, "is not traditional deaccessioning, ... although it’s usually misrepresented in the media as such. What the Met is doing is monetizing its collection."
Leaving aside the fact that he fails to explain why what UCLA is doing -- which is taking a work from its collection and exchanging it for money -- is not also monetization, the striking thing to me about the piece is that he never bothers to say why it's appalling to use sale proceeds for other purposes that a museum judges to be valuable.
He does say that the kind of deaccessioning UCLA is engaged in is "a long-standing best practice in the profession," "a long-established museum norm." (Notice how deeply conservative his position really is: this is right because this is how it's always been done.) But he doesn't say why that practice cannot change, why that norm cannot evolve. In other words, he still hasn't answered the question put to him by Brandeis philosophy professor Jerry Samet during the Rose Art Museum controversy more than 10 years ago (just substitute "appalling" for "repulsive"):
"You say: 'Yes, legally it is quite possible to sell museum art and pay the university's bills with the income. Ethically, however, it's repulsive.'
"As the chair of the Committee whose report you discuss, I have to ask:
"'Can you explain what exactly is repulsive about it? If you replace '... and pay the university's bills' in your condemnation with a real description of what those bills are FOR--eg: '... and provide scholarships to students whose families are suddenly unable to afford the tuition' or '... and pay professors instead of canceling courses and cutting back programs', and so on, perhaps you'll rethink your judgment.
"If you STILL think it's repulsive, then you owe your readers an explanation of how you've arrived at this moral view. Is it your view that selling art to do ANYTHING in the world except buy more art is morally repulsive???"
He still hasn't explained how he's arrived at his view; instead he just keeps repeating that it's a violation of long-established norms. (Put another way, long-established norms can and should sometimes be reconsidered.) The closest he gets to an argument is that the Met's sale makes it more likely that other museums will follow suit. But he never says why it would be wrong for those other museums to do so as well.
As I said recently in discussing the Met's "dismal example," once you've identified the works ("duplicates, multiples, copies of the same thing [we have] in better quality") that are to be sold as part of your routine collection management -- call it deaccessioning, monetization, whatever you like -- what difference does it make what you do with the proceeds? We clueless art lawyers are still waiting for an answer.
Friday, October 15, 2021
Thursday, September 23, 2021
Clair Selvin has a piece in ARTnews about museums co-owning works, using a Sam Gilliam jointly acquired by Dia and the Museum of Fine Arts, Houston recently as an example.
This is nothing new and the question I have is why not think of this as a possibility when it comes to deaccessioning? If "co-ownership is great" when two museums acquire a work together, why isn't it also great when cash-strapped museum sells an ownership interest in a work to cash-rich museum in another city? "At the heart of it is the benefit of being able to see the work, and I think we’re all distressed when we think about all the works that are never put on view for one reason or another." As I've said before, it's the Ellis Rule in action. Who could possibly object?
Tuesday, September 21, 2021
"It was the last outstanding criminal case initiated by the collector, Dmitry E. Rybolovlev, in his dispute with Mr. Bouvier in what has been one of the art world’s longest and most bitter entanglements"
Saturday, September 18, 2021
"The works, all duplicates from its collection, will be offered in three sales at Christie’s, starting next month"
Katya Kazakina breaks the news that the Met is deaccessioning "219 prints and photographs to help plug a $150 million revenue shortfall resulting from the pandemic."
This should not come as a surprise.
Brian Frye "can't wait to see the deaccessioning police freak out, even though this should be the most unobjectionable kind of deaccessioning. After all, museums sell duplicates to buy new works for their collection with the AAMD's blessing all the time."
So far, the deaccession police have been quiet. Give it time.
As I said in the post I linked above, you've identified 200 some works -- "duplicates, multiples, copies of the same thing [we have] in better quality," according to the Met's director, Max Hollein -- that are to be sold as part of your routine collection management. They're going to be sold anyway. At that point, what difference does it make what you do with the proceeds?
"Net sale agreements are commonplace in the market, and the court easily found that this sophisticated collector had no legal ground to complain when the work was sold in accordance with the agreement he signed."
Saturday, September 04, 2021
Tuesday, August 24, 2021
"After such consideration, we emphatically reject AWF’s assertion that Google 'comprehensively refutes the panel’s reasoning.'"
They respond to the Blake Gopnik view in this way:
"Just as AWF misreads the fact- and context-specific finding of fair use in Google as dictating a result in the very different context before us, it misreads our opinion as 'effectively outlawing' an entire 'genre' of art 'widely viewed as one of the great artistic innovations of the modern era.' ... As any fair reading of our opinion shows, we do not 'outlaw' any form of artistic expression, nor do we denigrate any artistic genre; as we explicitly state, it is not the function of judges to decide the meaning and value of art, still less to 'outlaw' types of art.
"We merely insist that, just as artists must pay for their paint, canvas, neon tubes, marble, film, or digital cameras, if they choose to incorporate the existing copyrighted expression of other artists in ways that draw their purpose and character from that work (as by using a copyrighted portrait of a person to create another portrait of the same person, recognizably derived from the copyrighted portrait, so that someone seeking a portrait of that person might interchangeably use either one), they must pay for that material as well. ... The issue here does not pit novel forms of art against philistine censorship, but rather involves a conflict between artists each seeking to profit from his or her own creative efforts. Copyright law does not provide either side with absolute trumps based on simplistic formulas. Rather, it requires a contextual balancing based on principles that will lead to close calls in particular cases."
But if there is a genre of art in which artists incorporate the existing copyrighted expression of other artists in ways that draw their purpose and character from that work (as by using a copyrighted portrait of a person to create another portrait of the same person, recognizably derived from the copyrighted portrait), hasn't that genre now been outlawed in the Second Circuit?
Do we now just fight about whether the appropriated art in a given case has been incorporated "in ways that draw their purpose and character" from that work (whatever that means) or, instead, in other ways?
As someone asked when the original decision came down, aren't we still, basically, in the dark?
Monday, August 09, 2021
"If the world as we know it hasn’t ended, the conclusion may be that the world hasn’t ended. That is, museums will have discovered that the flexibility afforded by the ability to stretch the definition of direct care beyond prior thinking, allowing the proceeds from art sales to backfill deficits and fund important initiatives, has not been the calamity some had predicted." (UPDATED)
Mark Gold has a characteristically well-reasoned piece in The Art Newspaper as the AAMD's two-year experiment in allowing proceeds from art sales to finance “direct care” of their collections nears its close.
The anti-deaccession view is presented as a matter of ethics, and, as Gold says, "unquestionably, preserving the objects entrusted to museums’ care is ethical. But isn’t it also ethical to pay employees an equitable living wage, to support programming that contributes to social justice and to keep doors open for the benefit of the communities that museums serve in all sorts of ways beyond owning objects?
Read the whole thing.
UPDATE: Brian Frye: "The key takeaway: 'ethics' isn't just about rules, it's about values. Which ones matter & why?"
Friday, August 06, 2021
Sort of ("We’ve only sold 15 pieces and I don’t think we are going to sell many more at all").
It will "find alternative solutions to its monetary woes, including reducing full-time staff from 20 workers to 12."
"Judge Cohen rejected Steinhardt’s claims, saying he was a 'sophisticated art collector and financier' who never claimed that the consignment agreement had been broken, and did not 'do any diligence of his own.'"
A victory for Hirschl and Adler gallery in a lawsuit involving a "net to you" consignment.
Grossman LLP (which represented the gallery) has a post about it here, concluding: "The case stands as a reminder that, while the law protects against fraud, breach of contract, and other wrongs, it may not protect a party—especially a sophisticated and experienced one—from buyer’s or seller’s remorse."
Monday, August 02, 2021
"San Francisco Unified School District broke the law when it voted to cover up a contentious mural at George Washington High School without first examining the environmental impacts, a judge ruled this week in a win for the high school alumni association suing over the issue."
From a recent "Wealth Matters" column in the NYT:
"One issue that has not caught up with the technology is how NFTs will be taxed. Cryptocurrency is taxed at the capital gains rate, and many experts say they believe that NFTs will be considered collectibles, which are taxed at a 28 percent rate. But the tax issue gets more complicated because many NFTs are bought using cryptocurrency. So any transaction would be considered a realization of the gains in that cryptocurrency.
"''It’s a perfect example of where the law hasn’t caught up with the technology,' said Jere Doyle, senior vice president at BNY Mellon Wealth Management. 'Collectible in code sections says any work of art, rug or antique, metal or antique, or any other tangible personal property. Would any work of art be tangible or digital? Does tangible modify a work of art? We don’t know.'"
Eileen Kinsella in artnet news: Notorious Los Angeles Art Dealer Douglas Chrismas Has Been Charged With Embezzling $260,000 From His Former Gallery.
From Robin Pogrebin and Siddhartha Mitter in the New York Times:
"[D]ozens of the artists now say they have deep concerns about the company. It sold very little of their art, they say, made only two rounds of small payouts several years ago and sought to change the contract to make them responsible for storage costs. Artists say that after they objected, the company all but disappeared and they lost track of where their art was being held, something they had expected to be kept abreast of, even though such notifications were not required under the contract."
One artist has sued, "citing breach of contract. Another group of 30 artists in 2018 filed a complaint with a British regulatory agency, which declined to comment."
I was an early skeptic.
Wednesday, July 14, 2021
Monday, July 12, 2021
Thursday, July 08, 2021
"The charges against her stemmed from the fraudulent sale of a £1.1m Yayoi Kusama pumpkin sculpture to a Hong Kong collector, while a similar claim against her over a Warhol portrait remains in German court."
Some background here.
Friday, July 02, 2021
"In custody is not a gang of thieves who planned a Hollywood-style heist, but a 49-year-old construction worker, with the Twitter name ArtFreak, who was arrested on Monday."
NYT: "Stolen Picasso and Mondrian Paintings Found Stashed in a Ravine in Greece." "The theft appears to have been years in the making as an obsession with art morphed into something criminal. The suspect, who was remanded to police custody after appearing before an investigating magistrate on Thursday, is reported to have told the police that he had 'always been interested in art.'"
Saturday, June 19, 2021
Includes the following:
"'You might get indigestion, but there is nothing stopping you under U.S. law from eating the Mona Lisa if you own it,' said Amy Adler, an art law expert and professor at the New York University School of Law. 'We only protect works for the life of the artist, with a few minor exceptions, but that’s basically the rule under the Visual Artists Rights Act.'
"In France, droits moraux, or 'moral rights,' would typically protect an artwork from such an act. 'Moral rights protect artists from the alteration, mutilation, or harm to their works that would be damaging to their reputation,' said Mr. Urice.
"But Leonardo da Vinci’s works aren’t covered by them, Mr. Urice added. 'The statute wasn’t enacted until the 19th century, and certain aspects of moral rights in France descend to heirs who can enforce them, but the statute would not be retroacted to the 16th century.'"
Wednesday, June 09, 2021
"[T]he AAMD’s decision to loosen its restrictions on deaccessioning hasn’t really resulted in the bonanza for auction houses that many predicted. In fact, when you even it out, sales from art museum collections have been more or less in line with sales pre-pandemic. ... In 2020, the number of institutions consigning work to Sotheby’s and Christie’s remained about the same as in previous years."
It's almost as if the Deaccession Police have a tendency to overreact to things.
The Thomas Cole painting "controversially sold" by the Newark Museum recently ("More than 50 cultural historians and critics [had] released an open letter denouncing the sale as a 'senseless monetization' of the art") has ended up ... 90 miles away, at the Philadelphia Museum of Art: "It was purchased from the auction by the Thomas H. and Diane DeMell Jacobsen PhD Foundation, a St. Louis–based organization whose aim is to 'carefully research and obtain American masterpieces,' and donated on a long-term loan to the Philadelphia Museum, where it will be displayed in the American galleries."
It went from the public trust to the public trust, an example of the Ellis Rule in action.
Saturday, May 01, 2021
"Our brief addresses the effect of Google v. Oracle, which the Second Circuit has explicitly asked for more briefing about."
Amicus brief in rehearing petition for Warhol v. Goldsmith by IP professors Rebecca Tushnet, Christine Farley and Pam Samuelson.
Monday, April 26, 2021
Jeanne Fromer's reaction to the recent Warhol fair use decision was that (to put the matter mildly) "fair use in art has become a bit messy in the Second Circuit with each panel pointing in a somewhat different direction" and to "hope the Second Circuit uses one of its rare en bancs to revisit this decision ...."
Thursday, April 15, 2021
Monday, April 05, 2021
"Last month, three federal appellate judges in Manhattan decided they knew more about art than any old critic or philosopher" (UPDATED)
"Whether they quite meant to or not, their ruling had the effect of declaring that the landmark inventions of Duchamp and Warhol — the 'appropriation' they practiced, to use the term of art — were not worthy of the legal protection that other creativity is given under copyright law."
UPDATE: More Gopnik here: "It’s a really messy situation. And this same court seems to have handed down different decisions fairly arbitrarily about what counts as good reuse and what counts as bad reuse, what counts as a fair reuse and what counts as an unfair reuse. So it’s really a mess, and I’m kind of hoping that the Supreme Court weighs in and cleans this situation up."
Sunday, April 04, 2021
The use passed the transformativeness test because "the exhibition transformed the Photo by foregrounding the instrument rather than the performer." Whereas the photographer's "stated purpose" in creating the photo was to show “what Van Halen looks like in performance,” the Met exhibition "highlights the unique design of the [depicted] guitar and its significance in the development of rock n’ roll instruments." Further, "the Photo appears alongside other photographs showing the physical composition of the guitar, which are collectively accompanied by text discussing the guitar’s genesis, specifications, and impact on rock n’ roll music, not Van Halen’s biography or discography. This context 'adds something new, with a further purpose or different character, altering the [Photo] with new expression, meaning, or message.'"
There you have it. Totally consistent with Warhol, and with Cariou before it. I think the principle in the Second Circuit is that there will be a finding of fair use, as a matter of law, when the use in question is fair, and, conversely, there will be a finding of no fair use when the use in question is not fair. All crystal clear.
Friday, April 02, 2021
"Anne provided a needed corrective to the recent declarations by some commentators that museum trustees should be condemned for not entirely defraying museums’ outsized budgetary shortfalls from their own pockets."
Lee Rosenbaum has a round-up of some comments from the "old school" side of the aisle at the recent Syracuse Deaccessioning symposium, including more from Anne Pasternak (who Lee says "pragmatically acknowledged the merits of both sides of the deaccession dialectic, and gamely tried to steer between them") in response to the "it's on their fat asses" wing of the Deaccession Police:
"Can I just stand up for boards? It’s really made me crazy how people are just, like: 'All these museums have billionaires on their board and they really should be paying for everything.'
"I find that so perplexing at best. First of all, very few institutions have bunches of billionaires on the boards. I happen to be blessed with a very generous board of directors whose giving keeps increasing. But we can’t expect a public institution that was founded over 200 years ago to be solely funded by a handful of privileged people. I find it so bizarre that that’s even a conversation out there.
"I think it’s time to get real about boards. They’re under such scrutiny that you have to be courageous to be on a museum board these days. So I think we need to have a real conversation about what it means to run these institutions and the roles of boards who, in many of our cases, are already being extraordinarily responsible and generous, and not just look to a handful of people to solve all of our problems."
Tuesday, March 30, 2021
"While the end result ... will be hailed by photographers and other similarly-situated content creators, it also ratchets up the confusion meter for anyone sitting on the sidelines trying to make sense of the Second Circuit’s fair use landscape."
"The clear import of Goldsmith is that courts should not automatically recognize any alteration to an original work as transformative—regardless of who’s doing the altering. The problem, of course, is that the court really hasn’t offered any guidance on what is transformative. Why was Richard Prince’s composition, color palette and media deemed 'fundamentally different and new' compared to the original work, but not Warhol’s? Why was the Second Circuit able to decide that Warhol’s image wasn’t protected by fair use as a matter of law when it was unable to do so for images in Cariou that are arguably less transformative than Warhol’s? Who knows."
Sunday, March 28, 2021
... is Erik H. Neil of the Chrysler Museum of Art in Norfolk. Last week, he was seen in the New York Times saying "We are educational institutions. If you want to flip paintings, there are many other types of institutions where you can do that, and they are called commercial galleries." (To which I wondered why flipping paintings to buy more art does not also make you a commercial gallery.)
Now he has expanded on that thought with an op-ed at artnet. It's largely in the slippery slope genre of anti-deaccessioning arguments, but with a twist. He seems to say it may be okay for larger museums to sell work, but worries that sets a bad precedent for smaller museums: "The nation’s biggest museums may hold as many as two million objects each, so selling a redundant work will scarcely be noticed. At most other museums, a lucrative sale would devastate the collection under the pretense of protecting it. For the mega-museums, selling a fourth-ranked Rothko is inconsequential; for a smaller museum, selling its only Rothko might be an irreparable loss." (Though you kind of get the sense he's not that thrilled about larger museums selling things either.)
But the expanded piece seems to me to suffer from the same flaw as the one-liner in the Times. His general position seems to that "when we open our collections for sale, we undercut one of our basic reasons for existing: the duty to care for artwork for the benefit of the public." But in the same piece he mentions that, at his own museum, "we are in the midst of a lengthy collection review that includes culling 'Lost Cause' memorabilia and other works that have never been exhibited and are irrelevant to our mission. Some of these objects have been transferred to institutions better suited to interpret them. Most of the other deaccessioned works are of lower quality (a loaded word, I recognize), in poor condition, or duplicative."
He hastens to add that when they sell work, "the income is used expressly to add to our collection, not to support operations." But what he doesn't explain is why, when they open their collection for sale in that way, it does not undercut one of their basic reasons for existing. You can say you are using the sale proceeds for a good purpose, the approved purpose, the purpose that will keep the haters from hating -- but the fact remains you are opening your collection for sale. How can that even be denied?
How can you say in one moment selling work undercuts one of your basic reasons for existing and then, in the next moment, talk about how you are culling "lower quality" and "duplicative" works and selling them?
How is this smoke and mirrors act still going on?
I liked this bit:
"While museums may collect with relative freedom, independent curator and writer Glenn Adamson pointed out that they are subjected to intense scrutiny when selling they sell, and the headlines bear that out. ...
"When they opt to sell, expect 'scorched earth criticism by bloggers,' added lawyer Mark Gold.
"[The San Diego Museum of Art's Roxana Velásquez], on her panel, appealed for more propositions for solutions than just criticism. The current crisis, she said, showcases museums’ most pressing needs. Those in the hot seat need great ideas and empathy.
"But [the Brooklyn Museum's Anne] Pasternak was defiant. Let bloggers criticize, she said.
"'Haters gonna hate.'"
In related news, I'd like to announce the first item of merchandise for our new gift shop at the Deaccessioning Hall of Fame: "Haters gonna hate" t-shirts, in all sizes, coming soon.
Pasternak has been on a roll lately. She had a great quote in the recent New York Times piece on the state of the deaccessioning debate:
"People will say trustees can pay for this. What planet are they on? Why is it the trustees’ responsibility to pay 100 percent of expenses for public institutions? That attitude is conflicting at best. It’s misinformed to think that every museum has a board full of billionaires."
(Depending on how the "Haters gonna hate" tees sell, we may do a line of "What planet are they on?" merchandise next.)
Boucher's piece addresses this "it's on their fat asses" point too:
"'Boards are not banks,' Everson board chair Jessica Arb Danial said. 'They are fiduciaries.' What’s more, the Everson doesn’t have a single billionaire on its board, she said. ...
"On her panel, too, Pasternak called the assumption that her board could simply write checks to cover pandemic shortfalls 'perplexing.'
"Likewise, Mark Gold, a partner at Smith Green and Gold, in Massachusetts, who was counsel to the Berkshire Museum, called it 'offensive' to assume that boards are stocked with super-wealthy members, saying that he works with institutions whose boards include local business owners and school teachers."
Saturday, March 27, 2021
That's how I ended my post on the Second Circuit's Prince-Cariou decision, back in 2013.
After yesterday's decision in the Warhol-Goldsmith case, I'm afraid we're more in the dark than ever.
In my initial post on the District Court decision in the case, I said there were two ways to look at it.
One was that "this Judge saw this particular use as transformative. If you put the same facts before another judge ... the result could very easily have gone the other way. On this reading, there's still no way to have any confidence about how any given fair use case will be decided."
The other was to read it as standing for the proposition that "as long as you can make a reasonable, good faith case that your work is transformative (even if there are other interpretations in which it's not), it's fair use." That would have been a big deal in fair use jurisprudence.
There's no support in the Second Circuit opinion for that second reading, so we're back to the first: these Judges saw this particular use differently. The closest thing I can see resembling a guiding principle is that the second work must be "in service of a 'fundamentally different and new' artistic purpose and character" such that it "stands apart from" the first work. It doesn't have to be the case that the first work is "barely recognizable" within the second work, but it is the case that the second work "must, at a bare minimum, comprise something more than the imposition of another artist's style on the primary work such that the secondary work remains both recognizably deriving from, and retaining the essential elements of, its source material." Ok, good luck with that.
The opinion is here.
Jeanne Fromer says "the court seems to focus merely on the literal differences between the Goldsmith photograph & Warhol's Prince series in finding no transformativeness, which is something that Cariou v. Prince & Blanch v. Koons had very much rejected by looking to the message conveyed by the works" and that she "hope[s] the Second Circuit uses one of its rare en bancs to revisit this decision .... Fair use in art has become a bit messy in the Second Circuit with each panel pointing in a somewhat different direction."
More commentary as it comes in.
UPDATE: Sergio Muñoz Sarmiento: 2nd Circuit delivers devastating blow to appropriationists.
UPDATE 2: Artist/lawyer (and friend of the blog) Dave Steiner emails: "The court's holding is correct (no fair use for Warhol's Prince magazine covers), but the court missed an opportunity to clarify that the analysis depends on the context of the secondary work's use: as art works, the secondary works may be fair use even though they are not when reproduced on mass-produced, highly commercial magazine covers. With unique art works, the public interest is more likely to outweigh any commercial aspect and there is unlikely to be market substitution. Sullivan and Jacobs almost have it right: the court should dispose of the transformative test altogether because not only is it not supported by the statute, the statute contradicts it (and despite its attempt in Campbell, the Supreme Court cannot rewrite the statute: authors have the exclusive right to prepare 'transformed' works, so 'transformative' uses are not fair by definition), and instead rely on the fourth fair use factor (unique art works rarely cause cognizable harm to the market for the original work, while licenses for mass-produced magazine covers do)."
UPDATE 3: Brian Frye: "I hear Steiner's argument, but disagree that the decision is correct. In my opinion all that should matter is that the photo and the paintings aren't substitutes."
Sunday, March 21, 2021
I just want to thank the organizers of last week's two-day symposium on deaccessioning at Syracuse University for including me on a panel with deaccessioning luminaries Brian Frye (the Deaccessioning Hall of Fame Scholar-in-Residence), Mark Gold, and Nicholas O'Donnell. Throughout the event I did not see a debate that was "heated" or "bitter" but rather civil and respectful at every turn. Interesting from start to finish.
And speaking further of deaccessioning and luminaries, I'm pleased to have contributed to a new three-volume collection called Collections and Deaccessioning in a Post-Pandemic World. My essay is on "Balancing the Needs of Today's Visitors Against Those of Future Generations." The list of luminaries is too lengthy to mention; you can read all about it here.
The NYT's Robin Pogrebin and Zachary Smalls have a piece on the "heated" debate museums are having about whether to make permanent the "temporary two-year loosening of an Association of Art Museum Directors’ policy that has long prohibited American institutions from selling art from their collections to help pay the bills" -- "an idea that, depending on which institution you talk to, either makes perfect sense or undermines the very rationale for their existence."
They say "the longstanding policy" in the field has been "that the art owned by institutions was held for the public benefit and, as such, should be mostly retained."
Framed that way, I don't think there's anyone who would disagree. Everyone agrees the art should be mostly retained.
The traditional AAMD view is that it should be mostly retained, except it can be sold to buy more art. (This is not "monetizing," even though you are taking the money from sales and using that money to do something else, i.e. buy art.)
Those on the other side of the heated debate believe that the art should be mostly retained, except it can be sold to buy more art and, occasionally, for other pressing needs.
Various views are expressed.
Erik Neil of the Chrysler Museum of Art in Norfolk says "We are educational institutions. If you want to flip paintings, there are many other types of institutions where you can do that, and they are called commercial galleries" -- but he doesn't explain why flipping paintings to buy more art does not make you a commercial gallery.
The Brooklyn Museum's Anne Pasternak says "We need to really rethink some of our orthodoxies carefully so that our institutions cannot only survive but meet the demands of our time and flourish" -- and then adds this great response to the "it's on their fat asses" crowd:
"People will say trustees can pay for this. What planet are they on? Why is it the trustees’ responsibility to pay 100 percent of expenses for public institutions? That attitude is conflicting at best. It’s misinformed to think that every museum has a board full of billionaires."
Max Anderson says "To say we have billions of dollars of art and yet you’re holding out your tin cup to the community saying, ‘Please support our museum and by the way we are now able to sell art to pay our bills,’ the community will say, ‘So why are you coming to me?'" (To which Michael O'Hare might say: "If the only way by which you can make a claim on people’s wealth and the taxpayer is by lying, then sure.")
Anderson also says if a "museum steps outside of a charitable purpose and becomes more of a commercial entity,” that "opens up an entire world of hurt around the model which has for over a century governed nonprofit organizations." It's not clear to me how selling assets to be better able to serve your charitable purpose is stepping outside of a charitable purpose, but, in any case, once again, museums sell work all the time (to fund acquisitions) without anyone suggesting they thereby "become more of a commercial entity."
Finally, they mention the argument -- attributed to no one in particular but you could call it the Lee Rosenbaum position -- that "in fact, most museum collections are so full of donated works for which tax deductions have been taken that it’s fair to say they have been underwritten in part by the American taxpayer. Will the routine resale of such gifts call into question the favorable tax treatment enjoyed by museums as charitable organizations?" Michael Rushton (and I) addressed that argument here, and again I would just ask: why doesn't the routine resale of such gifts to buy other, different works of art (which even the bitterest critics of any change to existing policy admit is "a routine activity of art collection management") call into question such favorable tax treatment?
Tuesday, March 16, 2021
"A New York Lawmaker Has Proposed a Bill to Increase Taxes on Auction Sales to Fund Public Art Education"
Eileen Kinsella has the story here, and points out that "the proposal is at an early committee stage, and would have a long way to go before making it to law."
Sunday, March 14, 2021
"'In the limited law available concerning the VARA, an owner’s decision to conceal a work does not constitute modification or mutilation,' Crawford wrote in his order."
"Covering the murals without damaging them has the same effect as an art museum removing a painting and putting it into storage, Crawford noted."
Wednesday, March 03, 2021
"Many of Rockwell’s paintings for the Boy Scouts have been on display at the Medici Museum of Art in Howland, Ohio, since last year as part of a free exhibition that is still continuing."
So the Boy Scouts of America, "faced with tens of thousands of sex-abuse claims," is planning to sell 60 works by Norman Rockwell to "help raise money for a settlement fund of at least $300 million for sexual abuse victims."
I don't think even the Deaccession Police will have a problem with this -- Deborah Solomon tweets out what I assume will be the consensus view: "Should the Boy Scouts de-accession their art? Hell yes. They're not a museum & are facing 1,700 lawsuits from victims of sexual abuse who need to be compensated" -- but it's worth noting that, to the extent you believe (as some members of the Deaccession Police do) that it's the tax-exempt status of museums that puts their assets in the public trust, the same logic should apply to the Boy Scouts. I've never heard any other explanation for how they come to be in the public trust.
In any event, the new talking point the Deaccession Police seem to be settling on is that deaccessioning -- at least the naughty kind we've been seeing lots of lately -- is "monetizing" the collection and "monetizing" the collection is just simply and obviously wrong (or perhaps repulsive), no explanation or theory required. Whereas the non-naughty kind of deaccessioning, where you sell work from the collection and thereby convert it into, um, money, which money you then use to purchase works of art, is not monetizing the collection and is therefore ok. Got it?
Sunday, February 28, 2021
Another interesting deaccession-related interview today.
I loved this bit:
"The debates have a kind of theological tint to them. There's a great deal of passion and conviction and categorical statements around issues which by their nature are highly complex. I think they also reflect a certain lack of faith in institutions to make the right judgments .... I also think the issue is particular to each museum. Some museums have been collecting 150 years, others have not. I agree with those who worry about a slippery slope, but I don't believe that you can take a categorical position against it. It's like a medical procedure—there are so many variables that come into play."
I think that's basically the right approach. Drop the dogmatism. Acknowledge the complexity. Have faith in our institutions. Take each case individually. Avoid taking a categorical position. Consider all the variables.
Why is that so hard?
He also gives the following hypothetical example of how an institution "could unlock value from an existing collection":
"Institution A is an impoverished institution with a stellar collection. Institution B is a very wealthy and well endowed institution with a very weak collection. Could Institution A and B agree to a co-ownership agreement where the wealthy institution provides the funding, and the other institution provides access to the masterpiece? Would that be controversial?"
I mentioned a similar hypothetical here, and spoiler alert: Yes, that would be controversial, because that would be seen as "monetizing" the collection and monetizing the collection is (categorically) wrong, on theological grounds.
And last, in response to "the argument against deaccessioning that's been made by some critics, namely that the trustees of the museums in question should step up and dip into their pockets" (or as some say, "it's on their fat asses") he says, first, "it's very interesting to me as a European that a lot of the most progressive voices are looking to wealthy people to solve problems," and second, that part of the problem is that it's no longer the case, as it once was, that "the apex of what it meant to be a philanthropist was that you were the chairman of the board at the local museum," and one way to deal with that problem is that if "the museum opens up, becomes a vital community resource, addresses all kinds of social needs for a much wider range of people and contributes in ways small and large to the health of our society" -- as opposed, we might say, to just hoarding art -- "I think it will be easier to imagine people with this great capacity getting behind museums."
"Totaling $1.5 million, the amount is a far cry from the $65 million the museum anticipated it would raise for its so-called 'Endowment for the Future' through deaccessioning."
The Baltimore Museum of Art announced three gifts to help fund the diversity and equity initiatives it initially had planned to support through deaccessioning but changed course in the face of a storm of criticism.
Brian Boucher's artnet story describing the gifts also includes a fascinating interview with BMA director Christopher Bedford, which includes these highlights:
- Boucher says that "some are calling on boards to step up yet further. They’re asking, why should museums have to sell art when they have boards to support them?" (Or as one critic put it, "it's on their fat asses.") Bedford's answer: "From an outsider’s perspective, the call for apparently extraordinarily wealthy board members to 'step up' seems logical. But those board members have been, are, and continue to step up—it [still] may not be adequate to keep the museum solvent and meet the mission."
- Getting to the core of it, Bedford say: "Critics of institutions question, 'Why should we sell art?' My question would be quite simply, 'Why should we not?' . . . Our fundamental role is not to hoard riches, but to interpret those objects in order to provide cultural enrichment. Institutions are being called on to change our DNA, and there is nothing more important to our DNA than our collections. If the majority of institutions in this country are white-centered, which they are, then it stands to reason that the collection itself is emblematic of that bias. Why shouldn’t we be able to, in some measured and controlled fashion, access those resources to drive vision and to properly diversify and compensate staff and properly diversify collections?" (my emphasis). (Though he admits: "I’m probably in a minority at the moment in terms of posing that question.")
- On why the plan was abandoned: "We [ultimately] decided it would be best to remain aligned with the policies that govern our peer institutions."
- "When conservative voices say we should never open Pandora’s box, I say, why not?"
- "[T]he idea of moving slowly and cautiously is, I think, a little tone-deaf to the urgency of the present moment, when activist voices are calling, justly, for museums to recognize what we haven’t been doing and move quickly to remedy that."
- "Mine is a careful dance of saying, I am very committed to the field and I want to be a part of the group that wants to thoughtfully change the agenda, while also saying there are aspects of the way that museums work historically that I disagree with on a 40,000-foot level. It’s important to stretch the conversation. Even if my position is not the governing position, the harder people push, the more it moves to the center."
Saturday, February 20, 2021
"The Museum approaches deaccessioning with the same degree of strategy and deliberation as we apply to acquisitions."
Some highlights from the latter:
- He makes the point that museums sell work all the time and no one bats an eye: "I think that sometimes even people from the field on purpose neglect the reality that museums have been involved in deaccessioning for decades. It’s not new. So this is something we can handle professionally. To suddenly say that it might be inappropriately handled, I think there’s a bit of a disconnect in that argument. I understand if criticism like that came from outside the U.S., but this is how museums have been practicing in the U.S. all along."
- On the works that would be sold: "We’re not talking about masterpieces. These are sometimes works on paper that are duplicates, or photographs that we own in multiples. And we don’t deaccession works by living artists."
- And he points out that "what we are considering doing, for this limited time period, is to actually allocate the funds that were already being generated from deaccessioning toward collection care and new funds being generated through our deaccessioning program, for this limited time period, not toward new acquisitions but toward collection care, meaning salaries and related costs of our employees who take care of the collection, such as conservators, mount makers, and collection managers. That’s the one change" (my emphasis).
"Judge Tucker’s 27-page ruling upheld their motions, saying the reporting was factually true and covered by the fair-report privilege, which protects news outlets that report accurately on public records and proceedings, like court cases or municipal meetings."
From an interview at artnet:
"I get into arguments with my progressive friends about this: I feel that deaccessioning for the purposes of diversification is always legitimate. History is something that I value greatly. But one of the things that’s part of the history of art is that its discourse was racist, and that should be acknowledged. Deaccessioning is one way to do that. It’s saying: We have an opportunity to comment upon history by critiquing the way this particular narrative was formed."
Sunday, February 14, 2021
"I don’t know how many billionaires sit on the board of trustees, arguably the most prestigious and desirable in Manhattan, but I am comfortable going with the adjective 'plenty.' Time to start writing lots more checks, or time to step aside." (UPDATED)
Friday, February 12, 2021
The Art Newspaper article I linked to in the update to the last post ("Rumbles of dissent") includes the following quote from Martin Gammon, author of Deaccessioning and its Discontents: A Critical History:
"The Met, like every other major encyclopeadic museum, deaccessions all the time, and there is nothing wrong in principle with extending that practice to support the direct care of collections in the current two-year window."
I take that to be a pretty standard view. There is nothing wrong -- in principle -- with extending that practice (i.e., the practice of routine deaccessioning) to support the direct care of collections.
So if we take the form of the sentence -- "There is nothing wrong, in principle, with extending the practice to _________________" -- we know there are at least two ways to fill in the blank that most people think are acceptable: to buy more work, and to support the direct care of the collection.
The question I've been asking (and asking) is: why can't there be a third? Why can't we say there is nothing wrong, in principle, with extending the practice to, for example, keep a failing institution from having to shut its doors? What are the arguments against filling in the blank in that way that don't also apply to filling in the blank with "to support direct care of the collection"? Why is supporting the direct care of the collection a more valuable thing than keeping from going bankrupt? Once you say the practice is okay for reasons A and B, why can't it also be okay for reason C? We have to look closely at reason C, and ask whether, in the particular case in front of us, it's worth selling work to support it. But in principle why should we rule out the possibility completely?
UPDATE: Deaccessioning Hall of Fame Scholar-in-Residence Brian Frye is with me: "What is the 'principle' that prohibits deaccessioning for an otherwise good purpose? There isn't one, which is why the deaccessioning police only ever raise their voices when challenged. What is the correct 'principle' for deaccessioning? Museums should deaccession works whenever the museum thinks it's the right choice. If you disagree, take it up with the board members, who are ultimately responsible. If they violate their duties, replace them."
I agree. The "principle" is that in each case we ought to "weigh the actual costs and actual benefits and try to determine whether, on balance, all things considered, the sale is a good idea."
Wednesday, February 10, 2021
"As Museums Push to Sell Art, Competing Ideas About Deaccessioning Are Playing Out in Public" (UPDATED)
In ARTnews, Andrew Russeth has a long, balanced piece on the state of the deaccessioning debate, with lots of good quotes, including:
- Baltimore's Christopher Bedford: "What we are doing is not for everyone, including the Christopher Knights of the world. There is a pressing, pressing, pressing need for change within institutions in this country, because we have been failing in our mission of providing the right kind of service."
- On the argument that museum board members should just step up and provide the needed funds, Brooklyn's Anne Pasternak: "We’re public institutions. Why is it that a handful of people are expected to carry the burden of a public institution that they didn’t create?"
- On the same question, the Everson's Elizabeth Dunbar: "We don’t have a huge collecting base here, nor do we have billionaire trustees on our board."
- Mark Gold: "What’s unethical about using the proceeds from one painting to pay people fairly, or to address social injustice?"
- Michael O'Hare: "Museums are a public good. We give them special financial privileges and tax-free buildings and whatnot. And their job is to maximize engagement with art and optimize engagement with art.” (Russeth summarizes O'Hare's position as follows: "reverse FASB’s position and make the AAMD’s changes permanent. Force museums to value their art on their balance sheets, then ask them tough questions about what they show, what sits in storage, and what they could sell—perhaps with a preference for other museums—to hire more employees, pay them better, and promote better engagement with art.")
- Russeth then asks: "Wouldn’t [O'Hare's] course of action push donors and government funding away from supporting museums?" O'Hare's answer: "If the only way by which you can make a claim on people’s wealth and the taxpayer is by lying, then sure. If a rich person asked me about art philanthropy, I would say, Go down the street, walk past the museum to the symphony or chamber-music-presenting organization and give them money—until things change."
- Christopher Knight calls O’Hare’s ideas "ridiculous" and suggests we "stop thinking like Ronald Reagan. Stop thinking that trickle-down works. It’s a mindset that says the market is the answer to all our problems. And it is not."
Tuesday, February 09, 2021
“It really feels like the dam has broken.
“To me, the most important sentence was the first line of the NYTimes article: Facing a potential shortfall of $150 million because of the pandemic, the Metropolitan Museum of Art has begun conversations with auction houses and its curators about selling some artworks to help pay for care of the collection. [Emphasis added.]
“Later, reference was made to the board's plan to revise the Met's collections care policy.
“I've always believed that expanding the definition of direct care was the way forward for museum's dealing with budget issues, more than the inevitable expansion of the AAMD rule. The significance of the freedom given each individual museum in the AAMD statement to define direct care for itself clears the way to deploy the proceeds of deaccessioning in a much more expansive and powerful way. Doing so frees revenue from other sources to be spent for expenses that are not within care of collections. At a minimum, it may constitute a museum survival kit. But it can also become a budgetary philosophy that results in not just the reallocation of expenses amongst various categories, but an increase in revenues to support important initiatives like collections diversity, fair pay, etc.”
This also is a good time to mention that Mark and I – along with additional friends of the blog Brian Frye and Nicholas O’Donnell – will be on a panel together next month as part of a Syracuse University symposium entitled Deaccessioning After 2020. Details here.
Saturday, February 06, 2021
"Like many institutions, the Met is looking to take advantage of a two-year window in which the Association of Art Museum Directors ... has relaxed the guidelines that govern how proceeds from sales of works in a collection (known as deaccessioning) can be directed." (UPDATED 3X)
The Met floats a trial balloon: Facing Deficit, Met Considers Selling Art to Help Pay the Bills. It's considering. It has "begun conversations." It would be "inappropriate" not to consider it, "when we’re still in this foggy situation." They are "engaging in [an] evaluation process" that is "the more conscientious course of action." "Every museum in the U.S. is having these conversations." For them "not to discuss this now would be irresponsible."
They would also like us to know that, if it happens (which it might not, it's only being considered, mind you) it will be done carefully. "As museums periodically do routinely, the Met’s curators will evaluate the holdings in their departments with an eye to which pieces are duplicative or have been supplanted by better examples, or have rarely — if ever — been shown. Works to be sold will then have to be approved by department heads, the museum’s director and the board before public auction."
Also, anticipating one of the main lines of attack from the Deaccession Police (i.e., however legitimate the need, the money should be raised by other means), the story includes the following from a Met curator: "We’re facing a huge budget deficit. We’ve tried for years to get more robust funding for conservation."
So the idea has been floated. The "conversation" has begun. Over to you, Deaccession Police.
UPDATE: Paddy Johnson: "The Association of Museum Directors should have disqualified museums with endowments over a certain size from deaccessioning work. The Met does not need to do this."
Greg Allen: "The Met rolls out its deaccession plan in an exclusive to the Times. Meanwhile no comments from the trustees with the billions to fund the budget gap who will vote on selling artwork instead."
UPDATE 2: Brian Frye: "This is big news. If the Met starts deaccessioning in order to generate operating revenue, it's game over for the deaccessioning police. I'll eat my hat if they don't go bananas."
UPDATE 3: They're going bananas. No hats need be eaten.
Tuesday, February 02, 2021
"Last night I watched 'The Art of the Steal,' a 2009 documentary about the Barnes Foundation. It’s an Impressionist museum that moved from Merion, Pennsylvania about 5 miles to central Philadelphia. According to the movie, the Barnes was pillaged." (UPDATED)
Kriston Capps watches The Art of the Steal and concludes: "THIS DOC IS INSANE."
I could have told him that a decade ago.
As he says, the bottom line is the Barnes remains:
—With all the paintings exactly the way weirdo Barnes hung them
—In a replica of the original rooms
—Only moved 5 miles
—Where millions of people can visit.
Yeah, a real tragedy.
Remember that the usual suspects were deeply opposed to the five-mile move, including Christopher Knight (who appears in the INSANE DOC and who says "we're used to hearing about corporate takeovers with for-profit corporations. But this was a nonprofit corporate takeover") and Lee Rosenbaum (who wrote an op-ed in the Times under the headline "Destroying the Museum to Save It").
UPDATE: Brian Frye: "The deaccessioning police have always been the gift that keeps on giving. Amusingly, 10 years later, they still haven't ginned up any remotely coherent arguments."
"Among the latest cases are a sculpture that used cheese as a medium to mock former President Trump’s U.S.-Mexico border wall, a mural called a symbol of San Francisco’s LGBTQ community, and a work highlighting Vermont’s role in the Underground Railroad."
Bloomberg Law: "Between October—when the U.S. Supreme Court let stand a $6.75 million judgment against a developer for violating VARA—and December 2020, artists filed at least a half dozen VARA claims, four of them over the destruction or removal of public art."
Sergio Muñoz Sarmiento says: "As the cliche goes, careful what you wish for. More law only means more regulation and, moreover, an increased reliance on a structure that may be betting against you."
Thursday, January 28, 2021
Tuesday, January 19, 2021
Wednesday, January 13, 2021
UPDATE: New York Times story here.
From David Steiner here.
Sunday, January 10, 2021
"The Everson Museum of Art in Syracuse, New York, which last year controversially sold off a prized Jackson Pollock drip painting to shore up funds to diversify its holdings, has announced the first new slate of artworks to enter its collection."
They include works by ceramicist Sharif Bey, multimedia artist Ellen Blalock, and painters Dawn Williams Boyd and Ellen Lesperance. The museum's director says "these works, in particular, speak directly to some of the most pressing issues of our time, including the perpetuation of racist ideologies and violence against people of color, the global impact of climate change, and systemic inequities related to race and gender, among others."
As artnet news notes, the art critic Christopher Knight described the Pollock sale as “inexcusable,” arguing that the museum was “betraying its legacy” by “privatizing” a remarkable and historic painting. See also here and here.
Thursday, January 07, 2021
The New York Times had an article yesterday headlined "San Francisco’s Top Art School Says Future Hinges on a Diego Rivera Mural."
Apparently, the San Francisco Art Institute "was close to losing its campus and art collection to a public sale last fall, when the University of California Board of Regents stepped in to buy its $19.7 million of debt from a private bank, in an attempt to save the 150-year-old institution from collapse," but, despite that, "years of costly expansions and declining enrollment at the institute have put it in peril, a situation that has worsened during the pandemic."
As a result, the institute is considering a sale of "a mural worth $50 million by Diego Rivera that officials say could help balance the budget." According to the Times, "the school has stressed that no final decision has been made to sell the mural. But behind the scenes, administrators and the institute's leaders are strongly pushing to do so, as it would pay off debts and allow them to make ends meet for an annual operating budget that typically runs around $19 million. (The board chairwoman, Pam Rorke Levy, disputed that, saying, 'Our first choice would be to endow the mural in place, attracting patrons or a partner institution that would create a substantial fund that would enable us to preserve, protect and present the mural to the public.')"
Would it change your answer if the buyer was "the filmmaker George Lucas [who] was interested in buying the mural for the Lucas Museum of Narrative Art in Los Angeles," thus satisfying the Ellis Rule?
The Deaccession Police will say the institute should just go shake the Magic Money Tree, but if you read the article you'll see that's not so easy.
UPDATE: SFAI MFA graduate (and conceptual law professor and Deaccessioning Hall of Fame Scholar-in-Residence) Brian Frye tweets: "I think the obvious answer is that the school should absolutely sell the mural. But it should also focus on reforming its board & management. Their incompetence is truly shocking."
Wednesday, January 06, 2021
Tuesday, January 05, 2021
"The provisions tightening scrutiny of the antiquities market were contained within the sprawling National Defense Authorization Act, which Mr. Trump vetoed last week and which the House and Senate voted to override"
The New York Times: Congress Poised to Apply Banking Regulations to Antiquities Market.
Nutshell summary: "Exactly how the new law works will be determined over the next year by the Financial Crimes Enforcement Network, a bureau within the Treasury Department, in consultation with the private sector, law enforcement and the public. Legal experts expect that the new antiquities regulations will be similar to others governing the precious metal and jewelry industries, where certain transactions are flagged to the authorities, who then determine whether they are suspicious. The law also seeks to end the use of shell companies to conceal the identities of buyers and sellers."
The usual good analysis from Nicholas O'Donnell here. (Nutshell summary: "Short version? It does less than it seems and probably isn't worth the cost, but it's a sign that change is coming and the market needs to get involved.")