Sunday, September 18, 2022

Where Were We? (UPDATED)

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.

UPDATE: It didn't stick. I guess we're done here. Thanks to all who've paid attention over the years. It meant a lot to me.

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."

Saturday, December 11, 2021

Wednesday, November 17, 2021

Fearless Girl in Limbo

 New York Times story here.

Thursday, November 11, 2021

Tuesday, November 02, 2021

'Fearless Girl' Gets Taken to Court"

A brief piece in The New Yorker.

The artist, Kristen Visbal, "made twenty-five editions of 'Fearless Girl' and two artist’s proofs. She sold eight replicas, for up to two hundred and fifty thousand dollars, including one to the law firm Maurice Blackburn, in Melbourne, Australia, and one to an investor in Oslo, who put the statue in front of the city’s Grand Hotel, which he owns. Visbal also sold more than a hundred miniature versions for about six thousand dollars each." But the Wall Street firm that commissioned it has sued, "accusing her of breach of contract, and of causing 'substantial and irreparable harm' to Fearless Girl and to [the firm] by selling copies."

For background, start here.

"Notorious Art Dealer Inigo Philbrick Set to Plead Guilty to Criminal Charges in Federal Court This Week"

 Eileen Kinsella with the scoop.

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

Different Bottle, Same W(h)ine

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.

Thursday, September 23, 2021

"Why Joint Acquisitions May Be the Way Forward for Cash-Strapped Museums"

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?