"If an artist who conceived a work says that it is unfinished and should not be exhibited, it isn’t — and shouldn’t be. End of story."

So says Roberta Smith in a piece on the front page of the Arts section of Sunday's New York Times. It begins: "When a museum behaves badly, it’s never pretty. But few examples top the depressing spectacle at the Massachusetts Museum of Contemporary Art."

Other highlights:

• "By opening this show without [Büchel's] assent, the museum has broken faith with the artist, the public and art itself."
• "Although museums still focus most of their energy on finished works ..., they now routinely function as patrons, using their budgets to help artists create works from scratch. ... [But] there are dangers, including the possibility that in controlling the purse strings, a museum starts thinking of itself as a co-author who knows what the artist wants better than he or she does."
• "Initially I felt some sympathy for Mass MoCA. ... But when the museum became set on opening the unfinished piece over Mr. Büchel’s objections, my sympathy evaporated. And when I visited Mass MoCA, my sentiments curdled."
• "[B]y opening this strange quasi display, MassMoCA does even more damage to itself and to its reputation as a steward of art and as a conduit between living artists and the public."
• "My first thought while walking among the tarps is that no one working at the museum had ever seen a finished Büchel, which would be pretty astonishing, especially since a very large Büchel installation was on view in London while things were unraveling in North Adams."
• "[T]he museum has removed the bar that was part of the Büchel piece to make way for 'Made at Mass MoCA,' a self-serving, slapped-together display of photographs of previous installations. ... Beyond that and up a flight of stairs, things get stranger still. ... On [one] wall newspaper articles and editorials about the controversy are pinned to the wall, although a scathing indictment of Mass MoCA by The Boston Globe’s art critic is absent. The museum deserves to be scathed."
• "In the end it doesn’t matter how many people toil on a work of art, or how much money is spent on it. The artist’s freedom includes the right to say, 'This is not a work of art unless I say so.'"

Do Tax Breaks for Charitable Donations Make Sense?

There's an interesting debate going on in the blogosphere sparked by this New York Times article by Stephanie Strom last week questioning whether allowing tax deductions for charitable giving is good policy. Lee Rosenbaum took issue with Strom, who responded in a comment to this Chronicle of Philanthropy post. Tyler Cowen, while conceding the system is "inegalitarian" in the sense that it "'impos[es]' the desires of the rich on social priorities and wealth redistribution," lists six reasons why he's still a fan, including:

• "The arts receive about five percent of U.S. charitable donations. I am more than willing to stomach this degree of anti-egalitarianism in the non-profit subsidy, and yes we do get more beauty for it. Furthermore the alternative of more direct government arts funding would not work out well in the relatively Puritan United States, even if you think it has worked well in Europe."
• "The general proliferation of non-profit institutions makes America a much more innovative and diverse place, intellectually and otherwise."
• "Relying so much on private philanthropy chips away at the dangerous attitude that there are clearly defined social priorities to which everyone must pay the same heed."

"Instead of flatly banning the export of antiquities, why not ban their sale but allow them to be rented?"

"Undercover Economist" Tim Harford discusses an interesting proposal for eliminating the black market in stolen antiquities.

Next Up on the Deaccession Docket

While the Fisk-O'Keeffe lawsuit has come to a close, another deaccessioning lawsuit continues apace: "A group of 11 people associated with Randolph College's Maier Museum of Art filed legal action in Lynchburg Circuit Court on Tuesday to prevent the sale or sharing of the museum's artwork." The motion to intervene was filed in response to the college's request last month for a declaration that it has the authority to sell or share ownership of works purchased with funds from a trust set up under a 1928 bequest (or, if it doesn't, that the terms of the trust be modified to give it the authority). Portfolio magazine's Callen Bair sums up their claims:

"They argue that [the donor] meant for the pieces bought with money from her trust to remain at Randolph in perpetuity; that the college is considering a sale of the art 'to try to correct its poor decision making and past financial mismanagement'; and that it can solve its financial problems by better handling its resources and pursuing other fundraising options."

More on the lawsuit from Lee Rosenbaum here. Time magazine's Richard Lacayo had some thoughts recently on the Maier situation generally.

The Other Barnes Lawsuit

Montgomery County has now filed its Orphans' Court petition to block the Barnes's move to Philadelphia. The Philadelphia Bulletin has the story. It sounds like a much narrower suit than the one filed by the Friends of the Barnes group a couple of weeks ago: "The county contends that while there may have been a legitimate worry about the collection's inability to afford to stay put, circumstances have changed for the better. Thus Barnes' wish, specified in an official trust, to leave the Barnes in its current location should be honored, the petition said. 'It is axiomatic that if conditions dictate diverting from the language of a trust or the intent of the grantor when financial circumstances will no longer allow the carrying out of a charitable trust, when circumstances again change in such manner to allow the grantor's intent to be carried out, the language of the trust should be followed and the trustee has the obligation to follow a course in accord with the grantor's wishes,' the county argued."

The Fisk Decision

I've now had a chance to read Chancellor Lyle's decision rejecting the proposed Fisk-O'Keeffe settlement, which in turn led the O'Keeffe Museum to drop its lawsuit (as well as to "a little joy in Fiskville"), clearing the way, or so the consensus goes, for the university to accept an 11th hour offer that had come in from Alice Walton's Crystal Bridges Museum. The court saw the matter as turning on a single question: was the proposed settlement "in the best interest of the people of the State of Tennessee?" And it thought the answer was "no," for the simple reason that there was a better offer on the table from Crystal Bridges. The court listed "several reasons" for this conclusion:

1. The "obvious reason" that Crystal Bridges "offers more money": "$30 million is four times the $7.5 million offered by the Museum. ... While $7.5 million might tide Fisk over, $30 million would put the University on much firmer financial footing." As I've mentioned before, the museum's offer -- because it would also have allowed the university to sell a valuable Marsden Hartley painting on the open market (albeit subject to certain restrictions that would have depressed its price at least to some extent) -- would probably have yielded the university somewhere closer to $25-$30 million. So then the question becomes would you rather sell half the entire collection for $30 million or, for (roughly) the same price, sell the two best works in the collection and retain 100% ownership of the other 99 (lesser) works (plus the right to exhibit the single best painting for four months out of every four years, or just over 8% of the time). I'm not sure how you would even go about answering that question.

2. The Crystal Bridges offer gives the people of Tennessee "more access to ... the important artwork Radiator Building." That's undeniably true, but it gives them less access to all the other works in the collection (other than the Hartley). Instead of having access to those works all the time, under the Crystal Bridges offer they would have access to them 50% of the time. Again: how do you weigh those alternatives against each other?

3. The third and final reason is, in Chancellor Lyle's words, "integrity. The law respects and honors the intent of donor's [sic] who give charitable gifts." By which I suppose she means that the people of the State of Tennessee have an independent interest in seeing people's donative intent respected, separate and apart from whether or not, from a purely consequentialist perspective, honoring that intent would benefit the people of the State (as, for example, if the intent was that the works never be sold, in any form). And here the court interpreted the donor's intent to be (a) that the collection be "preserved as a whole and remain intact"; (b) that it be "titled and known as the 'Alfred Stieglitz Collection'"; (c) that it "convey [Stieglitz's] unitized view of modern art"; and (d) that Radiator Building "is essential to and the heart of" the collection. On that interpretation of O'Keeffe's intent, it's hard to argue that the Crystal Bridges offer isn't superior to the proposed settlement.

As I mentioned above, the consensus seems to be that the door is now wide open for Crystal Bridges, though the chairman of the board of the O'Keeffe Museum said this week that "it’s by no means a done deal" and Attorney General Cooper "reiterated a point he made in a letter to Walton last week: 'I would still prefer to see a local proposal that allows the Collection to remain in Nashville on a full-time basis.'" Isn't it obviously in the best interests of the people of the State of Tennessee to open it up to other bids? Maybe another museum somewhere is willing to offer more than $30 million for a 50% interest.

But what if an institution (or even an individual) in Tennessee steps forward with an offer of less than $30 million but which satisfies Cooper's wish that the collection stays in Tennessee?

Then what?

Alice Walton, call your office! (UPDATED)

Whoa. Things just took a very interesting turn in the Fisk-O'Keeffe case. The AP is reporting that the O'Keeffe Museum has dropped its lawsuit: "The New Mexico museum moved to dismiss its lawsuit one day after a judge denied a settlement agreement that would have sent a prominent O'Keeffe painting to the museum for $7.5 million. ... The dismissal opens the door to a $30 million offer from the Crystal Bridges Museum in Bentonville, Ark., to share a 50 percent stake in the collection and to display it half the time."

UPDATE: Jonathan Marx has more in The Nashville Tennessean this morning. Fisk President Hazel O'Leary says "our law firm has been in touch with the Crystal Bridges Museum, and I would expect to hear from them formally in the next day or two." More here from The New York Times, where O'Leary says "we’re about to have a little joy in Fiskville tonight."

BREAKING: Fisk-O'Keeffe Settlement Rejected

Lee Rosenbaum breaks the news that the Chancery Court has rejected the proposed settlement between Fisk University and the Georgia O'Keeffe Museum. Lee says "even though she wasn't a party to these proceedings, this sure sounds like a judgment in favor of Alice Walton."

More later.

"There's no good reason for Ott to reconsider his decision. It's time to press on" (UPDATED 2X)

The Philadelphia Inquirer had an editorial on the Barnes on Friday. In today's paper, Inga Saffron reports on some on-pressing: Tod Williams and Billie Tsien have been chosen to design the new museum. Saffron likes the choice: Williams and Tsien are a "good fit for the Barnes, which is obliged by the courts to replicate its idiosyncratic 1920s galleries that now house the collection."

UPDATE: More from Robin Pogrebin in today's New York Times: "In 2004 a judge in Montgomery County, Pa., cleared the way for the move by ruling that it was the only way to save the cash-strapped Barnes from bankruptcy. (Three Philadelphia-area foundations have pledged to finance the relocation.) But even while allowing the foundation to violate the wishes of its founder, Albert C. Barnes — who mandated that no picture could ever be moved on the walls — the judge said that a transplanted Barnes should strive to be a re-creation of the original. ... Thus Ms. Tsien and Mr. Williams must work within those parameters even as they create something new ...."

UPDATE 2: Tyler Green is not impressed with the Inquirer's editorial. In particular, he takes issue with the board's assertion that "[Judge] Ott decided that businessman Albert C. Barnes' collection could be moved in order to expose it to a wider audience." I think Tyler's right that that was by no means the rationale for the decision, but, near the end of his opinion, Judge Ott did say the following: "By many interested observers, permitting the gallery to move to Philadelphia will be viewed as an outrageous violation of the donor's trust. However, some of the archival materials introduced at the hearings led us to think otherwise. Contained therein were signals that Dr. Barnes expected the collection to have much greater public exposure after his death."

The LA Times's Christopher Knight also thinks Judge Ott should reopen the proceedings. He cites to "two disquieting facts that emerged after his 2004 ruling" which "imply" that he was "duped." The two facts, which keep coming up in this conversation and so are worth looking at a little more closely, are:

1. In 2002, "the state appropriated $100 million for downtown construction. But that huge budget allocation was never publicly announced. It remained undisclosed for four years -- until long after the judge's ruling."

2. Also in 2002, the The Pew Charitable Trusts, one of the three charitable foundations leading the charge to move the Barnes to Philadelphia, filed an IRS application to change its status from a private foundation to a public charity. According to Knight: "Pew's application held out its management of Barnes fundraising as 'a prime example of the valuable role that [Pew] will play.' But that's not the story Pew Charitable Trusts President Rebecca W. Rimel later told Ott's court, according to the [Friends of the Barnes recent] petition. By the time she took the stand to testify in the Barnes hearing, the successful change in her foundation's status had been announced. Yet the change, she said, was 'not based on anything that may or may not happen with the Barnes. . . . It has no implications whatsoever.'"

I'm not sure I see why these are supposed to be grounds for reopening (let along reversing) the earlier decision, which expressly turned on the answers to three questions:

(1) Could the Barnes raise enough money through the sale of its non-gallery assets to keep the collection in Merion and achieve fiscal stability?

(2) Can the Philadelphia facility be constructed on the $100 million budget that was being proposed?

(3) Is the Foundation's so-called three-campus model -- the new Philadelphia museum, administrative offices in Merion, and a Chester County farmhouse operating as a "living museum" -- feasible?

Looking at those three questions, and turning back to Knight's first point -- the $100 million that had been allocated for downtown construction -- doesn't that actually help support the Judge's decision? If anything, it would have given him additional comfort on the second of the three questions (is this thing really going to get built in Philadelphia?), without, so far as I can see, affecting the answers to the other two questions in any way. Similarly, the second point Knight raises seems not to have anything at all to do with the three questions the Judge was considering. Sure, Rebecca Rimel may have been less than fully candid in answering that question (and I'm not sure I see even that: wasn't she just saying that the change in status was going forward no matter what happened with the Barnes, which for all we know was entirely true?) -- but, if so, what does that testimony have to do with whether enough money could be raised through the sale of non-gallery assets to keep the collection in Merion, or whether the Philadelphia facility could be constructed on the proposed budget, or whether the three-campus model worked?

I had reservations of my own about the decision, but these particular issues have never struck me as especially serious.

Latest on the Pollock-Matter Matter (UPDATED)

I've been meaning to update on the "Pollock Matters" show, which opened at Boston College's McMullen Museum of Art last weekend. The Boston Globe's Geoff Edgers was there:

"The Matter pictures were only a part of the exhibition, which features more than 170 works over two floors. 'Pollock Matters' explores the relationship between the two couples, Herbert Matter and his artist wife, Mercedes, and Pollock and abstract painter Lee Krasner. To that end, the galleries feature photographs and paintings by the Matters, Krasner's canvases, copies of journals, letters, and a handful of undisputed Pollocks, including the MFA's 'Number 10.' Downstairs, the Matter pictures were displayed in a separate room and not credited to a particular artist. The room was a prime destination."

Globe art critic Ken Johnson reviews the show here: "If the two dozen small paintings discovered by Alex Matter five years ago in his deceased parents' storage locker are not by Jackson Pollock, then I'd like to congratulate whoever did make them. Now on view for the first time in a fascinating, much anticipated exhibition called 'Pollock Matters' at Boston College's McMullen Museum of Art, they are beautiful little pictures."

Then, on Tuesday, as if there wasn't enough controversy surrounding the exhibition, Edgers reported at his blog that, having been denied permission to reproduce any real Pollocks in the show's catalog, the museum went ahead and included certain images anyway, on fair use grounds. The school issued the following statement:

"Following the Pollock Krasner Foundation's decision to withhold permission to reproduce works of Lee Krasner and Jackson Pollock in the PollockMatters catalogue, Boston College worked closely with copyright counsel to produce a catalogue incorporating those images needed to publish our contributors' scholarship in conformity with fair use principles."

More here on this "latest wrinkle" from Cleveland Plain Dealer art critic Steven Litt.

"Fair use" cases are notoriously difficult to call, and I haven't seen exactly how the images are used in the catalog, but as a general matter this kind of scholarship/research use should at least have a fighting chance. The fact that the museum first asked for permission should not be dispositive either: recall the recent Grateful Dead decision, finding fair use in a case where the publisher's request for a license had previously been rejected.

UPDATE: Sergio Muñoz-Sarmiento thinks "Boston College seems to have a valid and solid reason for dismissing the Pollock Estate’s denial."

In the Governator's Hands Now

California's Marilyn Monroe bill has moved one step closer to becoming law:

"Distant heirs of celebrities who died before 1985 could control their publicity rights under a bill the Senate sent to celebrity Gov. Arnold Schwarzenegger Friday. The bill by Sen. Sheila Kuehl, D-Santa Monica, was in response to recent court rulings that said California's celebrity rights law doesn't apply to those who died before the law was adopted. ... The Senate agreed to Assembly amendments on a 32-0 vote."

The Fisk Hearing

Jonathan Marx reports in The Nashville Tennessean that "Davidson County Chancellor Ellen Hobbs Lyle is expected to rule in the next few days whether to approve a settlement between Fisk University and the Georgia O’Keeffe Museum." There was a hearing on the settlement today. Reports Marx:

"Speaking from the bench, Lyle noted that in a case regarding a disagreement over a charitable gift, the law doesn’t require a perfect solution, but rather a solution that comes as close as possible to honoring the wishes of the donor. ... If Lyle chooses not to approve the settlement, all parties will proceed to a Sept. 18 trial date, at which the museum will argue that it should get the entire Stieglitz Collection because Fisk has breached the conditions of O’Keeffe’s donation."

One Step Closer

From the Associated Press:

"Mayor John F. Street signed legislation that authorizes the city to enter into a long-term lease with the Barnes for a site occupied by a juvenile detention facility. That building will be torn down to make way for the Barnes' new home as soon as its population can be relocated, officials said."

Philadelphia Inquirer architecture critic Inga Saffron says this is "just the first of the Barnes' headline grabbing efforts":

"The museum, which announced a short-list of six architects this spring, and seems undeterred by the latest lawsuits aimed at stopping the move, is expected to name a designer for the project by next week. One unofficial, but informed, source predicts there is a good chance it's either going to be Rafael Moneo, author of Los Angeles' Catholic Cathedral, or Tod Williams and Billie Tsien, creators of Philadelphia's best recent building, Skirkanich Hall. The Barnes is probably the most important architectural commission of the decade, so whoever wins should be one happy designer."

Can museums compete?

Lee Rosenbaum had an op-ed in yesterday's Los Angeles Times arguing that "driven by the scarcity of great old works and an expanding class of wealthy buyers, the recent stratospheric rise of art prices has utterly outstripped most [museum] acquisitions budgets." Greg Allen and Tyler Green (1 and 2) take issue with her thesis. Lee responds here.

I'll stay out of the underlying debate, but I did want to mention two things that caught my eye in the back-and-forth. First, Lee's piece mentions the changes in the law governing fractional gifts to museums, a subject covered extensively here a year ago:

"Last year, tax deductions for 'fractional' donations were sharply restricted. Collectors used to be able to promise a work to a museum and take the tax benefit over time, sometimes over decades. Museums displayed the works occasionally, donors had them the rest of the time and the deductions appreciated as the work appreciated. The new restrictions 'effectively ended donations of fractional gifts to museums,' wrote Gail Andrews, president of the Assn. of Art Museum Directors, in a recent letter to Rep. John Lewis (D-Ga.), chairman of the House Ways and Means Oversight Subcommittee. Andrews, director of the Birmingham Museum of Art, urgently requested changes in the law and described the plight of five unidentified institutions across the country that had lost donations. Jeremy Strick, director of Los Angeles' Museum of Contemporary Art, acknowledged that MOCA was one of those institutions, and that a donor had withdrawn 40 promised works. Strick told me that about 30% of art donated to his museum had previously come as fractional gifts. The tax-law changes, he said, derailed negotiations with 'five to 10' potential donors."

Second, Greg makes an interesting point against the radical anti-deaccessionists (like Lee). Speaking of MoMA's acquisition of Pollock's iconic One: Number 31, 1950, he says:

"Ironically, even at that point, Rubin had to raise the money to buy One ... by selling two paintings by Mondrian .... I say ironic because the other of Rosenbaum's laments is that museums are 'selling to buy,' deaccessioning works in order to buy other works. Or to put it another way, had the Modern followed Rosenbaum's ideal policy in 1967, it wouldn't have made its landmark purchase of "One: Number 31, 1950" (1950) by Jackson Pollock. But hey, at least it'd have 45 Mondrians instead of the measly 43 it has now."

The Joe Thompson Rules

Sergio Muñoz-Sarmiento has some thoughts on the summary judgment briefs we filed at the end of last week in the lawsuit MASS MoCA brought against Christoph Büchel. He says "this type of gross deviance from an artist’s instructions or wishes should shock the conscience of any contemporary artist."

I’ll have more to say about the filings over the next few days, but one thing I want to call attention to at the outset. MASS MoCA’s brief includes the following section headings, among others:

• "VARA Does Not Bar Display of Unfinished Work"
• "Work by MASS MoCA Personnel to Carry Out Büchel's Plans ... Does Not Constitute 'Distortion, Mutilation, or Modification' Under VARA"

They also continue to push the completely offensive argument that the logistical support they provided somehow made them Büchel’s "co-author" on the project (see pp. 5-6 of the museum’s brief).

The point I want to emphasize for now is that, if the museum succeeds in its lawsuit, the loser will not be Christoph Büchel but all artists.

If they win the case, it will not be because of something specific to the relationship between this artist and this museum. It will be because they have convinced the Court that "VARA does not bar the display of unfinished work." Not Christoph Büchel’s unfinished work, but every artist’s unfinished work. It will be because they have established that, as long as you can claim you were "carrying out the artist’s plans" (even if, as a matter of objective fact, you carried them out incorrectly), you are immunized from VARA liability.

If MASS MOCA wins its lawsuit, artists in this country will wake up the next morning with far fewer rights than they had the day before.

I’m not sure if people appreciate that the legal case does not turn on who was at fault as between Büchel and the museum. Instead, it turns on how VARA is properly interpreted. So that it can win its case – so that it can win the right to show what it insists on calling mere "materials"–MASS MoCA is pushing for an extremely narrow reading of the statute (it doesn’t prevent the display of unfinished work, etc.). If the museum does get the right to show those mere "materials," then, it will have done so at great cost to artists’ rights generally.

So what Joe Thompson did on his summer vacation – in addition to being "sad, dumb, and shameful," in addition to wasting his premier gallery space during the museum’s peak visiting season – was to work towards a general narrowing of artists’ rights in this country.

If he succeeds, we can call the new legal principles that result "The Joe Thompson Rules."

"Unfortunately, he didn’t just keep quiet"

The chairman of the board of the O'Keeffe Museum reacts to the Tennessee Attorney General's filing in opposition to the museum's proposed settlement with Fisk University: "Normally, when two parties are in litigation and they agree to settle, that’s the end of it." More here from the Santa Fe New Mexican.

Against It

Tennessee Attorney General Robert Cooper Jr. answers Lee Rosenbaum's prayers and files a brief expressing opposition to the proposed settlement between Fisk University and the Georgia O'Keeffe Museum. It isn't clear to me whether Cooper has the power to stop the deal or not (if he does, one wonders why he would bother expressing opposition to it to the court, rather than just going ahead and stopping it on his own). The court will take up the proposal at a hearing this Thursday.

Fisk Twist (UDPATED)

The Nashville Tennessean's Jonathan Marx reports on a wild card in the Fisk-O'Keeffe saga: Alice Walton's Crystal Bridges Museum has offered to purchase a 50-percent share of the Stieglitz Collection for $30 million. Under the offer, Fisk and Crystal Bridges would jointly own the collection, which “would be kept intact and continue to be known in perpetuity as the Alfred Stieglitz Collection.” It would be available to the public half the time at Fisk and half the time at the Bentonville, Arkansas museum (which is scheduled to open in 2009).

Given that, as I understand it, the court has already ruled that Fisk cannot sell the collection, this seems like a non-starter. There's a hearing scheduled for Sept. 6 on the proposed settlement between Fisk and the O'Keeffe museum. Marx says Walton's letter to the university acknowledges that the offer only kicks in if the court does not approve the settlement.

UPDATE: The Nashville Scene's Christine Kreyling thinks the proposed settlement is "not as favorable to Fisk or to the collection as what Walton proposes":

"In [the Walton] scenario, the Stieglitz Collection remains intact and thus closer to O’Keeffe’s vision. The artist personally assembled the pieces in the collection and stipulated that they be exhibited together so that anyone who walked through the gallery door could see modern art as Stieglitz did. Whether O’Keeffe would care if the door is in Nashville or Bentonville is anybody’s guess."

"Cooper concedes it's a complex issue"

The Christian Science Monitor weighs in today on the Fisk-O'Keeffe dispute. It reports that "Tennessee Attorney General Robert Cooper Jr. is expected to file an opinion this week on the proposed sale." The story does a good job of describing the "temptation ... financially strapped small colleges [face] to liquidate treasures for short-term cash relief," but I think it buys a little too much into the notion that the proposed settlement is "not quite a sale" since the deal "would allow [Fisk] to display 'Radiator Building' for part of each year" (as noted here, it's actually four months out of every four years).

"They refuse to give up" (UPDATED)

So begins Tom Infield's story in today's Philadelphia Inquirer on the latest developments in the Barnes saga. "Almost three years after a judge issued an order permitting the Barnes Foundation to move its billion-dollar art collection to Philadelphia, a group of Barnes neighbors in Merion filed a lawsuit yesterday seeking to halt the move. The action in Montgomery County Court asks Judge Stanley Ott to dissolve the Barnes board of directors and appoint a receiver to run the foundation under his supervision." The Philadelphia Bulletin has some choice quotes from the petition.

Infield also reports that "Montgomery County commissioners have said they intend to file a suit similar to the one filed yesterday by the Friends of the Barnes." County Deputy Solicitor Carolyn Carluccio tells Lee Rosenbaum their suit will "focus on the recent 'significant changes in circumstances' that might persuade Judge Ott to reconsider" his decision. Tyler Green promises some "bombshells" later today.

UPDATE: Tyler posts the "bombshells" (in four parts; start here and work back), which are really just some highlights from the petition. I don't see anything that should give anyone much hope that the decision will be reversed, but I guess we'll soon see.

Unassisted

A pair of interesting stories from The Boston Globe's Geoff Edgers over the weekend.

On Saturday, he reported that the Massachusetts attorney general's office is looking into certain financial practices at the nonprofit Citi Performing Arts Center.

Then, on Sunday, he had an update on the "Pollock Matters" exhibition opening next week at Boston College's McMullen Museum of Art (mentioned last week here). Interestingly, Matter and "Williamstown-based forensic scientist and conservator" James Martin are still at odds over whether Martin can publish the results of a study he was hired to do two years ago (discussed earlier here). Martin is still saying "he won't release the study unless Matter and others in his camp agree not to sue him." Matter's attorney says "he offered Martin assurances that he would not be sued as part of a release, but that Martin declined to sign it"; Martin's attorney counters that the proposal "stated that if Martin were to sign, the McMullen catalog would be the 'sole and exclusive manner for publications and public disclosure' of his analysis. ... 'To say, "Yes, you can participate, but you have a sock stuck in your mouth the rest of your life," those aren't terms that are acceptable.'"

The official position of the Pollock-Krasner Foundation, which refused to permit the use Pollock images in the show's catalog, is: "we've seen no hard evidence these paintings are by Pollock."

"To be used from time to time for the Art Department of said College to form a permanent collection of art"

In a post last week about the proposed Randolph College deaccessioning, I wondered about the exact terms of the bequest at issue. Lee Rosenbaum moved the ball forward on Friday, quoting this "unambiguous" language:

"I devise and bequeath [funds from the relevant trust] to Randolph-Macon Woman's College of Lynchburg, Virginia, to be used from time to time for the Art Department of said College to form a permanent collection of art."

That does seem fairly clear. It's pretty hard to argue that the sale would not be contrary to the donor's wishes -- though, if I was forced to construct an argument, it might be that what the donor wanted was for the school to "form" a permanent collection of art, which it has now done. She didn't say it had to be a permanent collection of any particular size, and if, instead of having a collection worth $40 million (see paragraph 7 of the complaint, which you can read in its entirety here), Randolph ends up with a collection worth, say, $30 million, and has $10 million it can use to alleviate its serious financial problems (see paragraphs 9 and 10 of the complaint), it's hard to see that as the end of the world. It's also worth noting that the school is at least paying lip service to the possibility of "a partnership or joint ownership of some of the [art] with another charitable organization, such as a museum" (complaint paragraph 10).

"The notion that artists can only claim the value of their raw materials when donating work to art institutions is absurd"

Ed Winkleman on the proposed Artist-Museum Partnership Act.

Guaranteed to the Max

Lee Rosenbaum reports that Sotheby's is nearing $475 million in outstanding guarantees to consignors --- "just $25 million shy of its 'outstanding auction guarantee limit' of $500 million, which was set by its board earlier this month." In the comments to this post at Artworld Salon, Alexandra Peers says there's evidence that consignors "are asking for guarantees more often instead of simple cash advances or loans in advance of a sale. Advances and loans against property are down from a year ago." In the same comments, Greg Allen talks about "the extent to which the auction houses mitigate their exposure on guarantees by enlisting third-party investors in the guarantee process."

It's On

Lee Rosenbaum points to a report from The Chronicle of Higher Education that "Randolph College, in Lynchburg, Va., is asking a court to declare that the college has the authority to sell or share ownership of items from its art collection that were purchased with funds from a trust set up under a 1928 bequest, or to enter an order modifying the terms of the trust to allow the college to take such steps." According to the report, the bequest "stipulated that income from the trust be used to form a permanent art collection for the college. In the court documents filed [yesterday], the college states that it has purchased more than 35 works of art using those funds and that those works 'are now worth more than $40-million.'" More here from the Lynchburg News and Advance. For background, see here.

Lee says the terms of the bequest "would be circumvented through a favorable court response to the college's request" (though one suspects that, as a radical conservative when it comes to deaccessioning, she would oppose the sale no matter what), but I'm curious to see the precise terms. Does it say, for example, that works acquired with funds from the trust can never be sold? Could they be swapped for other works? Is there not still a "permanent art collection" at the school if it includes 34 works instead of 36? What, exactly, are the terms of the trust?

Latest Barnes Twist

From today's Philadelphia Inquirer:

"Montgomery County leaders have had a falling out with the lawyer they had hired to file a lawsuit aimed at keeping the Barnes Foundation art museum from moving to Philadelphia. ... [Thomas Ellis, chairman of the county commissioners,] said yesterday that [Mark] Schwartz, of Bryn Mawr, had quit after being told Monday that the county intended to let him go."

Apparently the dispute had to do with the fact that Schwartz was also representing the Friends of the Barnes.

But don't worry -- the show will go on:

"Ellis said the county intends to proceed. He said the work would be taken over by the [county] solicitor's office. He said the main grounds for the suit would be that Barnes Foundation leaders, in asking a county judge in 2004 to permit a move to Philadelphia, failed to inform him of financial aid the state might have offered to keep it in Lower Merion."

Trouble (UPDATED)

Artist Vladimir Kush -- who, according to Artnet, "sells his own Surrealist-inspired work at his own Kush Fine Art, with locations in Lahaina, Hi., Las Vegas, Nev., Laguna Beach, Ca. and New York "-- has sued pop star Pink (and her record label) for copyright infringement in the Southern District of New York. He alleges that the music video for Pink’s single "U + Ur Hand" uses imagery from his painting Countes Erotiques.

Bill Patry doesn't seem overly impressed with the claim: "In my opinion, it is extremely likely that whoever created the image of the woman that opens the video ... did so after seeing Kush's work. But Kush doesn't have a copyright in the idea of a naked woman mounting the back of a book even if he was the first to come up with it (something I have no way of knowing)."

UPDATE: Fortune's Roger Parloff says "the images do, in fact, look extremely similar to me" -- "both images show a woman dressed only in red stockings clinging to the spine of a book in such a way that when she splays her limbs the book will open" -- and gets this further comment from Professor Patry: "I don’t think even if Kush created the image for the first time that he obtains a copyright on all other depictions of a naked woman mounting the back of a book spine. I think that’s all defendants took: the ceramic figure in the music video looks exactly alike in concept but not actual features."

It's one more example of how hard it can be to distinguish "ideas" from "expression." (See here for another recent example.)

"The museum's director comes across as almost blithely discussing the idea of opening the show as it stands, without the artist's consent"

JL at Modern Kicks weighs in on the latest developments in MASS MoCA's lawsuit against my client Christoph Büchel. Sergio Muñoz-Sarmiento has more here and here, including the museum's failed attempt to keep from public view all new documents produced in the litigation: "In an era of growing demand for corporate transparency and accountability, it boggles the mind that an art institution--traditionally against censorship and creative restrictions--would try to enforce the silencing of artistic voices through force of law."

Copyright and Fashion

Lawprofs Kal Raustiala and Christopher Sprigman have an interesting piece on the New Republic website arguing against Chuck Schumer's bill to extend copyright protection to fashion designs: "There's no doubt that some apparel designers suffer because of excessive copying. But the industry as a whole is doing terrifically well--it is a $350 billion a year industry--as Schumer himself noted while promoting the bill. Upsetting the fashion industry's successful model of creativity makes little sense. It's a cure that is worse than the disease."

I posted about Raustiala and Sprigman on fashion and copyright earlier here.

"A mysterious trove of pictures rocks the art world"

There's an update in the current Newsweek on the so-called "Matter Pollocks," which I wrote about most recently here. Nothing really new to report. The works will be shown at the McMullen Museum at Boston College -- as part of a show called "Pollock Matters" -- starting Sept. 1. See press release here.

Barnes Business

My secret mission last week failed, but here's a good overview of where things stand. And more here from Bloomberg architecture critic James S. Russell:

"Moving poses its own perils. Judge Stanley Ott requires the new structure to reproduce exactly the galleries from the Cret building and Barnes's arrangement of the works. The collection can neither grow nor shrink. It's got to be the most peculiar major architectural commission in years. ...

"To make things messier, the Barnes can't be sure when it can move. The city of Philadelphia has offered a perfect 4.5- acre site along the Parisian-style Benjamin Franklin Boulevard that leads to the Philadelphia Museum of Art. The city is supposed to move an overcrowded juvenile jail now occupying the site to a new facility by next May, yet it has failed to take the necessary steps. Assume the replacement will take a minimum of four years."

Blog Break

I'm going on a secret mission to stop the Barnes from moving to Philadelphia. Regular programming will resume Aug. 20.

Meanwhile, here's the latest move from the Friends of the Barnes.

Today's Stolen Art News

The New York Times reports that "five armed and masked thieves walked into a museum in Nice, France, while it was open on Sunday afternoon" and stole four "masterworks" -- two Impressionist paintings and two works by Jan Brueghel the Elder. The Times says "the museum appears to be dogged by security problems." The same two Impressionist paintings were stolen in 1998 but recovered a few days later "on a boat in a nearby town." The museum’s then-curator was convicted in that theft and received a five-year prison sentence in 2002. One of the same two paintings was also stolen in 1978 and recovered several days later in a sewer.

On the other hand . . . French police have recovered the two Picasso paintings and a drawing that were stolen from the home of his granddaughter in February (see here). Three people are in custody.

Fisk-O'Keeffe Settlement: Take Two

Fisk University and the Georgia O'Keeffe Museum have -- for a second time -- entered into a settlement agreement to resolve their lawsuit over the intended sale of two paintings from the university's Stieglitz Collection. A previous settlement was rejected by the Tennessee Attorney General. The Nashville Tennessean has the story here. The settlement agreement is here. The parties' joint motion to the Court to approve the settlement, which contains a concise summary of the settlement terms, is here.

The basic deal is very similar to the one the AG rejected in the spring. Fisk sells O'Keeffe's Radiator Building to the museum for $7.5 million, in exchange for which the museum (a) drops its counterclaims seeking to force the university to turn over the entire collection to the museum and (b) agrees not to challenge the sale of the other important painting the university is interested in selling, Marsden Hartley's Painting No. 3. The museum also agrees to loan the O'Keeffe to the university for four months every four years.

The previous deal was for $7 million, and I also don't recall the four-month loan requirement being a part of it (though I could be wrong about that), so this is in some ways a slightly better deal for the university than the one the AG turned down. (The museum also agrees that, if it sells the painting in the next 20 years, Fisk will get half of any proceeds over $7.5 million, but, pace Tyler Green, I assume that's very unlikely to happen.) On the other hand, the sale of the Hartley now comes with some restrictions that I, again, don't recall being in the prior deal (though again I could be wrong): (i) Fisk has to use its best efforts to sell to a buyer who agrees to keep the painting in Tennessee; (ii) if it can't find such a buyer, it has to use its best efforts to extract a commitment from the buyer to "return the painting periodically to Fisk for a finite period of time during which it can be exhibited at Fisk"; and (iii) it must include, "as a condition of the purchase" (i.e., this is more than just a "best efforts" obligation), that the purchaser will commit, so long as it owns the painting, that it will "assure to the public, under reasonable regulations, access to the painting to promote the study of art." Preseumably, all of those conditions will combine to depress the sales price Fisk could otherwise expect to receive (which, at the time of the previous settlement, was estimated to be in excess of $20 million).

The settlement is expressly conditioned on approval of the Court (see paragraph 1(a)), and the parties will appear before Judge Lyle on Aug. 31. There is no similar provision regarding the Attorney General. The Tennessean article reports that he "was not part of the discussions for the latest agreement, and it remains to be seen what his response will be." (A spokeswoman is quoted as saying, "We're going to review what was filed.")

Tyler Green is befuddled. He's also skeptical of the statement by a Fisk spokesman that "if the settlement doesn't go through, it does mean Fisk could cease to exist," on the ground that it's hard to see how $7.5 million can be "the do-or-die amount"; but that overlooks the additional money the university is going to get from the sale of the Hartley. The real haul for the university from the deal is more likely in the $20-30 million range. (I'm not sure whether that's a more plausible "do-or-die amount" or not, but it's certainly moving in the right direction.) Radical conservative Lee Rosenbaum must not take the do-or-die claims very seriously either: she calls for the Attorney General "to nix this ditzy deal," which would mean, again, that the university doesn't see any of that $20-30 million and, in addition, would also risk losing the entire Stieglitz Collection in a September trial on the museum's counterclaims.

Straw Grasping

Here's the latest (probably) futile gesture to keep the Barnes from moving: "Montgomery County commissioners are demanding a reply from state Attorney General Tom Corbett to their request that the AG act on their behalf to protect the $3 billion Barnes Art Collection from a move to Philadelphia."

The previous probably futile gesture was discussed here.

The Elephant in the Park

From Sewell Chan's New York Times "City Blog":

"A sculpture depicting a tearful elephant in chains that ... became the center of a federal lawsuit in Washington was put on display in Union Square Park today, with the blessing of New York City officials. The fiberglass sculpture, 'Ella PhantzPeril,' shows a circus elephant with its front right leg in shackles. In 2002, People for the Ethical Treatment of Animals, the animal welfare group, tried to place the sculpture on view as part of the 'Party Animals' exhibition — a summer public art show depicting festive donkeys and elephants — organized by city officials in Washington. The city refused, and PETA sued the District of Columbia Commission on the Arts and Humanities in federal court. A federal judge ... sided with PETA, finding that the commission’s arguments for excluding the elephant 'strained credulity.' However, the United States Court of Appeals for the District of Columbia Circuit later reversed that decision, ruling that the 'Party Animals' exhibition consisted of 'government speech,' rather than individual artistic expression."

The sculpture will be on view through Aug. 20.

"Marine Mischief"

Or maybe the really big news of the weekend was the Brooklyn artist who steered a homemade wooden submarine toward the Queen Mary 2 in New York Harbor and ended up in police custody. Randy Kennedy had the story in The New York Times Saturday. The AP poses the question: "Duke Riley: Artist. Patriot. Moron?" More from The Gothamist, including nearly identical answers to the AP's question from the headline writers at the Daily News and the Post.

"It appears that the mayor’s office on film has come to their senses"

The big news over the weekend was that New York City withdrew the controversial proposed regulations concerning public photography, which, among other things, earned a city official a World's Worst Person designation from Keith Olbermann last week. The Mayor’s Office of Film, Theater and Broadcasting will redraft the rules in light of all the complaints and then re-release them for public comment. The New York Times story is here.

Idea vs. Expression (UPDATED)

From this morning's New York Times (third item):

"A video installation by the Singaporean artist Lynn Lu has been withdrawn from the Singapore Art Show after Ms. Lu conceded its close resemblance to the work of an American artist, Jason Mortara. ... Mr. Mortara wrote to the National Arts Council in Singapore to declare that Ms. Lu’s work ... was 'a substantively direct copy of a copyrighted piece' that he created in 2002 .... In it he used ink to write memories from his life on pieces of toilet paper before burning them over a candle. In [her work. entitled 'X'] Ms. Lu wrote the names of former friends, colleagues and lovers on toilet paper using apple juice so that the names would appear briefly when exposed to the heat of the candle. Mr. Mortara said a 'coincidence' was 'impossible,' because he and Ms. Lu knew each other and they had performed on the same night at a show in San Francisco in 2003. After questioning by Heman Chong, curator of the Singapore show, Ms. Lu said that she had been inspired by Mr. Mortara’s work and that she and he had agreed to retitle her installation 'X (After "Memories Revisited" by Jason Mortara)' and to share the small grant she had received for her work. She said: 'It had not occurred to me before this that Mr. Mortara would consider "X" a copyright infringement of his work, as artists often influence each other, but I saw it as a grave insensitivity and carelessness on my part. I apologized to Mr. Mortara for my poor judgment, and suggested crediting him' with the new title."

Ed Winkleman says Lu was "unquestionably referencing Mortara a bit too closely," but, given that "artists reference other artists all the time," isn't sure pulling the work from the exhibition was necessary. Sergio Muñoz-Sarmiento comments: "Artists: beware of your studio visits and friends!" This is actually a really good test case for the famous distinction between the expression of an idea and the idea itself. Legally, only the former is protected. That is, no one can "own" the idea of inscribing toilet paper with text and then exposing it to a burning candle. But an artist can obtain protection for a particular expression of that idea, and if someone else expresses the idea too much in the same way as the original, an infringement claim may be possible. On quick glance, it appears Lu may well have crossed that line here.

UPDATE: Ed hears from all the relevant players.

Take Two

After having their anti-graffiti legislation struck down in Federal court last year (see here and here), New York City is trying again: "Mayor Bloomberg inked legislation on Thursday that once again seeks to keep markers, spray paint, and other so-called graffiti tools out of the hands of people under the age of 21." The new law is here. More from The New York Times here.

Wrongful Termination Lawsuit

The former director of the Long Beach Museum of Art, fired in November after 17 years on the job, has filed a wrongful termination lawsuit against the museum. The suit, filed last Thursday in Los Angeles Superior Court, includes claims for age discrimination, breach of contract, wrongful termination, and defamation and seeks actual and punitive damages. Full story here.

I guess that counts as an "against it"

Keith Olbermann gave his "World's Worst Person" award last night to Julianne Cho, associate commissioner in the Mayor's Office of Film, Theatre and Broadcasting, which has proposed new rules requiring permits and liability insurance for broad categories of public photography. Earlier post here. More here from Sewell Chan of The New York Times.

Sleazebags

Ed Winkleman (who's a dealer himself) posts today on "sleazebag art dealers" and what to do about them. I'll just point out that, in New York, the relevant statute is § 12.01 of the Arts & Cultural Affairs Law, which provides that, when an artist consigns work to a dealer, the work is considered "trust property" in the hands of the dealer for the artist's benefit and, likewise, any sales proceeds are held as "trust funds" for the artist.

That's what Friends are for

Lee Rosenbaum reports that the Friends of the Barnes Foundation has established a legal defense fund for donations supporting its upcoming lawsuit seeking to prevent the museum's move to Philadelphia. Lee quotes the following review of the legal state of play from the solicitation materials:

---The Montgomery County Board of Commissioners is joining us to reopen the Barnes matter in Orphans' Court.
---Montgomery County offered the Barnes Foundation a $50-million leaseback arrangement.
---Lower Merion passed a zoning resolution that will allow up to 140,000 people a year to visit the Barnes.
---We have sponsored an evaluation of the Barnes for National Historic Landmark status, which is supported by the district's U.S. Congressman, Jim Gerlach.
---Pennsylvania State Representatives Mick Gerber, Daylin Leach, and Connie Mandarino have all declared themselves in support of the Barnes Foundation remaining in Merion.
---Our attorney, Mark Schwartz, has prepared an excellent case and we believe this time our petition will be heard fully with all the facts presented. The petition will be filed in a few days.

As Lee points out, however, the Orphans' Court has already ruled in the Barnes favor and "overturning that decision is a longshot." Or, as Harvard law professor Bruce Mann has put it, "There's no part of the judicial system that permits do-overs years after an issue has been adjudicated just because someone steps up and says, 'Hey, I have an idea.'"

The Gee's Bend Lawsuits

Shaila Dewan has a story in today's New York Times on the Gee's Bend quilt lawsuits, mentioned earlier here and here. She summarizes the lawsuits as follows: [1] "two of the quilters, Loretta Pettway and Annie Mae Young, filed lawsuits against [Bill] Arnett and his sons, saying they had been cheated out of thousands of dollars in proceeds from their work and copyrights" and [2] "a third lawsuit, brought by Lucinda Pettway, a resident of Mobile, Ala., whose forebears lived in Gee’s Bend, accused the Arnetts of refusing to return two of the community’s oldest quilts, dating to slavery times. The Arnetts have since returned the quilts, but say an appraisal showed that they were not nearly that old and were worth less than $500."

Dewan's bottom line take:

"The story line — poor, uneducated black women swindled by 'scheming Atlanta businessmen,' as one newspaper article called the Arnetts — was juicy enough to be front-page news in the South. The reality, though, is more nuanced. The vast majority of the quilters remain satisfied with the Arnetts (there were works by 22 living quilters, including Ms. Pettway and Ms. Young, in the most recent museum exhibit)."

The PropertyProf is interested in the way the quilters' overall business is organized:

"The quilters’ collective, an informal group of about 40 members, pays $150 a month to rent a former day care center marked by a small, hand-painted sign, where one room is stacked floor to ceiling with quilts. Small quilts go for $200 to $1,000, while bed-sized ones are priced at $950 to $7,500. When a sale is made, half the money goes to the quilter and half to the collective, which periodically disburses dividends to all members. Royalties from reproductions of the quilts go into the foundation, which now contains $147,000. The system was designed to forestall jealousy, protect elderly quilters who can no longer sew, and acknowledge the interdependent nature of the community, where many quilters are related and styles were handed down from mother to daughter."

Update on Proposed NYC Photography Rules

The New York Times reported yesterday on the campaign against the recently proposed City rules (mentioned earlier here and here) that would require anyone wanting to photograph or film in public places to get a permit and a million dollars of insurance. The campaign is being led by a "newly formed advocacy group" called Picture New York; their website is here.

The public comment period ends next Friday. The New York Civil Liberties Union says "the rules they are proposing are unconstitutional" and "we will sue if they adopt them."

"A wonderful yarn of fiction" (UPDATED)

Sergio Munoz Sarmiento on MASS MoCA's reply to Büchel’s counterclaims.

UPDATE: More from Sergio here: "the first fact that must be understood is that there was no written agreement between the museum and Büchel, which clearly indicates the availability of a legal structure in which this fiasco could have been avoided. Simply put, what MASS MoCA and Mr. Thompson should have done to protect their monetary investment is what any first year law student learns during the first week of law school. That is, draft an agreement. This is especially true when one of the parties (in this case the museum) is in a higher position of power and in a position to know better."

Going Hollywood

The story of John Myatt -- "the man believed to be the world's most-prolific art forger" -- is coming soon to a theater near you. Clive Owen will play Myatt; George Clooney will play his accomplice, John Drewe. "Myatt and Drewe were convicted of fraud in 1998 and sent to prison. Myatt, who promptly admitted his guilt and repented, served only four months in jail and has become a celebrated figure in the art world. Drewe still professes his innocence, after serving a six-year sentence." Full story here.

ICA Lawsuit

Geoff Edgers reports in The Boston Globe that "the construction company initially charged with building the Institute of Contemporary Art ... has sued the museum for $6.6 million after being bounced off the project months before it was due to open."

"The image of a celebrity is not something the public can use generally"

So says California State Sen. Sheila Kuehl, who's leading the charge to broaden the state's postmortem right of publicity statute to apply to those who died before 1985 (when the current statute was adopted). The Senate Judiciary Committee voted 10-0 last month to recommend Kuehl's bill to the full Senate. Full story in today's Los Angeles Times here. Kuehl is a former TV star herself.

Kissing Bandit

From The New York Times this morning:

"... Sam Rindy, 30, a Cambodian-born French artist, will have to appear in court to face charges of criminal damage, Agence France-Presse reported. Ms. Rindy left the imprint of her lipstick on the otherwise immaculate white canvas that is an untitled work by the American artist Cy Twombly at 'Blooming,' an exhibition of his works ... at the Collection Lambert in Avignon, France. Ms. Rindy said she was so overcome by the 9-by-6-foot work that she had to kiss it."

Archives for Sale

Robin Pogrebin has a story in tomorrow's New York Times about "a small but influential number of celebrity architects who are considering selling their archives — which can include tens of thousands of objects, from multiple large-scale models and reams of drawings to correspondence and other records — even as they continue to practice." Frank Gehry is apparently looking for a sale in the "multimillion dollar" range; Peter Eisenman has already sold his "for an undisclosed amount" to the Canadian Center for Architecture in Montreal and is currently "negotiating with the Beinecke Library at Yale University over some of his collected books and magazines." In 2005 the Getty acquired the archive of Modernist architect Pierre Koenig -- consisting of more than 3,000 objects, including drawings, models, photographs, slides, and documents -- from his widow, also "for an undisclosed amount."

The story points out that archives are donated more often than sold, "because the institutions that covet them do not have large acquisition budgets and the priority for donors is usually simply to see that their material finds a suitable home." Robert A.M. Stern has donated his archives to Yale, as have Kevin Roche and Cesar Pelli.

Latest Last Gasp

Saturday's New York Times had a report on the "latest attempt" to keep the Barnes Foundation from moving:

"[Lower Merion] has passed a zoning ordinance that would more than double the visitors allowed each year .... The Lower Merion Township Board of Commissioners passed the zoning change on Wednesday, but the Barnes’s executive director, Derek Gillman, said that the new rules, while helpful, were not enough to keep the collection from moving. 'It will not come close to providing the additional revenue sources that are essential to the financial health of this and all not-for-profit educational institutions,' Mr. Gillman said in a statement."

The Times also reminds us of the previous latest attempt:

"Last month, Montgomery County proposed buying the foundation’s buildings and land for $50 million or more, using money that would be raised through bonds, but the Barnes rejected the offer."

I'll let you know then the next latest attempt gets rejected.

Relatedly, Randy Kennedy had a nice profile in today's Times of "one of the last living links to the eccentric origins of the Barnes," 90-year old painter Harry Sefarbi, who's been there for 54 years. Sefarbi testified in court against the move, "arguing that it would be a 'complete betrayal' of the institution and of Barnes."

Berry-Hill Update

It's been about a year since we had any news about the Berry-Hill Galleries bankruptcy proceeding. Carol Vogel's Inside Art column Friday had an update. For one thing, the gallery building is still on the market, now priced at $28 million. She also reports that "all but a handful of unresolved claims have been paid" and "the rest are expected to be paid by the end of the summer." The gallery says it does not plan to close up shop: "We have a lot of interesting plans."

Update on the California Marilyn Monroe Bill

Photo District News has an update on the status of the California post-mortem publicity rights bill:

"The ... bill has not passed and almost certainly won't in the near future. The California legislature is scrambling to hammer out a budget with just two days left in the legislative session, which typically gets extended only for the purpose of passing a budget. A source in the office of California Sen. Sheila Kuehl, the lawmaker who introduced the bill, confirmed that the Senate was unlikely to vote on this bill before a budget is passed, and that the legislature will likely adjourn when that happens. The bill would need to pass both legislative houses and be signed by Gov. Arnold Schwarzenegger before becoming law."

The War on Graffiti

USA Today has an update on the criminal case against Alain Mariduena (AKA KET), mentioned earlier here, and says:

"The case is part of a new war on American graffiti, that long-controversial hybrid of art and vandalism. But fans and critics agree on this much: Never has so much been done to fight graffiti, and never has there been so much of it."

Comment Period Extended

The New York Times reports that New York City has extended the comment period on proposed photography rules (mentioned earlier here) that would require a permit and proof of $1 million in insurance for any group of (a) two or more people filming in one location for 30 minutes or (b) five or more people using a tripod camera for more than 10 minutes. The original deadline was June 27, but it's been extended to Aug. 3.

Glenn Reynolds and Ann Althouse got their comments in on time.

Scene From a Mall

The Seattle Times reports on a theft of two Picasso etchings from a gallery in the Bellevue Square shopping mall last week:

"The ... art heist took just minutes. The woman distracted the salesperson with a question on the merits of a piece conveniently located at the far end of the gallery. The two men, meanwhile, lifted the Picasso etchings from the wall and strolled out into the airy mall. One of the men reportedly was on his cellphone the entire time. The gallery employee didn't immediately notice the theft. By the time the police were notified, the trio had long since blended into the sea of shoppers ..."

Derek Fincham comments:

"The most likely scenario is that a subsequent purchaser who didn't know about the works' tainted past will end up in a dispute with the gallery or the insurance company if the gallery was able to insure the works. The Seattle piece says 'unscrupulous art collectors have few qualms about purchasing stolen pieces for their private collections.' I think that may be over-stating the case a bit. In most situations the ultimate litigant is a buyer who was unaware a work had been stolen. This is why buyers should always consult organizations like the Art Loss Register before every significant purchase, and provenance should be thoroughly researched."

Update on the Artist Deduction Bill

Americans for the Arts has an update on the status of the Artist-Museum Partnership Act, discusssed earlier here:

"The Artist-Museum Partnership Act (commonly known as the 'Artist Deduction bill') has been gaining co-sponsors since it was re-introduced earlier this year. The House bill H.R. 1524 introduced by Reps. John Lewis (D-GA) and Jim Ramstad (R-MN) now has 50 co-sponsors. Additionally, the Senate bill S. 548 introduced by Sens. Patrick Leahy (D-VT) and Robert Bennett (R-UT) has 23 co-sponsors. The legislation supports individual artists by allowing them to take a fair-market value tax deduction for tangible works they donate to nonprofit collecting and educational organizations, and it benefits the public by giving them access to more art. Many of the cosponsors are legislators who sit on the tax-writing committees, which would demonstrate a real interest in approving this legislation."

Cellphones and stolen art (UPDATED)

David Nishimura notes this Discovery News story on the development of cellphone technology that could help identify stolen art (mentioned earlier here):

"A cell phone picture could be worth a million dollars — particularly if it's a snapshot of a piece of stolen art.

"A new software tool plays detective by automatically comparing cell phone photos with images in a database of stolen art. The technology could help restore stolen goods to their rightful owners and solve the hundreds of art theft cases opened each year in the United States alone.

...

"For now, the system works on paintings, carpets and coins, but the researchers already have plans to go beyond those.

"'Extensions are on the way to make the system suitable for thee-dimensional objects. These extensions will cover sculptures as well as three-dimensional objects in general,' said Bertram Nickolay, head of the department Security Technology at the Fraunhofer Institute in Berlin, Germany."

Nishimura's take:

"Sounds like a pretty simple and practicable idea, patching together well-established technologies. Take a database of images of stolen artworks, and search it using other images and a pattern-matching application. You'll end up with some false positives, of course, but as long as the matching algorithm is reasonably sophisticated, you should still have a useful tool for flagging possible problem paintings for further investigation."

UPDATE: Derek Fincham also likes the idea, but says "the problem of course is which database to check. At present there are a number of different theft databases. The largest and most successful is the Art Loss Register. However that site is not accessible to the public at large. You have to pay for and request the ALR to conduct its own search of its data. ... [A]s I've argued before, the first company which figures out how to make a simple, universal and easy-to-use database will really stand out, and will also really help to legitimize the art and antiquities trade generally. Until such a database exists though, we will continue to see good faith purchasers buying stolen or illicitly excavated works leading to the classic art law dispute between an original owner and a good faith purchaser."

Fisk Trial Delayed

The Fisk-O'Keeffe trial, which was supposed to begin next week, has been postponed until Sept. 18. Jonathan Marx summarizes the current state of play in The Nashville Tennessean:

"[The Court] has already ruled that Fisk cannot sell Georgia O'Keeffe's Radiator Building — Night, New York or Marsden Hartley's Painting No. 3, both of which were donated to the school by painter O'Keeffe in 1949 as part of the Stieglitz Collection. ...

"The trial will address the claim of the O'Keeffe Museum ... that Fisk University has violated the conditions of O'Keeffe's gift to the school — and therefore the entire Stieglitz Collection should go back to the museum.

"'As a matter of general law, when a gift with conditions is breached, one of the remedies is that the gift gets returned to the giver,' said Saul Cohen, president of the board of the O'Keeffe Museum. 'That's a standard remedy: reversion. Another possibility is damages.'"

My most recent post on this matter is here.

Hedge Funds Expanding Into Art

The New York Times had a story yesterday on how hedge funds are expanding into investments beyond stocks and bonds ... including art. As I've discussed in previous posts (e.g., here), the jury is still out on art investment funds, but the article suggests that investors might be willing to absorb some extra risk "in exchange for some fun and a lively dinner party conversation. In June, Mr. Hoffman [of London's Fine Art Fund] invited investors in one of his art funds to Geneva to admire and discuss some Picasso and Ed Ruscha paintings over lunch. ... [I]nvestors in WMG’s photography fund will get the first right to buy any prints in the fund." One investment manager is quoted as saying, "It’s really as much a lifestyle thing as an investment."

The Red Elvis Case

Still catching up on things that happened when I was away, I should note that the Connecticut Supreme Court upheld a lower court ruling that Peter Brant is the rightful owner of Warhol's "Red Elvis," which he paid $2.9 million for in 2000 but, according to this New York Daily News story, is now worth "as much as $25 million."

The work was owned by Kerstin Lindholm, who bought it in 1987 for $300,000 from a Swedish dealer named Anders Malmberg, with whom she'd had a longstanding business relationship. In 2000, claiming to have bought the work from Lindholm, Malmberg sold it to Brant. In 2001, Lindholm learned of the unauthorized sale and demanded that Brant return the work to her. He refused, and the lawsuit ensued.

In response to the decision, a friend emailed: "Can you explain why we're not seeing the obvious ruling, i.e. Brant is required to give this painting back to Lindholm and Malmberg is required to give Brant his money back? This case has never made sense to me."

Well, for one thing, according to the Daily News, "no one can find where [Malmberg] hid or spent the nearly $3 million." If that's true, requiring Brant to give the painting back to Lindholm would mean that he's out $3 million.

Leaving that aside, the explanation for the result lies in the concept of entrustment. The basic rule is of course that you can't get good title from a thief. Malmberg was in essence a thief here (the decision mentions in a footnote that "in March 2003, the Swedish court convicted Malmberg of gross fraud embezzlement," and the Daily News story says he "went to jail"), so it's tempting to wonder how Brant could have acquired good title from him. The answer is that when one party entrusts goods to another party (as Lindholm did to Malmberg here), the entrustee can (under certain circumstances) transfer good title, regardless of any conditions expressed between the parties and even if the entrustee's actions are criminal.

What are the circumstances under which good title can be conveyed? First, that the entrustee is a "merchant" who deals in goods of the relevant kind (which Malmberg clearly was here). And second, that the sale is to a "buyer in the ordinary course of business" -- i.e., someone who buys "in good faith" and without knowledge that the sale violates anyone's rights (which Brant was found to be here; the basic idea was that, under the circumstances, it was reasonable for Brant to believe that Malmberg really was the owner of the work).

The basic rationale for this rule is that where the entruster and the buyer are both "innocent," the loss should fall on the former, since she's in a better position to avoid the loss (by not putting the work in the hands of the dishonest middleman).

An AP story on the decision is here. The U.C.C. entrustment provision, § 2-403(2), is here. The Connecticut Supreme Court decision is here.

Rarefied AIR

This week's New York magazine has a piece suggesting that New York City "appears to be" stepping up enforcement of Soho's artist-in-residence laws:

"In 1977, Soho, and Noho, were zoned for 'joint living-working' spaces, meaning properties there are for so-called artists-in-residence (AIR) only. ... It’s a little-known fact that to live in a loft in most Soho buildings, at least one loft resident has to be certified by the city as an artist. In typical New York fashion, the vetting process is byzantine, requiring individuals to be engaged in the 'fine arts'; to demonstrate a 'serious, consistent commitment' to their art; and need a large space."

According to the article, "brokers say that until recently, there was no real reason to worry," but "as more co-ops bring their properties up to code or convert to condominiums, enforcement appears to be stepping up" and "apparently, there are more than a few co-ops under Department of Buildings scrutiny for AIR-related violations." (A DOB spokesperson says, “The law has not changed, nor has our enforcement of the law. We continue to enforce the AIR regulations as we always have.")

No do-overs

This AP story on Montgomery County's last-ditch effort to keep the Barnes from moving to Philadelphia includes the following from Harvard lawprof Bruce Mann:

"The commissioners don't have standing to sue, and too much time has elapsed, he said. 'There's no part of the judicial system that permits do-overs years after an issue has been adjudicated just because someone steps up and says, "Hey, I have an idea,"' said Mann, who has followed the Barnes case. 'The fact the county is weighing in so long after the fact is just bizarre.'"

Tom Infield has much more in today's Philadelphia Inquirer (including a fresh quote from Mann, who now hedges his bets, if ever so slightly: ""I would think it is low probability, but it has been such a crazy case for years that it can't be ruled out").

Both stories also mention the latest plan by Congressman Jim Gerlach to block the move: "Meanwhile, Rep. Jim Gerlach, R-Pa., said Monday he has asked the Interior Department whether it is possible to designate the Barnes Foundation's Lower Merion campus a national historical landmark, even without the consent of the board. Such a designation would block the foundation from moving, he said." This is Gerlach's Plan B; Plan A was discussed here.

"City May Seek Permit and Insurance for Many Kinds of Public Photography"

Another story from over the break: New York City is considering new rules that "would require any group of two or more people who want to use a camera in a single public location for more than a half hour to get a city permit and [$1 million in] insurance. The same requirements would apply to any group of five or more people who plan to use a tripod in a public location for more than 10 minutes, including the time it takes to set up the equipment."

Glenn Reynolds pronounces it the "dumb idea of the week." Ann Althouse says it's "idiotic."

Gee's Bend News

The latest news in the Gee's Bend lawsuits is that the federal court judge in the third of the three lawsuits is trying to determine the value of the two quilts at issue (which were recently returned to the plaintiff) in order to figure out whether the $75,000 threshold for diversity jurisdiction has been met.

You say "ransom," I say "a more comfortable distribution of resources"

Carol Vogel's latest Inside Art column reported that the Metropolitan Museum was the buyer -- for $3.18 million, or more than 12 times Sotheby's high estimate -- of one of the antiquities recently deaccessioned by the Albright-Knox.

Lee Rosenbaum finds it "distressing that such a heavy ransom must be exacted from a public institution to rescue what should never have left the public domain in the first place." But why not, instead, see it as the kind of mutually advantageous trade between public institutions that we ought to encourage more of (Fisk-O'Keeffe is another example that comes immediately to mind)? As Adrian Ellis put it in a piece on deaccessioning a couple years ago:

"One approach that respects the intentions underpinning the current position on de-accessioning whilst allowing for a more balanced allocation of resources might be for the museum community to see itself more as just that – a community – and allow for a more comfortable distribution of resources between cash poor asset rich institutions and asset poor cash rich ones, allowing them to trade to mutual advantage."

The piece went on view in the Met’s Ancient Near-Eastern galleries on Friday.

Marilyn Monroe News

In other news from while I was away, the proposed N.Y. legislation to grant post-mortem rights of publicity did not make it through before the summer recess. See here. I suspect we haven't heard the last of it, however.

A similar bill is currently making its way through the California legislature.

More Machu Picchu

Before the break, I mentioned Arthur Lubow's fascinating New York Times Magazine article on the battle between Peru and Yale over certain Machu Picchu artifacts. JL at Modern Kicks wonders what legal arguments "Yale might employ in the face of what seem like compelling Peruvian arguments." Since, as Lubow points out, "if the case winds up in the United States courts, its disposition may be determined by narrowly legalistic interpretations of specific Peruvian laws and proclamations," I'm afraid I can't be of much help there, but I can point you to Derek Fincham, who's the go-to guy on all cultural property matters. He finds the following recent offer by Yale to settle the dispute "a fair compromise which would be a win for both sides":

"Yale offered to send back 'the museum-quality (that is, whole) objects excavated by Bingham at Machu Picchu' for display in a 'state-of-the-art museum exclusively dedicated to Machu Picchu' that would be opened in Cuzco in collaboration with Yale on the centennial anniversary of Bingham's 1911 discovery of the site. To help raise money for the museum, Yale would resurrect its touring exhibition, which ... would end up permanently in Cuzco. This represents a significant concession over Yale's past proposal to divide possession of the approximately 300 display-worthy objects. The research collection, however, would continue to reside in New Haven. ... In other words, Peru's pride will be assuaged if Yale's research needs can be met. Whether Peru will consent to those terms - indeed, whether the ... government is at liberty to do so, legally or politically - is uncertain."

"What the Massachusetts Museum of Contemporary Art has done in response to the Christoph Büchel mess is sad, dumb, and shameful" (UPDATED)

That's the lede from Boston Globe art critic Ken Johnson's piece in today's paper.

It closes:

"Obviously, Mass MoCA's faith in the artist and his process was sorely tested. But does that warrant exacting revenge by turning his project into a show that misrepresents, dishonors, vilifies, and even ridicules him? A show that admits no responsibility for the project's failure on the museum's part and that affirms popular perceptions of our most innovative contemporary artists as frauds and charlatans?

"I don't think so."

UPDATE: Time magazine's Richard Lacayo agrees: "The museum's decision to (sort of) exhibit Buchel's installation in half finished form has always struck me as not so much a reasonable curatorial judgment call as an institutional temper tantrum ...."