Sunday, September 18, 2022

Where Were We?

A few people have been kind enough to ask if everything was ok given the long radio silence around here. Everything is fine -- I've just had the growing sense that Twitter has killed blogging. I still feel that's the case and, as sweet and pleasant and non-toxic as things are over there, I have no intention of getting into the tweeting game. But in the back-to-school September spirit, I thought I might try to get this thing going again, returning to its original purposes of being a place to (1) collect links, to make it easier to find them when needed, (2) think through in real time issues of interest to the art law community, and (3) make fun of the Deaccession Police.

I can't promise how long it will last. Let's see how it goes.

And to kick things off, here's an interesting story that shows how formalistic the deaccession debate can be: 30 works "from an 81-piece-strong trove that was placed under MoMA's stewardship" will be sold at Sotheby's (estimate: $70-100 million) with the sales proceeds going toward "establishing an endowment for digital media and technology at MoMA, as well as towards the museum's 'new strategic acquisitions.'" As the article points out, "as the works were never officially in the collection of MoMA, but rather under its stewardship, the sale cannot be considered an instance of deaccessioning." So if the works had been given to the museum and then sold, it would be an egregious breach of the public trust etc. etc. (unless "establishing an endowment for digital media and technology" can be read as "acquiring more art").  But since the same works were merely under the museum's "stewardship" (whatever that means), it's completely fine.

Monday, March 28, 2022

BREAKING: Cert Granted in Warhol-Goldsmith Fair Use Case (UPDATED)

Big news.

Background here.

UPDATE: Unsurprisingly, lots of coverage. Adam Liptak in the Times ("The case will test the scope of the fair use defense to copyright infringement and how to assess if a new work based on an older one meaningfully transformed it"), Eileen Kinsella at artnet news ("The decision may have big implications for artists who appropriate or remix existing images, an area of law that has long remained murky").

Sergio Muñoz Sarmiento:

"We certainly hope–as much as one can hope for anything these days–that SCOTUS cleans up the wasteland that has become of 'fair use' interpretation. One would think, and hope I suppose, that with many of the sitting justices adhering to textualism, they will fully jettisons the nonsensical 'transformativeness' test that has plagued us like a really bad case of Covid since the mid-1990s."

Dave Steiner likewise hopes it "rid[s] us of the odious 'transformative' test for fair use."

Brian Frye: "Considerable likelihood of reversal, but not a sure thing. But it would be unusual for SCOTUS to take a case like this one, unless there were the votes to reverse."

Mark Lemley also hopes for a reversal of "a truly disastrous Second Circuit opinion," but cautions: "I admit there is a risk of disaster, especially with Justice Breyer leaving the Court.  But I'm not sure they would have taken it if they wanted to leave the decision in place."

Never underestimate the odds of disaster.

Wednesday, March 09, 2022

Tell me again about the public trust ($30 million Picasso edition)

Bringing the blog out of hibernation just to remind everyone that a work of art, having fallen under the aegis of a museum, is held in the public trust, to be accessible to present and future generations. Unless the sales proceeds "will go toward acquisitions of new works for the museum’s permanent collection," in which case: screw those future generations.

A reminder, too, that although the museum will be receiving a big pile of money in exchange for the work, this is under no circumstances to be considered monetization.

Ok back to sleep now.

Tuesday, January 25, 2022

Fordjour Suit Settles

Page Six has the scoop.  Background here.

Wednesday, January 05, 2022

"I have been hacked"

Collector loses more than $2m of NFTs overnight.

Alfred Steiner (whose piece on NFTs everyone should read) says: "Everyone understands how to store and safeguard paper certificates. Only a handful of computer scientists understand how the blockchain works. So NFTs involve a significantly higher degree of faith than paper certificates."