Tuesday, August 24, 2021

"After such consideration, we emphatically reject AWF’s assertion that Google 'comprehensively refutes the panel’s reasoning.'"

The Second Circuit stands by its Warhol-Goldsmith fair use decision, even after Google v. Oracle. The amended decision is here.

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

The Di Rosa has ditched its deaccessioning plan

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."

Background here.

"The suit alleges that the Thuts consigned fake Giacometti works."

 ARTnews:  Florida Couple Sold Allegedly Dubious Diego Giacometti Works Through Sotheby’s.

"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

Three Years for Angela Gulbenkian

 Story here. Background here.

"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."

Story here. Background here.

Interesting NFT Tax 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.'"

So This Is Chrismas

Eileen Kinsella in artnet news: Notorious Los Angeles Art Dealer Douglas Chrismas Has Been Charged With Embezzling $260,000 From His Former Gallery.

Artist Pension Trust Update

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.