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."

Copyright Lately's Aaron Moss has a similar reaction to mine re the Second Circuit's Warhol decision:

"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

One person who will not be shopping for t-shirts at the Deaccessioning Hall of Fame gift shop ...

 ... 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?

Eight Takeaway from Last Week's Deaccessioning Conference

From Brian Boucher at artnet. (I mentioned the conference earlier here.)

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

"Aren’t we still, basically, in the dark?" (UPDATED 3X)

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

Speaking of the Deaccessioning Debate (UPDATED)

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.

UPDATE: "The range of opinions was on full display at the conference ...."

"Selling Art to Pay the Bills Divides the Nation’s Museum Directors"

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."

Preliminary injunction denied in the Vermont Law School murals case. Story here. Background here.

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?