This Bloomberg piece on the state of the art market includes the following:
"Christie’s, along with Sotheby’s and Phillips de Pury & Co., abandoned guaranteeing minimum prices to sellers at the end of 2008. Many owners of high-value pieces, particularly contemporary works, turned to private transactions rather than risk high-value works at auction in a falling market. 'You will see guarantees coming back,' said [Christie's CEO Edward] Dolman. 'But it won’t be like the height of the market in 2007. We’ll be looking to share the risk much more. ...' Christie’s is currently discussing guarantees with certain sellers, Dolman said."
Saturday, January 30, 2010
Friday, January 29, 2010
Tell me again about the "public trust" (a continuing series)
Carol Vogel's "Inside Art" column today reports that LACMA sold 16 works at Sotheby’s yesterday for $3.8 million (more than double the $1.7 million high estimate).
Remember: "once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations."
Remember: "once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations."
Wednesday, January 27, 2010
Reversed
At the close of his September 2007 oral ruling granting Mass MoCA summary judgment in its lawsuit against artist Christoph Büchel, District Court Judge Michael Ponsor said: "I would just say, as an admonition, not to be overly comforted by my [decision], because I would imagine if this matter goes before the First Circuit, it will be scrutinized afresh, and only a reckless person would predict what the Court of Appeals is likely to do with the very complicated issues that this cases raises."
Well, he was right about that. Today the First Circuit reversed his decision, holding that "the record permits the inference that … Museum staff members were disregarding [Büchel's] instructions and intentionally modifying 'Training Ground' in a manner that he did not approve." (Longtime readers will recall that I was one of Büchel's lawyers at the District Court level. Volunteer Lawyers for the Arts kindly stepped in to handle the appeal, along with George Conway and his team at Wachtell, Rosen, Lipton & Katz, on a pro bono basis. As is obvious from the result, they did a terrific job on the appeal.) The Court forcefully held that VARA applies to unfinished works, and clearly rejected Mass MoCA's "contention … that the unfinished installation might constitute a joint work of Büchel and the Museum." A good day for artists' rights.
Well, he was right about that. Today the First Circuit reversed his decision, holding that "the record permits the inference that … Museum staff members were disregarding [Büchel's] instructions and intentionally modifying 'Training Ground' in a manner that he did not approve." (Longtime readers will recall that I was one of Büchel's lawyers at the District Court level. Volunteer Lawyers for the Arts kindly stepped in to handle the appeal, along with George Conway and his team at Wachtell, Rosen, Lipton & Katz, on a pro bono basis. As is obvious from the result, they did a terrific job on the appeal.) The Court forcefully held that VARA applies to unfinished works, and clearly rejected Mass MoCA's "contention … that the unfinished installation might constitute a joint work of Büchel and the Museum." A good day for artists' rights.
Bad to Worse
The LA Times reports: "Artist Shepard Fairey is facing a criminal investigation in connection with his admitted misconduct in the ongoing legal case with the Associated Press."
Not good.
Sergio Muñoz Sarmiento says: "To what extent will this affect the merits of the 'fair use' argument is unknown." But, as Ben Shefner points out, "the civil copyright case may now be the least of his worries."
Not good.
Sergio Muñoz Sarmiento says: "To what extent will this affect the merits of the 'fair use' argument is unknown." But, as Ben Shefner points out, "the civil copyright case may now be the least of his worries."
Tuesday, January 26, 2010
Hazardous (UPDATED)
I've been meaning to flag Michael Rushton's characteristically thoughtful response to my post last week on the moral hazard argument against deaccessioning. He helpfully marshals a lot of the academic commentary on agency problems generally, though concedes "the literature on nonprofits is not as deep." His bottom line:
"In the end ... I appreciate DZ's point that we just are not yet in a position to say with accuracy whether the costs of the moral hazard I worry about exceed the benefits from flexible access to funds through deaccessioning in times of crisis. But I will maintain the cost is there, even if, under new, relaxed norms governing deaccessions, the costs would not immediately be apparent."
One quick thought in response. We already have real-world experience we can draw on to assess the effects of a permissive deaccessioning regime on museum management. U.S. museums routinely deaccession to raise money to buy more art. Is there any evidence that that leads to poor management (in the area of acquisitions or otherwise)? Does it seem to encourage "pet projects and perquisites and risky schemes that are contrary to the interests of the organization"? My understanding is that most (or at least many) European museums do not deaccession at all (not even to buy more art). Do they seem better managed than their U.S. counterparts? It would make for a fascinating research project. In any case, it's interesting that you never hear about the moral hazards of acquisition-related deaccessioning.
UPDATE: Rushton responds.
"In the end ... I appreciate DZ's point that we just are not yet in a position to say with accuracy whether the costs of the moral hazard I worry about exceed the benefits from flexible access to funds through deaccessioning in times of crisis. But I will maintain the cost is there, even if, under new, relaxed norms governing deaccessions, the costs would not immediately be apparent."
One quick thought in response. We already have real-world experience we can draw on to assess the effects of a permissive deaccessioning regime on museum management. U.S. museums routinely deaccession to raise money to buy more art. Is there any evidence that that leads to poor management (in the area of acquisitions or otherwise)? Does it seem to encourage "pet projects and perquisites and risky schemes that are contrary to the interests of the organization"? My understanding is that most (or at least many) European museums do not deaccession at all (not even to buy more art). Do they seem better managed than their U.S. counterparts? It would make for a fascinating research project. In any case, it's interesting that you never hear about the moral hazards of acquisition-related deaccessioning.
UPDATE: Rushton responds.
Monday, January 25, 2010
Linkage
- A Tracey Emin forgery ring?
- London's ICA could close by May.
- "A woman taking an adult education class at the Metropolitan Museum of Art accidentally lost her balance and fell into 'The Actor,' a rare Rose Period Picasso, tearing the canvas about six inches along its lower right-hand corner." Good teaser headline from the NY Daily News here. The Art Market Monitor is surprised this sort of thing doesn't happen more often.
- Revisiting the uncollectable artwork.
Friday, January 22, 2010
"The burden of concealing something really rips you open inside"
The LAT's Mike Boehm talks to Shepard Fairey, "who last fall admitted that he'd lied initially about which AP photo the 'Hope' poster was based on."
Wednesday, January 20, 2010
"Itself an exercise in spin"
More reviews of The Art of the Steal, the Barnes documentary which opens theatrically soon. Film Journal International says "claims of objectivity, made by the filmmakers at [the NY Film Festival], are an artful dodge: The title says it all. The filmmakers side with those who argue that the Barnes Collection has been stolen. ... If the filmmakers had simply explained why the audience should care, beyond the fact that an imperious, dead millionaire’s trust had been broken, The Art of the Steal would have served the interests it ostensibly represents—the people who care about art."
One who doesn't side with those who argue that the Barnes Collection has been stolen is Lee Rosenbaum. In a post today with more on her visit to the recent Art Commission hearing on the project, she says the following:
"I don't agree with characterizing the transfer to Philadelphia as a 'theft.' I think that the Pennsylvania and Philadelphia powers-that-be understandably wanted to lure that valuable cultural resource to the big city. The Barnes board, to my mind, wrongly capitulated to that pressure."
More anti-theftists here and here and a related post of mine here.
One who doesn't side with those who argue that the Barnes Collection has been stolen is Lee Rosenbaum. In a post today with more on her visit to the recent Art Commission hearing on the project, she says the following:
"I don't agree with characterizing the transfer to Philadelphia as a 'theft.' I think that the Pennsylvania and Philadelphia powers-that-be understandably wanted to lure that valuable cultural resource to the big city. The Barnes board, to my mind, wrongly capitulated to that pressure."
More anti-theftists here and here and a related post of mine here.
This one REALLY sells itself (UPDATED)
Felix Salmon on an artwork, by Caleb Larsen, that "is so commercial that it can’t be collected." The purchase contract apparently includes the following:
"Artist has created a work of art titled 'A Tool to Deceive and Slaughter (2009)' ('the Artwork') which consists of a black box that places itself for sale on the auction website 'eBay' (the 'Auction Venue') every seven (7) days. The Artwork consists of the combination of the black box or cube, the electronics contained therein, and the concept that such a physical object 'sells itself' every week."
At his own website, Larsen explains: "Every ten minutes the black box pings a server on the internet via the ethernet connection to check if it is for sale on the eBay. If its auction has ended or it has sold, it automatically creates a new auction of itself. If a person buys it on eBay, the current owner is required to send it to the new owner. The new owner must then plug it into ethernet, and the cycle repeats itself."
UPDATE: More from Regina Hackett.
"Artist has created a work of art titled 'A Tool to Deceive and Slaughter (2009)' ('the Artwork') which consists of a black box that places itself for sale on the auction website 'eBay' (the 'Auction Venue') every seven (7) days. The Artwork consists of the combination of the black box or cube, the electronics contained therein, and the concept that such a physical object 'sells itself' every week."
At his own website, Larsen explains: "Every ten minutes the black box pings a server on the internet via the ethernet connection to check if it is for sale on the eBay. If its auction has ended or it has sold, it automatically creates a new auction of itself. If a person buys it on eBay, the current owner is required to send it to the new owner. The new owner must then plug it into ethernet, and the cycle repeats itself."
UPDATE: More from Regina Hackett.
Tuesday, January 19, 2010
"One of the most elaborate and difficult acquisitions we have ever made"
In this Sunday's NYT Magazine, Arthur Lubow had an interesting article on artist Tino Sehgal, who makes "ephemeral' "live-action" works, a show of which opens at the Guggenheim later this month. The whole thing is fascinating, but, from an art law perspective, this bit caught my eye:
"Since there can be no written contract, the sale of a Sehgal piece must be conducted orally, with a lawyer or a notary public on hand to witness it. The work is described; the right to install it for an unspecified number of times under the supervision of Sehgal or one of his representatives is stipulated; and the price is stated. The buyer agrees to certain restrictions, perhaps the most important being the ban on future documentation, which extends to any subsequent transfers of ownership. 'If the work gets resold, it has to be done in the same way it was acquired originally,' says Jan Mot, who is Sehgal’s dealer in Brussels. 'If it is not done according to the conditions of the first sale, one could debate whether it was an authentic sale. It’s like making a false Tino Sehgal, if you start making documentation and a certificate.'"
"Since there can be no written contract, the sale of a Sehgal piece must be conducted orally, with a lawyer or a notary public on hand to witness it. The work is described; the right to install it for an unspecified number of times under the supervision of Sehgal or one of his representatives is stipulated; and the price is stated. The buyer agrees to certain restrictions, perhaps the most important being the ban on future documentation, which extends to any subsequent transfers of ownership. 'If the work gets resold, it has to be done in the same way it was acquired originally,' says Jan Mot, who is Sehgal’s dealer in Brussels. 'If it is not done according to the conditions of the first sale, one could debate whether it was an authentic sale. It’s like making a false Tino Sehgal, if you start making documentation and a certificate.'"
Sunday, January 17, 2010
More on the Fresno Museum Closing
I've been meaning to mention this interesting story in the LA Times on the closing of the Fresno Metropolitan Museum.
First, the story confirms that the museum's entire art collection will now "be sold at auction."
So we've got a real-life reminder that if we're unwilling to let a financially-troubled museum sell one or two works, the result may well be that it ends up having to sell all its works.
Now, it's interesting to read that the whole collection here "has been appraised at a value of around $2.1 million." Given that the museum has debts of "between $4.4 million and $4.8 million," this probably wasn't a case where deaccessioning could have been of much help.
But in theory, it could have been, and it still seems silly to me to say that, no matter the circumstances, a museum may never sell work to keep from having to shut its doors. Suppose that, instead of $2 million, the museum's collection was worth $200 million, or more. Would we still rather it close (and thus have to sell its entire collection at auction) than sell one or two works and stay afloat?
Michael Rushton says the answer is yes, because, in the long run, that will lead to better museum management overall. Actually, that's not quite right. What he says is that, if we relax the norms against deaccessioning, "we could see an unwelcome shift in museum management" (my emphasis). Well, sure, we could see that. But maybe we wouldn't. Maybe if we removed the deaccessioning taboo, we'd find that it isn't doing very much work at all towards improving museum management. Maybe we'd find that museums continue to be managed about as well as they are now. Consider in this context the "good" kind of deaccessioning: deaccessioning to raise money to buy more art. (For example.) Do we think that leads to lax asset management by museums? Do they spend their acquisitions budgets unwisely because they know they can always just sell some more work (rip it right out of the "public trust") any time they'd like to acquire something? Does it make them less diligent about fundraising etc.? I don't know, but no one seems to worry about that in the area of acquisitions.
The larger point, though, is: even assuming the deaccessioning taboo leads to somewhat better museum management in general, how do we know how much that better management is worth and when do its costs get large enough that they outweigh those benefits? It's not so much a time inconsistency problem as one of balancing certain costs (today and in the future) against extremely hard to measure benefits (today and in the future). So, according to the LA Times story, Fresno is part of "a growing list of about 20 U.S. museums of various types and sizes that have folded in the last year." In addition to that, "dozens of other museums have been forced to trim budgets, cancel or postpone exhibitions and/or layoff staff." At what point do we decide that the (certain) costs of the no-deaccessioning rule outweigh the (possible) benefits? When the National Academy closes its doors? When we lose the Detroit Institute?
I think, before signing on to accept these very real costs, I'd like to see a lot more evidence that relaxing the norm against deaccessioning -- even very slightly, as in the Dobrzynski Proposal -- would have such grave consequences for museum management generally.
First, the story confirms that the museum's entire art collection will now "be sold at auction."
So we've got a real-life reminder that if we're unwilling to let a financially-troubled museum sell one or two works, the result may well be that it ends up having to sell all its works.
Now, it's interesting to read that the whole collection here "has been appraised at a value of around $2.1 million." Given that the museum has debts of "between $4.4 million and $4.8 million," this probably wasn't a case where deaccessioning could have been of much help.
But in theory, it could have been, and it still seems silly to me to say that, no matter the circumstances, a museum may never sell work to keep from having to shut its doors. Suppose that, instead of $2 million, the museum's collection was worth $200 million, or more. Would we still rather it close (and thus have to sell its entire collection at auction) than sell one or two works and stay afloat?
Michael Rushton says the answer is yes, because, in the long run, that will lead to better museum management overall. Actually, that's not quite right. What he says is that, if we relax the norms against deaccessioning, "we could see an unwelcome shift in museum management" (my emphasis). Well, sure, we could see that. But maybe we wouldn't. Maybe if we removed the deaccessioning taboo, we'd find that it isn't doing very much work at all towards improving museum management. Maybe we'd find that museums continue to be managed about as well as they are now. Consider in this context the "good" kind of deaccessioning: deaccessioning to raise money to buy more art. (For example.) Do we think that leads to lax asset management by museums? Do they spend their acquisitions budgets unwisely because they know they can always just sell some more work (rip it right out of the "public trust") any time they'd like to acquire something? Does it make them less diligent about fundraising etc.? I don't know, but no one seems to worry about that in the area of acquisitions.
The larger point, though, is: even assuming the deaccessioning taboo leads to somewhat better museum management in general, how do we know how much that better management is worth and when do its costs get large enough that they outweigh those benefits? It's not so much a time inconsistency problem as one of balancing certain costs (today and in the future) against extremely hard to measure benefits (today and in the future). So, according to the LA Times story, Fresno is part of "a growing list of about 20 U.S. museums of various types and sizes that have folded in the last year." In addition to that, "dozens of other museums have been forced to trim budgets, cancel or postpone exhibitions and/or layoff staff." At what point do we decide that the (certain) costs of the no-deaccessioning rule outweigh the (possible) benefits? When the National Academy closes its doors? When we lose the Detroit Institute?
I think, before signing on to accept these very real costs, I'd like to see a lot more evidence that relaxing the norm against deaccessioning -- even very slightly, as in the Dobrzynski Proposal -- would have such grave consequences for museum management generally.
Perhaps they should try a bake sale instead
According to The St. Petersburg Times, the Salvador Dali Museum needs $6 million to complete construction on a new building. The president of the museum's board says they "will be forced to take out loans using art from the Dali collection as collateral if the tax dollars or new contributions don't come through soon."
I don't believe that would be permitted under the AAMD/AAM "ethics" rules.
I don't believe that would be permitted under the AAMD/AAM "ethics" rules.
Linkage
- Two-year federal prison sentence for attempting to sell stolen artworks.
- Duveen was right! (Related post here.)
- Lindsay Pollock on the rise of third-party guarantees.
- Leibovitz-Lavazza suit settled.
- How the Brooklyn Museum is putting its collection online.
Thursday, January 14, 2010
Update on the Brodsky Bill (UPDATED)
The NYT's Robin Pogrebin reports on "a round-table meeting [this morning] billed as the first discussion of deaccessioning among state policymakers and museum professionals in a public setting." Brodsky's aim seems to be to "to make sure that we do not, in a crisis, see a massive privatization of art" -- so let me again just point out that the Ellis Rule would accomplish the same thing.
Some additional thoughts on the session from Judith Dobrzynski: "The Brodsky bill is in no way a done deal."
UPDATE: More from Lee Rosenbaum (with video): "Most of this, for me, was 'heard this, done that.'"
Some additional thoughts on the session from Judith Dobrzynski: "The Brodsky bill is in no way a done deal."
UPDATE: More from Lee Rosenbaum (with video): "Most of this, for me, was 'heard this, done that.'"
Wednesday, January 13, 2010
Linkage
- Update on the Hotel Drouot investigation.
- "A 19th-century Impressionist artwork stolen off the wall of a French museum nearly three decades ago is going back to the scene of the crime."
- "A Claude Monet painting stolen in 2000 from a museum in western Poland has been recovered."
"They didn't fit the theme of the current installation"
ARTINFO.com: "The New York Post reports that the Metropolitan Museum of Art has pulled images of the Prophet Mohammed from its galleries devoted to Islamic art and suggests that the move is the latest chapter in the museum’s 'history of dodging criticism.' Some Muslims believe that Islam forbids the delay of such images and have led protests in recent years objecting to their display in cartoons, most infamously in Denmark."
Monday, January 11, 2010
More on the Dobrzynski Proposal
Speaking of sensible reform proposals, there've been a number of interesting follow-ups to Judith Dobrzynski's deaccessioning op-ed in the NYT.
First, there were several letters to the editor in response, including one from the president and CEO of the J. Paul Getty Trust, but I liked the one from the Brandeis student best:
"Here’s a simpler, sounder system to guide deaccession: The bought can be sold. This system reserves the sanctity of donor intent, as well as that of artwork acquired under special circumstances. And it ignores the largely unjustified slippery-slope paranoia that if allowed to sell one piece of artwork in a time of need, then institutions would more easily part with others in the future. If the struggling institution purchased a piece of artwork free of restrictions preventing resale, then that institution should be permitted to sell it at will."
Dobrzynski responds to some of the responses here, including the following:
"Donors will not give art if they know it may some day sold. This is a canard: they already know (or should know) that their gifts may be sold to raise money for future acquisitions. Those who fear this put restrictions on their gifts."
I think that's quite right. Remember (and I know I've made this point a thousand times): we're not talking about moving from a world where works are never deaccessioned to one where suddenly it's okay to deaccession. We're talking about moving from a world where deaccessioning for one purpose (the purchase of more art) happens all the time to one where deaccessioning for other valuable purposes (e.g., preventing a museum from having to close its doors or, worse, move 4.6 miles away to Philadelphia to a brand-spanking new facility designed by Tod Williams and Billie Tsien) is, in the right circumstances, occasionally permitted.
Finally, Felix Salmon weighs in on Dobrzynski's proposal:
"Essentially, Dobrzynski here is taking the Kimmelman rule — that museums should get first dibs on any deaccessioning sale — and beefing it up with two extra layers: first arbitration, and second the option to buy in the wake of a public auction. Personally, I think that the Ellis rule is still the best option, since it puts the focus where it belongs — on the art, rather than on the museum. Both Dobrzynski and Kimmelman would let art disappear from a museum into private hands, never to be seen again; Ellis wouldn’t."
First, there were several letters to the editor in response, including one from the president and CEO of the J. Paul Getty Trust, but I liked the one from the Brandeis student best:
"Here’s a simpler, sounder system to guide deaccession: The bought can be sold. This system reserves the sanctity of donor intent, as well as that of artwork acquired under special circumstances. And it ignores the largely unjustified slippery-slope paranoia that if allowed to sell one piece of artwork in a time of need, then institutions would more easily part with others in the future. If the struggling institution purchased a piece of artwork free of restrictions preventing resale, then that institution should be permitted to sell it at will."
Dobrzynski responds to some of the responses here, including the following:
"Donors will not give art if they know it may some day sold. This is a canard: they already know (or should know) that their gifts may be sold to raise money for future acquisitions. Those who fear this put restrictions on their gifts."
I think that's quite right. Remember (and I know I've made this point a thousand times): we're not talking about moving from a world where works are never deaccessioned to one where suddenly it's okay to deaccession. We're talking about moving from a world where deaccessioning for one purpose (the purchase of more art) happens all the time to one where deaccessioning for other valuable purposes (e.g., preventing a museum from having to close its doors or, worse, move 4.6 miles away to Philadelphia to a brand-spanking new facility designed by Tod Williams and Billie Tsien) is, in the right circumstances, occasionally permitted.
Finally, Felix Salmon weighs in on Dobrzynski's proposal:
"Essentially, Dobrzynski here is taking the Kimmelman rule — that museums should get first dibs on any deaccessioning sale — and beefing it up with two extra layers: first arbitration, and second the option to buy in the wake of a public auction. Personally, I think that the Ellis rule is still the best option, since it puts the focus where it belongs — on the art, rather than on the museum. Both Dobrzynski and Kimmelman would let art disappear from a museum into private hands, never to be seen again; Ellis wouldn’t."
"Does it make sense to keep a large percentage of a museum’s art assets in storage, never to be seen, when the same museum is laying off curators?"
Andras Szanto has a long, interesting piece in The Art Newspaper on the situation facing US museums. The whole thing is worth reading, but, for obvious reasons, I found the following particularly interesting:
"According to current guidelines, museums can only sell art to buy other art, not to cover operations. Those rules exist for a good reason. But when finances are pushed to the brink, museums’ largest asset category—its art—is more likely to get a second look. 'Does it make sense to keep a large percentage of a museum’s art assets in storage, never to be seen, when the same museum is laying off curators?' asks a donor to several major American museums. 'How does one responsibly go to benefactors for more support?' Sensible reform proposals—for example, to allow sales when objects stay in the public domain—are already being floated."
"According to current guidelines, museums can only sell art to buy other art, not to cover operations. Those rules exist for a good reason. But when finances are pushed to the brink, museums’ largest asset category—its art—is more likely to get a second look. 'Does it make sense to keep a large percentage of a museum’s art assets in storage, never to be seen, when the same museum is laying off curators?' asks a donor to several major American museums. 'How does one responsibly go to benefactors for more support?' Sensible reform proposals—for example, to allow sales when objects stay in the public domain—are already being floated."
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