"Legal tips for art lovers"

I'm quoted in this piece by Martha Lufkin in The Art Newspaper.

How a charming art dealer became a wanted fraudster

On the Chowaiki saga.  Background here.

Recognize this practice for what it is

I've basically been arguing here for a decade now that there can be two coherent theories on deaccessioning.

You can think it's always wrong -- that museums hold their works in the public trust, for the benefit of present and future generations, and they should never be sold.

Or you can think works can, on occasion, be sold, if there is a sufficient reason.  That reason can be to acquire other work.  Or it can be something else (e.g., to keep from going out of business).  You have to look closely at each individual case and decide.  (This is my view.)

It's the middle view -- the view of the Deaccession Police, the view of the AAMD, the conventional wisdom in the field -- that is, frankly, ridiculous.  It holds that deaccessioning is deeply unethical and a violation of the public trust if the proceeds of sale are used for Purpose X (anything other than buying art) … but completely fine if the proceeds are used for Purpose Y (buying art).  I've never understood how that could be at all persuasive to anyone.

Former museum director Steven Miller has a piece in The New Criterion coming at it largely from the first perspective, and calling out "the obvious hypocrisy of voicing concern for the survival of collections, only to sell them into oblivion":

"Though it is largely accepted within the profession, deaccessioning is still a controversial issue.  The debate surrounding it surfaces with alarming frequency.  For the most part, however, complaints are rarely directed at the practice itself, but at what happens if any profits realized from the sale of the museum collections are 'misused.'  Furor tends to erupt only when income will cover operating expenses or capital and debt payments, rather than pay for future acquisitions.  Oddly, controversy about commercial deaccessioning sidesteps the fact that, unless the purchase is made by another museum, objects will probably be lost to the public forever.  How does that practice align with the preservation imperative museums repeatedly embrace …?  Put simply:  it does not."

He adds that once a work is sold, "we might as well have tossed them on a bonfire.  This is a total abrogation of museological duty."

What's his answer?  First, "recognize this practice for what it is and acknowledge that it contradicts a museum's commitment to preserving and caring for its collections."  And then he ends up signing on to the Ellis Rule:

"Correcting the unfortunate results of unbridled commercial deaccessioning is simple.  An item can be deaccessioned and kept by the museum for educational purposes.  Or it can be sold or given to another museum.  Everyone wins in this situation …. One museum's loss can always be another's gain."

Settlement in the Anish Kapoor-N.R.A. Lawsuit

Story here.  Background here.  Kapoor declares victory.  On the other side, the N.R.A. says the suit was "baseless" but that "it agreed to remove the image 'to avoid the cost and distraction of litigation.' It also said that the settlement does not require the group to pay Mr. Kapoor any money."

Attorney Fee Award in California Resale Royalty Lawsuit

Opinion here.  Brief tweet-summary here.  Background here.

"It almost sounded too good to be true: a Picasso painting stolen in one of the world’s most famous art heists had been found under a tree in a snowy Romanian forest."

"On Monday it emerged it was totally too good to be true, part of an elaborate and carefully staged piece of performance art by a radical Belgian theatre company."

MoMaCha is now MaMaCha

MoMA had obtained a preliminary injunction in October.  Story here.  Background here.

"Graffiti Artists are Gaining Recognition—and Rights"

Good overview of recent developments from Bennington's K.E. Gover.  An excerpt:

"Unlike traditional forms of visual art, aerosol art on building walls cannot easily be bought or sold, and they are usually understood to be ephemeral by their very nature. In one sense, this makes exterior aerosol art an uncomfortable fit for the paradigmatic VARA cases presumably intended by Congress when it passed the statute nearly thirty years ago. On the other hand, however, it highlights the interest that the 5 Pointz artists had in the preservation of their works: they could not sell them, but their ongoing presence could lead to future commissions and professional opportunities. In that sense, moral rights, despite their designation as non-economic rights, can have very real material consequences for artists. Reputation is a form of wealth."

Have the Washington Principles been a failure?

Noah Charney thinks they have.

Hail Fredonia?

SUNY Fredonia sold a painting by the Georgian painter Niko Pirosmani for $2.3 million at Sotheby's London this week.

Question:  was this sale "ethical"?  How should the Deaccession Police react to it?

The answer is it depends.  Was the painting held in something the university called a "museum"?  If so, awful, unbearable, a massive crisis, Stalin-esque.

Or was it held other than as part of a university museum -- in which case, all is fine, yawn, nothing to see here.

In this case, according to Inside Higher Ed, the painting was in something called "the Stefan Zweig Collection," which "is not part of a university museum and contains more than just artwork." So nothing to worry about, totally ethical.

You tell me how any of that makes sense as a way to evaluate these sorts of sales.

"People thought maybe I was rash and should put it down to one of life’s rich experiences. But people defrauding other people, especially in the art market, should not be allowed to get away with it."

Andy Hall won his fraud trial against a former college professor and her son who sold him a series of paintings they claimed were by Leon Golub.  A jury awarded him $465,000 (the amount he had apparently paid for the works).  Graham Bowley has the story here.  Background here.

"An Artist Bought a Banksy Piece Just So He Could Destroy It"

Story here.  He paid $730,000 for it and says he plans to whitewash it … and then sell it for a million dollars.

Banksy can invoke VARA to prevent this, though Guy Rub doesn't think he should be able to.  And The Fashion Law blog doesn't think he will:

"The question becomes: will Banksy attempt to put a stop to English’s plan?  It seems unlikely.  Actually enabling English to go through with it seems like just the type of stunt and resulting publicity that Banksy is accustomed to courting. It is just barely a month after the secretive British artist saw that his famous 2006 work, Girl with Balloon, was put through a shredder just moments after it had been auctioned off for a record $1.4 million in London."

"If the number and relevance of galleries were to decline, how might this affect artistic content?"

Tyler Cowen has some hypotheses and, like all his hypotheses, they're worth considering.

"A Cunning Husband-and-Wife Duo Sold Hundreds of Forged Artworks in Finland."

"Now, They Are Headed to Prison."

Answer: yes

The Nation:  Can You Copyright a Quilt?

Tell me again about the public trust (one museum's 19th century photo sale seems to be the Met's gain edition)

The Times reports on a sale of a group of Carleton Watkins photographs by the Hispanic Society in New York to an "unknown donor" who is giving them to the Met.

It's presented as a good news story -- and it is ("They stay in New York but also they go somewhere where they'll be cared for and appreciated") -- but, strangely, there's no mention of how the sales proceeds will be used.  We do hear that "the sale garnered more than $1 million for the Hispanic Society, whose doors are now closed because the museum is in the midst of a two-year renovation expected to cost about $15 million" -- so perhaps the implication is that the money will go towards those costs.  But we don't know for sure.  Don't we need to know the answer to that question before we can decide whether this sale really is the good news it's being portrayed as or, alternatively, a repulsive, unethical, Stalinesque betrayal of the public trust?  (I don't, but I would think the Deaccession Police do.  Sanctions may be in order.)

"Engelmayer found that it was too early to say whether or not Viktor would be able to prove in a non-speculative fashion that the use of her work had influenced sales of the single and album, because the discovery process is still ongoing in the case."

Artist Lina Iris Viktor survives a motion for summary judgment on a key damages issue in her infringement suit against Kendrick Lamar.  You can read the decision here.

"Terms of the agreement between the estate and the studio were not immediately made available."

A settlement in the Ana Mendieta-Suspiria lawsuit.

Nailed this one.

Tell me again about the public trust (three paintings by Georgia O'Keeffe edition)

Because they are assuredly not held in the public trust, to be accessible to present and future generations, the three paintings, by Georgia O'Keeffe, are being sold by the Georgia O'Keeffe Museum, to buy … other works by Georgia O'Keeffe?  Fortunately for the Museum, there's no such thing as the public trust or else some people might think this is problematic.

"Gagosian filed a motion to dismiss in the New York State Supreme Court, asserting that Tananbaum is a 'highly sophisticated art collector' who is aware of Koons’s reputation as 'a perfectionist who often takes years' to make his sculptures."

Story here.

This is the one with the ouroboros.