Arbus auction off

Newsday reports: "[Phillips] auction house has canceled a New York sale of Diane Arbus photographs amid a lawsuit accusing their owner of taking advantage of the man who sold them to him."

Previous post on the lawsuit here.

"Simply to give with no tax benefit to himself is a remarkable gesture"

The U.K. Times has a story on David Hockney's donation of a major painting to the Tate (reportedly -- at 40' x 15' -- the largest ever given to the museum). He calls on more artists to follow suit: "More artists should donate. They should think about it. You can’t quite trust collectors who say they’ll give to the Tate and often don’t."

I can think of one thing that would help the cause here in the U.S.

"As a lot of people figure out, it's really complicated to run an art museum"

A couple of interesting articles toward the end of last week on the rise of private museums: Lauren Schuker in the Wall Street Journal ("The Firestorm Over Private Museums") and Kate Taylor in the New York Sun ("At Odds Over Art"). Eli Broad's recent announcement that he would not be leaving his art collection to LACMA seems to have prompted a lot of thinking by collectors about how best to dispose of their art collections.

Reversal

A London appellate court has reversed a decision awarding co-authorship rights to a former member of the 60's rock band Procol Harum over the song "A Whiter Shade of Pale," discussed earlier here. Apparently he waited too long to assert the claim.

"What experts described as the largest private sale of art ever"

In Friday's New York Times, Carol Vogel reported that "the heirs of the legendary dealer Ileana Sonnabend have parted with some $600 million worth of paintings and sculptures in two transactions to cover their estate taxes."

More from Kate Taylor in the New York Sun.

Vogel's story included this interesting tidbit:

"Perhaps the most famous painting she owned — Mr. Rauschenberg’s 1959 'Canyon' — will never leave the collection .... In its center is a stuffed bald eagle that cannot be sold because of a federal prohibition on trafficking in endangered species."

Boetti Bout

Josh Baer:

"In what is turning into a very nasty case there have been lawsuits filed between Sperone Westwater and the Archivio Alighiero Boetti (and some family members) over the authenticity of works exhibited and sold by the gallery in 2002. After being sued in Italy the gallery filed a detailed suit in NYC outlining allegations of reneged authentications over Boetti artworks shown and sold in the US."

Fisk to Appeal (UPDATED)

The AP is reporting that Fisk is going to appeal Judge Lyle's recent ruling in the O'Keeffe case. "The school said in a news release Thursday the order threatens the safekeeping of the collection."

Lee Rosenbaum was tipped off about this several weeks ago.

UPDATE: More from Richard Lacayo.

Intrepid Lawsuit

The AP reports that the Intrepid Museum is facing a lawsuit claiming that it lost several World War II-era photographs that had been loaned to it. The plaintiff says the photos were worth about $175,000.

For its part, the museum is playing the Guilt Card: its president is quoted as saying, "We are surprised and disappointed to hear of the filing of this lawsuit have referred this matter to our insurance representatives." He added that the museum had "limited resources" and "this unfortunate action detracts from our carrying out [our] critically important national mission."

In the long run . . .

At Andrew Sullivan's blog, an interesting take on the recent New York magazine article on Larry Salander, which made the case that his fall was caused by his (overly) ambitious project to create a new market for old master work:

"I don't have a lot of sympathy for those who bemoan contemporary art and seek a return to the old-masters. Appreciating formalism is one thing; crusading against contemporary art in order to correct an alleged cultural imbalance is something else entirely. When you buy a piece of art from a living artist you are funding her next project; you are allowing her to continue with her work. What does it matter to Rembrandt how much his painting sells for?"

"Recognizing a descendible postmortem property right has federal estate tax consequences that state legislators appear not to have considered"

In the Yale Law Journal "Pocket Part," Mitchell Gans, Bridget Crawford, and Jonathan Blattmachr look at the estate tax implications of the recently enacted California publicity rights legislation:

"Legislators, proponents of these laws, and legal commentators have overlooked two significant federal estate tax consequences of these new state law property rights. First, a descendible right of publicity likely will be included in a decedent’s gross estate for federal estate tax purposes. Second, the estate tax value of rights of publicity easily could exceed the estate’s liquid assets available to pay taxes. These tax concerns could be eliminated, however, by rewriting the statutes to limit a decedent’s ability to control the disposition of any postmortem rights of publicity."

Similar legislation is still pending in New York.

"Without freedom, no art"

From today's New York Law Journal ($): "An unlicensed street vendor, who sold tiles decorated with photographic reproductions, was entitled to First Amendment protection, a Manhattan [criminal court] judge has ruled. The court held that the peddler's 'creations' amounted to 'artwork' within the meaning of a 1997 injunction, in which New York City agreed to permanently refrain from enforcing licensing requirements against vendors who sold 'paintings, photographs, prints and/or sculpture.'"

The decision is here. The 1997 case is here.

Marilyn Monroe News

The Wall Street Journal Law Blog has the latest in the Marilyn Monroe right of publicity saga: "District Judge Margaret Morrow in Los Angeles sided with the families of photographers, ruling that Monroe was a New Yorker, meaning she has no right of publicity (whereas in California, right of publicity survives a celebrity’s death)."

Background here, here, and here.

"Seems like it might be more efficient to set prices through a virtual prediction-type market for works displayed on the web"

Lawprof Larry Ribstein spends some time in Chelsea, then posts on "the art world's approach to retail."

"I'm an artist and do not enjoy the litigation process, but if someone is wrongfully taking from my creations, I must defend my art."

The New York Post reports that pop star Pink has settled the copyright infringement lawsuit brought against her by artist Vladimir Kush, discussed last summer here.

Esmerian Sale

ARTINFO.com reports: "The folk art collector Ralph Esmerian will not donate his version of Edward Hicks’s painting The Peaceable Kingdom with the Leopard of Serenity (1848) to the American Folk Art Museum as intended, but will instead sell it at Sotheby’s in a May sale of American paintings, Bloomberg reports. The painting has been on loan to the museum since 2000. Recent reports have claimed that Esmerian, a jewelry dealer, is going through financial difficulties. A lawsuit filed in New York Supreme Court states that he owes Merrill Lynch Mortgage Capital about $185.3 million."

Esmerian tells Bloomberg he got caught up in the sub-prime crisis: "Suddenly in the last year, we've had pressures from the marketplace to clear up a few debts.''

For background, see here.

"The issue is fantastic"

Lawyer Brad Parker on the Rauschenberg-trash lawsuit:

"I'd love to try this case - the issue is fantastic. If Rauschenberg throws away his work product, does the law of abandoned property apply? Does the artist retain the right to declare what work is authentic? Does the artist still own his artistic materials - even if he discards them as unusable or undesirable? And how do those questions apply to long deceased artists? For example, can an auction house sell a Rodin sketch as an authentic Rodin if it was merely discarded work product that he used to create a completed piece of art?"

Pixxxellated

Rebecca Tushnet writes about artist Adam Connelly, who, as she puts it, "paints pictures of pornographic images, pixellated so that it's our minds, not the paint, providing the salacious details." Does he have a good fair use defense to his use of the underlying images? "It's pretty clear that he would, given the change in meaning and the change in quality of reproduction."

"He could be upwards of $100 million in debt"

Another lengthy story on the collapse of Salander-O’Reilly Galleries, this time from New York magazine. (Here is another recent one, from Portfolio magazine.)

Gardner Heist Central

The Boston Herald has launched a special website dedicated to the Gardner Museum heist.

"The case is groundbreaking because there is no real precedent on these facts under the Visual Artists Rights Act"

The Southwest Florida News-Press has more on the Florida lawsuit involving work taken from Robert Rauschenberg's trash and then sold (mentioned earlier here and here).

Barnes Argument

There was a hearing yesterday in the petitions to reopen the Barnes Foundation case. Randy Kennedy had a brief report in today's New York Times. The Philadelphia Inquirer is here. The AP is here.

According to the Inquirer, "Ott asked no questions during oral arguments yesterday, saying only that a decision would be issued 'as expeditiously' as possible."

Lee Rosenbaum "very reluctantly find[s] the foundation's 'too little, too late' argument against reopening the case to be legally (but not ethically) persuasive." Tyler Green sees "cause for mild optimism." I had some thoughts on the Friends of the Barnes's recent papers here.

"Proceed with caution and seek guidance"

Some art-buying advice from U.S. Attorney Patrick Fitzgerald (yes, that Patrick Fitzgerald), who this week announced a number of indictments for "two art-fraud schemes that reaped a combined $5 million." Bloomberg has the story here. Fitzgerald says "literally thousands of people in different countries and on different continents may come to learn that when they thought they bought an original work signed by Picasso or Dalí or Chagall, they in fact bought a fake." Some of the prints at issue were sold on eBay, and others were sold through two art dealers in Northbrook, Illinois.

More on Photographs as Derivative Works

I've mentioned a recent District Court decision that had copyright lawyers scratching their heads: the case had held that photographs of artworks are derivative works of those artworks. Now Bill Patry notes another District Court decision that comes out the other way. As he summarizes it, "a photographer took pictures of a motorcycle on which there was art work and then sued for infringement of them. Among the various defenses asserted by defendant was one that plaintiff’s photograph was an unauthorized derivative work of the artwork on the motorcycle and as such not protectible." The court rejected the argument, noting that the photographer had not "recast, transformed, or adapted" the underlying work.

Patry's reaction: "Praise the Lord."

$131 million

Carol Vogel reports that it is a condition of Leonard Lauder's $131 million gift to the Whitney that "the museum not ... sell its Marcel Breuer building on Madison Avenue at 75th Street for an extended period, although he declined to specify how long."

Greg Allen asks: "Is a deal not to sell the building 'for an extended period' substantively different from a plan to sell the building after 'an extended period'?"

Barnes Update

The Philadelphia Inquirer's City Hall blog reports that "Philadelphia's lease with the Barnes Foundation calls for the transfer by May of the site currently occupied by the city's juvenile detention facility ... on the Ben Franklin Parkway. But city officials said Monday that the property won't be vacated until late summer." A spokesman for the mayor says "the delay is not likely to inspire the Barnes Foundation to break its 99-year lease -- which it would have the option of doing -- because the new $100 million museum is still in the design phase and not ready for construction."

Dr. No Strikes Again

From the New York Times: "Some 30 paintings by such masters as Monet, Cézanne and Corot and a Rodin sculpture were stolen from the home of an antiques dealer near Paris, police officials said. Five masked gunmen broke into the home in Le Pecq, west of Paris, in the early hours, subdued the dealer and fled with the art, the officials said. A judicial source said that if the artworks’ authenticity was confirmed, their value would be priceless." (I don't see why the value would be "priceless," but I suppose I get the point.)

"If the allegations are true, the collapse of Salander-O’Reilly would be among the most massive art frauds in history"

In the April issue of Portfolio magazine, Suzanna Andrews has a lengthy piece on the unraveling of Salander-O'Reilly gallery.

Kristen (UPDATED)

An interesting intellectual property angle has emerged in connection with the Governor Spitzer story -- the use by news organizations of photos of Ashley Dupre (aka"Kristen") without permission. See story here. As an initial matter, Rebecca Tushnet points out that, since presumably she didn't take the pictures of herself, Dupre may not own the copyright in them, unless "by transfer" from whoever did take them. Putting aside the ownership issues, Bill Patry believes the use of the photos "has an obvious claim to fair use" under Nuñez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000). Tushnet, however, thinks the news organizations here "might have a harder fair use case than in Nuñez": "In Núñez, whether the subject of the photos ought to have posed for them was the focus of the news story; Dupre's photos are not the newsworthy event themselves, but rather are used to show people what Spitzer was buying." Nonetheless, she agrees "their relation to newsworthy events, and the generally limited market for MySpace photos, might well justify a fair use finding."

Tushnet also adds that "Dupre's potential publicity rights, which [her] lawyer's quotes seem to focus on, are stronger in some ways, but much weaker in others. Specifically, news reporting use of her identity will not violate her publicity rights no matter how much her cleavage is used to sell papers."

More here from Photo District News Online.

UPDATE: Sergio Muñoz Sarmiento agrees the fair use case is strong, but, just in case he runs into any trouble for publishing one of the photos, has identified just the right counsel to represent him.

And Kunal Bhatheja has more on the publicity rights angle: "As long as a picture is in the context of something 'newsworthy' it withstands a claim under [the New York publicity rights statute] – even if it is placed or used in a manner designed to sell the publication."

18 years, 18 years

Derek Fincham notes that today is the 18th anniversary of the Gardner Museum heist. (Geoff Edgers mentioned it last week as well.)

Remington Update

The company "accused of usurping the name of the Frederic Remington Art Museum's Foundation" has failed to respond to the museum's District Court complaint (mentioned here), and next faces a default motion. Story here.

More on the Rauschenberg Suit

The Legal Satyricon has some thoughts (including a link to the complaint) on Robert Rauschenberg's suit (mentioned earlier here) over work someone pulled out of his trash.

Strindberg Recovered

A painting by playwright August Strindberg, stolen two years ago from the Strindberg Museum, has been recovered by Swedish police during a drug raid in a Stockholm suburb.

"If you are scratching your head and wondering what went wrong, you are not alone"

At the Stock Asylum, Nancy Wolff writes about a strange copyright decision in federal district court in Illinois.

"It is time to extinguish the ignus fatuus held out by Blanch [v. Koons]. Common-law punitive damages cannot be recovered under the Copyright Act"

Viacom Int’l Inc. v. YouTube, Inc., SDNY (Mar. 7, 2008).

Interest-ing (UPDATED)

Lee Rosenbaum seems mildly surprised that the Georgia O'Keeffe Museum has announced that it will not be appealing Judge Lyle's decision last week which left, at least for the time being, the Stieglitz Collection with Fisk University, but, as the chairman of the museum told Diverse magazine: "You don’t appeal when you have won. ... Our goal was to establish that Fisk was legally bound to follow the conditions (of the gift). And that has been done. As far as we are concerned, it’s a complete victory."

Meanwhile, Tennessean columnist Dwight Lewis is pleased with the Judge's focus on "the public interest." I'm still puzzled by this whole approach. I'm as in favor of the public interest as the next guy, but isn't it also in the public interest that Fisk be able to field NCAA athletic programs? Isn't it in the public interest to improve the chances of Fisk's very survival as an institution? And how exactly are we supposed to measure the effect of various states of affairs on the public interest? If Fisk keeps the entire Stieglitz Collection, but has to cancel its NCAA sports program and make who knows what other sacrifices as a result of its precarious financial condition -- what is that, like a "72" on the public interest scale? But if Fisk gets to keep 99 out of the 101 works in the collection (plus the right to exhibit one of the other two for four months every four years) but also ends up with $25 or 30 million to solve lots of its other problems -- is that a "70"? Or, what if it gets to share ownership of the collection with a new museum in, say, Arkansas, so that it winds up with $30 million in the bank and anyone who wants to see the works just has to time his visit for the right part of the year? What public-interest score does that get? In short, the "public interest" game gets pretty slippery pretty fast. It's easy to wave your magic wand and say "public interest" -- in an ideal world of course it would be best for Fisk to keep all of the works (at least for the people of the state of Tennessee; perhaps not so much for the people in Arkansas) -- but the question is always compared to what? It's not at all obvious to me that the current state of affairs is, on the whole, better than some of the alternatives that emerged during the course of the litigation.

UPDATE: Related thoughts on "the public interest" here.

Mistakes were made

Newsday reports on an interesting lawsuit by a collector of African-American art who claims he was "duped into selling a cache of previously unknown Diane Arbus photographs" for a total of $3,500. The buyer's lawyer calls the suit "frivolous," but if the plaintiff can show that the buyer did in fact know the works were by Arbus, he would seem to have a pretty good claim of "unilateral mistake."

Campus Controversies

At Inside Higher Ed, Scott Jaschik looks at "several recent incidents involving controversial art in the higher education setting," with particular attention given to Iraqi-born artist Wafaa Bilal, whose video work Virtual Jihadi "was shut down Thursday by officials of Rensselaer Polytechnic Institute ... after it had been open less than a day."

"I'll move on. I have many other murals"

The San Mateo County Times reports on the settlement, "in the low four figures," of a threatened VARA claim by a local artist whose mural will now be painted over "to make room for a burger restaurant's logo and signs."

Over (UPDATED 2X)

I've mentioned on several occasions over the last few weeks that things were starting to go Randolph College's way in the lawsuit seeking to block it from selling four paintings. First, the court agreed to narrow the scope of the case to just the four paintings at issue, which seemed to be free and clear of any O'Keeffe-like restrictions on sale. Next, the temporary injunction blocking the sale was lifted when the plaintiffs couldn't raise the second half of the required million dollar bond. Then, two weeks ago, seven of the 19 plaintiffs in the case withdrew. Now, Christa Desrets tells us in today's Lynchburg News & Advance that the case has been dropped in its entirety. The school's decision last November to drop the portion of the case having to do with works bought from the Louise Jordan Trust (which arguably do come with O'Keeffe-like restrictions) turned out to be pretty shrewd.

There's a statement here from the group opposing the sale.

UPDATE: More here from Lee Rosenbaum.

UPDATE 2: Still more from Richard Lacayo.

"Butt artist" settlement

From the AP: "A Virginia man fired from his job as a high school art teacher after a video of his work as a so-called 'butt-printing artist' surfaced on the Internet has reached a $65,000 settlement with his former employer. The agreement comes more than a year after Stephen Murmer was fired by the Chesterfield County School Board from his job at Monacan High School for his private artwork, much of which includes smearing his posterior and genitals with paint and pressing them against canvas."

For background, see here. The case was set for trial next week.

Fisk "Wins" (UPDATED 2X)

Davidson County Chancellor Ellen Hobbs Lyle has ruled that Fisk University does not have to forfeit the Stieglitz Collection -- at least for the moment. She's given the school until Oct. 6 "to renovate its Carl Van Vechten Gallery and return the collection to public display, or Fisk could risk losing the entire collection." Jonathan Marx has the story in the Nashville Tennessean.

I still don't know why it took more than two years (and who knows how much in legal fees) to get here. Lee Rosenbaum is thrilled. Fisk's NCAA athletic programs were not available for comment.

UPDATE: Richard Lacayo says the decision is a good one: "When the school gets back on its feet, it can restore its sports program. If the art were sold, it would be gone for good .... With a $1 million grant from the Andrew W. Mellon Foundation, and the pledge of $2 million more if the school can raise $4 million by June 30, Fisk may be on the way to recovery. And when it gets there, it will still have a collection that should never have been put in play in the first place."

UPDATE 2: More from Diverse magazine, which calls the ruling "a tough blow to the O’Keeffe Museum, [which] has spent hundreds of thousands of dollars over the past two years" on the lawsuit, and "a win and loss for Fisk. It too has spent hundreds of thousands of dollars trying unsuccessfully to have the court declare Fisk has sole control over the collection so it, Fisk, could sell parts or all of the collection to raise badly needed funds for the school."

Coulda shoulda woulda

The Friends of the Barnes filed their response to the Barnes's preliminary objections last week, and I've had a chance to take a quick look at the papers. The basic argument seems to be that "two significant developments have occurred" since the court's 2004 ruling approving the move -- those developments being the $50 million sale-leaseback offer from Montgomery County and the zoning change that would allow more visitors to come. The problem is it's a little hard to see those as "new facts," rather than things that could have been in place at the time of the initial ruling but, for whatever reasons, weren't. As Harvard law professor Bruce Mann has 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.'"

I'm also not convinced they've solved their standing problem.

The papers do address the mystery of why the "secret" inclusion of $100 million in the 2002 state budget to support the move is supposed to help the Friends' case. (I discussed this issue in the second update to this post.) The idea is supposed to be that "had the existence of this legislation" been brought to the court's attention prior to the 2004 ruling, it "could have ascertained whether" the commitment "was capable of being translated into any level of financial support" for the Barnes in its original location.

The Barnes has 30 days to respond.

"We are sad to lose this iconic work"

Antiques and the Arts Online and the Maine Antique Digest have more on folk art collector and American Folk Art Museum trustee emeritus Ralph Esmerian's loan troubles, which apparently include, among other things, the loss by the museum of Edward Hicks's famous painting The Peaceable Kingdom.

"To have to go through this process at this stage of their career is too bad"

The Los Angeles Times reports that the Los Angeles Music Center is suing Claes Oldenburg and Coosje Van Bruggen for more than $6 million in Los Angeles County Superior Court. According to the Times, the Music Center entered into a contract with the artists in May 2003 to deliver a sculpture entitled "Collar and Bow." The contract price was $2.2 million, and the deadline for completion was Aug. 2004. When "technical difficulties arose," the Music Center granted a two-year extension and authorized spending an additional $1.6 million, but the work remains unfinished. The lawsuit was filed in Feb. 2007, and with mediation and settlement negotiations having failed, a jury trial has been scheduled for October of this year. "The suit accuses Oldenburg and Van Bruggen of negligence, breach of contract and unjust enrichment and adds an allegation of fraud against Carlson & Co., the San Fernando art fabrication company .... Other defendants are Englekirk & Sabol, Los Angeles consulting structural engineers, and Santa Ana-based Westerly Marine, a custom boat builder that, according to its website, was hired to help produce" the work.

Adding an especially sad element to the case, "the Times of London reported in September that cancer that Van Bruggen had battled for six years had spread to her bones."

Point of agreement (UPDATED)

Allen Strouse at ARTINFO.com: "Senators Clinton and Obama both support Senator Patrick Leahy’s (D-Vt.) 'Artist-Museum Partnership Act,' which would allow artists to make tax deductions of the fair market value of works they donate to charity—though the bill has died for the seventh time in committee."

UPDATE: More here from The Artist's Magazine blog.

Disclaimers

Sergio Muñoz Sarmiento on "the connection between law and visual culture" in the work of artist Carey Young.

Scrap

Bloomberg reports on the theft in Chicago of a $70,000 stainless steel sculpture, probably for its $300 scrap value. Would not be the first time.

Back on View

From The New York Times: "Stolen and damaged in an armed daylight robbery in 2004, the restored Edward Munch masterworks 'The Scream' and 'Madonna' will be returned to public view at the Munch Museum in Oslo in May .... Security at the museum has been tightened since the crime. Three men were convicted, but Bjoern Hoen, regarded as the mastermind, is to be retried."

"It may be that some donors submit inflated appraisals because they know they probably won't get caught"

The Los Angeles Times examines the "unchecked problem with inflated art appraisals that has cost the federal government untold millions." The Senate Finance Committee is said to be "considering legislation that would require additional scrutiny of appraisals."

"A spectacular own-goal"

Randy Kennedy had a story in yesterday's New York Times on a series of work my client Christoph Büchel has been making regarding the lawsuit Mass MoCA brought against him last spring, and the museum's continuing efforts to keep from public view documents relating to the dispute. For the moment, a couple things to note about the article.

First, Mass MoCA's Joe Thompson is quoted as saying the documents are being kept hidden because they "include the names of donors and others who he feels should have the right to privacy." But we have repeatedly invited the museum to redact out any donor or bank-account information they think appropriate. (In my last letter to the museum's lawyers, I wrote: "As I have said before, we are willing to accommodate any legitimate confidentiality concerns the Museum may have through the redaction of bank account details and the like. But the Museum has no right to restrict Christoph's ability to speak about what happened in North Adams simply by applying a 'Confidential' stamp to documents it wishes did not exist. As a nonprofit, Mass MoCA has a duty to the public to be completely open about its finances, operations, and activities.")

Second, and Kennedy mentions this but I think it bears further emphasis: if the museum had had its way, all of the documents it produced would still be confidential. In August, the museum made a motion to have all documents and other discovery kept from public view. The court, quite properly, rejected the request. Sergio Muñoz Sarmiento covered this in depth last summer. As he said then, "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."

One last point. Near the beginning of the piece, Kennedy notes that Mass MoCA "sue[d] Mr. Büchel in federal court, asking for the right to open to the public an immense installation that Mr. Büchel had been assembling for months." I was glad to see that because from time to time I hear it said that what the museum sued for was a mere "declaration of its rights," that it was afraid that, if it canceled the show and took the work down, it would be sued for that and so it had no choice but to go to court to find out what it was permitted to do. Not so. From the beginning, we asked the museum to dismantle the work, and they refused. As we said in one of our briefs to the court, "Büchel has no [objection to taking down the work and putting its components in a landfill] and, in fact, believes that the foregoing is part of the appropriate remedies to which he is entitled. Simply put, MASS MoCA can -- and should -- remove the unfinished 'Training Ground for Democracy' from Building 5 and dispose of it." The museum continued the lawsuit not because it wanted to know "what its rights were," but because it wanted a particular outcome, and that outcome was to show the unfinished work to the public over the artist's objections.

Lawyer Virginia Rutledge also gets this right in her piece on the case in the new Artforum. She notes that "Mass MoCA asked the District Court of Massachusetts to declare that the museum was legally entitled to display Büchel’s unfinished work" (and also points out that this was "the first time a US art institution has ever sought legal sanction to present work against an artist’s will"). She also does a good job highlighting "Mass MoCA’s astonishing and troubling arguments regarding the status of Büchel’s work as art," including its argument that "because of the collaborative nature of the project, Mass MoCA was a 'joint owner of any copyright'" (an "insult," she adds, that "cannot easily be taken back").

Withers Bergman's Daniel McClean also gets it, in his piece on the case here (it starts on p. 7): "Mass MoCA took the highly unusual step of applying to the court for a declaration that Büchel would not be able to prevent it from displaying his disclaimed exhibit." McClean's conclusion is that "Mass MoCA scored a spectacular own-goal": "Aside from the waste of public funds involved, the [case] must be viewed as creating an unfortunate precedent, not least for striking a blow to artists' moral rights in the United States."

Lost and Found

The Boston Globe reports on the discovery of three paintings (including a Hassam and a Courbet) that were stolen back in 1976. Now the question is, Who owns them -- the heir of the original owner, the insurance company that paid the claim three decades ago ($45,000, though they're worth millions today), or the guy who found them? The US attorney's office in Providence has asked the District Court to decide.

I think we can rule out the finder, as he seems to recognize (he says he would like the heir to get them, though he "would like the court to compensate him, too, covering his expenses and maybe throwing in a little reward"). As between the insurer and the heir, typically an insurance company acquires whatever rights the insured has to the paintings when it pays off a claim, so unless there was something unusual about this particular situation, the insurer would seem to have the pole position.

Sotheby's Suit

Josh Baer reports:

"Frank Boye has sued Sotheby’s alleging 'breach of contract and breach of fiducuary duty regarding two paintings by Paul Fisher and wrongly delivered by the defendant to the wrong person on 2006 after receipt of due notice of ownership.' They seek $ 1 million."

Didn't get the job

The bankruptcy court has denied Larry Salander's request for a job with his bankrupt gallery. Bloomberg's Philip Boroff reports that the judge was none too happy with the motion: "'You should be aware there are repercussions for such conduct,' Judge Cecelia Morris told Salander lawyer Richard Bernard in court yesterday in Poughkeepsie, New York. Morris said she may consider Bernard's 'fatally flawed motion' when he next applies for fees from the court."

"It appears Rauschenberg threw this stuff away. It is not like he's creating phony Rauschenbergs and putting his name on it"

Interesting story from the USA Today: Robert Rauschenberg is suing a Florida man for selling work he apparently fished out of Rauschenberg's trash in 1998. A local gallery is also named as a defendant.

The defendant's lawyer is quoted as saying: "Rauschenberg is an incredible artist. But what happens when that incredible artist discards material? Do the laws of abandonment apply?"

The only similar lawsuit I'm aware of is Frank Stella's 1982 suit against dealer Stephen Mazoh, which involved two damaged paintings he intended to throw away but which disappeared from the landing outside his studio and ultimately found their way to Mazoh's gallery. The case settled, with Stella recovering the works and destroying them.

Another reminder that anti-deaccessionism has its costs

"Amid a deepening financial crisis, Fisk administrators recently announced that they were ending all of the university's NCAA athletic programs after this year."

"Since, at present, there is no legal definition of 'forced sales,' courts are in the process of defining them"

Arabella Yip and Ron Spencer discuss the latest twist in Nazi-looted art litigation.

Act Now

Lee Rosenbaum mentions today that "auction sellers who were issued coupons, now redeemable for cash, in connection with Sotheby's and Christie's 2001 antitrust settlement, had better stop procrastinating. Some $45.4 million in coupons ($22.7 million at each auction house) are still outstanding, and they will become worthless pieces of paper on May 15."

She also has more on the increasing use of guarantees at Sotheby's over the last three years.

Sticky

Jason Kottke points to an initiative to get people to donate their intellectual property "into the public domain" when they die. It's an interesting idea, but I think there are real testamentary effectiveness problems here. Normally we can't dispose of property via a sticker on the back of a driver's license.

"I would like to be employed by my gallery to turn the stuff there -- the art -- into money so I can repay the debts I owe"

Bloomberg's Philip Boroff reports that Larry Salander has asked the bankruptcy court to authorize his gallery to rehire him to help locate artworks and turn them into cash. The creditors don't seem too thrilled with the idea (one creditor's lawyer is quoted as saying: "My impression, based upon my conversations with creditors, is it's a universal view that there are no circumstances in which the fox will be allowed back into the henhouse").

Randolph Update

The momentum seems to be staying with Randolph College in its deaccessioning lawsuit. Christa Desrets reports in the Lynchburg News & Advance that seven of the 19 plaintiffs disputing the sale have withdrawn from the case. A lawyer for the plaintiffs attributes the development to the recent decision by the court "par[ing] the scope of the case to issues related only to the four paintings, and not to any other litigation involving the school becoming coeducational." Randolph did not oppose the withdrawals, but "reserve[d] the right to seek recovery of damages from each of the plaintiffs."

Art Law Op-Eds (UPDATED)

It was art law day on the New York Times op-ed page yesterday. First, former State and Justice Department official Allan Gerson wrote about the "From Russia" exhibition at the Royal Academy of Arts that was nearly canceled until the British Parliament enacted special legislation providing immunity to Russia against any ownership claims with respect to the loaned paintings. He argues that "the sad truth is that the British government and the Royal Academy are now complicit in the theft of private property. If other countries follow Britain’s lead and pass 'immunity from seizure' legislation in the hopes of playing host to 'From Russia' or similar shows, the results will be far more pernicious than anyone can imagine."

Also, Eliane Karp-Toledo, the former first lady of Peru, isn't a fan of the preliminary agreement between Yale and Peru regarding the disposition of the school's Machu Picchu artifacts: "Having finally obtained a copy of the agreement, I can see that Yale continues to deny Peru the right to its cultural patrimony." Karp-Toledo figures prominently in this New York Times Magazine piece about the dispute from last summer. More recently, Paul Needham's been doing a good job covering the controversy for the Yale Daily News (see here and here).

UPDATE: Derek Fincham has some thoughts on the Machu Picchu issue.

Platforms

Kate Taylor's New York Sun story today on art-world fund-raising events for Barack Obama mentions that his "arts platform" includes support for "Senator Patrick Leahy's Artist-Museum Partnership Act, which would amend the Internal Revenue Code to allow artists to take full deductions on works that they donate to a museum or another nonprofit."

Fisk Trial Ends

The Fisk-O'Keeffe trial is over. Judge Lyle promised a ruling within 30 days.

Richard Lacayo notes: "If the O'Keeffe Museum gets its way, it seems to me it will be a Pyrrhic victory in public relations terms. Does the O'Keeffe really want to be known as the museum that seized an entire collection, an important teaching resource, from an historically black university?"

1031 Update

I mentioned a few months ago that legislation was being considered that would have eliminated like-kind exchange treatment under Section 1031 of the Internal Revenue Code for art and other collectibles. William Exeter of Exeter 1031 Exchange Services reports that that provision has been dropped from the pertinent legislation. At Blog1031.com, Steve Wayner of Bayview Financial Exchange Services takes a victory lap.

For more on art and Section 1031, see here.

"Double Threat" Crime?

Saul Levmore, Dean of the University of Chicago Law School, has an interesting theory as to why two of the four recently-stolen Buhrle Collection paintings turned up in an unlocked car just a few hundred yards from the museum.

"Mr Parisot wanted to give a fraudulent provenance to the drawings so that he could increase the prices for her work"

The Art Newspaper reports on fraud charges in Paris against art historian and Modigliani specialist Christian Parisot, who is accused of faking 77 drawings by Jeanne Hébuterne, "the artist’s mistress and mother of his daughter, [who] committed suicide, pregnant and aged just 21, the day after Modigliani died in 1920."

Wal-Mart Suit (UPDATED)

I see from the Iceland Review that Wal-Mart is suing Icelandic artist Lárus List over his registration of the domain name wa1mart.com. Apparently List showed a painting with that title in a gallery in Reykjavík a couple of years ago, and then registered the domain name. "List said the idea behind [the] artwork was to criticize American greed and cultural hegemony and that Wal-Mart’s lawsuit has proven his point."

UPDATE: More here.

More More Moore

I was surprised to learn that the University of Alabama's trademark lawsuit against artist Daniel Moore is still rolling on. Apparently a year and a half of mediation couldn't produce a settlement, and now the case is being assigned to a special master. I wrote about the dispute back in Nov. 2006 here.

Fisk Trial Underway

The Fisk-O'Keeffe trial begins today. "The Georgia O'Keeffe Museum ... hopes to seize the entire Stieglitz Collection based on its argument that Fisk has violated the conditions of O'Keeffe's donation." According to the Nashville Tennessean's Jonathan Marx, the trial is expected to last two days.

BREAKING: Paintings Found? (UPDATED)

Reports are trickling in that some or all of the four paintings stolen from a Zurich museum last week have been found.

UPDATE: Confirmed. Two of the four paintings have been recovered. "Police said they found the two paintings in a white car that was parked on the precinct of a mental hospital which is only a few hundred meters away from the private collection, which is located in an exclusive residential area in Zurich."

Speaking of not-so-sharp grappling hooks ...

There is this story from Spiegel Online.

Kids Today (UPDATED)

The New York Times has news this morning of an edgy young artist whose work was deemed inappropriate for the London Underground.

UPDATE: Decision reversed. Young Cranach is in the clear.

Butt For Cause?

A March 11 trial date has been set in the case of a Virginia high school art teacher who was fired "after a video showing him painting with his posterior and genitals appeared on the Internet." As the AP summarizes the claim, "his lawyer and the Virginia chapter of the American Civil Liberties Union are arguing that the school system violated his constitutional rights, and that what [he] did in his own time was his personal business."

"The mundane reality is that many art thieves are simply not the sharpest grappling hooks in the toolbag" (UPDATED 2X)

In today's New York Times Week in Review, Randy Kennedy discusses the "strange disconnect between the enduring mystique of art theft and the reality of its perpetrators."

Related article from a few days ago at cnn.com: "Everyone wonders, 'Why steal something you can't turn to cash quickly?' Art thieves do a simple risk versus reward evaluation, said Corine Wegener, associate curator of the Minneapolis Institute of Arts. Thieves know that 'even if they receive only a fraction of the work's market value, the cash gained was at low risk of death or injury -- museums can be a relatively soft target,' said Wegener."

UPDATE: Andrew Johnson in the UK Independent covers a lot of the same ground as Kennedy, as does Eric Gibson in the Wall Street Journal (Dr. No makes an appearance in all three pieces). CBC News talks to art theft scholar Noah Charney, who says "this is a classic example of contemporary theft by organized crime syndicates of works of art that will be used most probably for barter or collateral on a closed black market for equivalent value of other illicit goods like drugs or arms." Finally, an article in Slate looks at why it's so easy to steal art in Europe (short answer: "Smaller galleries and no guns").

UPDATE 2: More on Dr. No from Derek Fincham.

More on "To burn or not to burn?" (UPDATED)

A few weeks ago I mentioned the decision Nabokov's son was facing of whether or not to honor his father's request to destroy unpublished work he'd left behind. If a painter requests that her heirs destroy her remaining works, should they do so?

Tom Stoppard has now weighed in on the "burn" side: "It’s perfectly straightforward: Nabokov wanted it burnt, so burn it."

Tyler Cowen goes with "not burn": "Dead people don't count in the social welfare function. ... Nor is there an incentive problem. If we release Nabokov's papers as a book, maybe the next Nabokov will burn the manuscript in the first place. We're no worse off, compared to not releasing such manuscripts. Kafka told Max Brod to burn his works, but we're all glad Brod didn't. Think of the current generation as a player in the multiple selves game of the author (he could have burnt it himself long ago) and then the right answer is obvious." He also adds, in the comments: "A simple question to ask yourself is whether you would respect the wish of a parent to have a million dollar funeral, out of your money. The book manuscript is worth much more than that."

UPDATE: Tyler gets a lot of pushback in the comments, and responds here ("we limit all sorts of destructive transactions for the living, so why not every now and then a limitation upon the wishes of the dead?").

Randolph College News

The temporary injunction blocking the Randolph College deaccessioning has been lifted because opponents of the sale were unable to raise the second half of a $1 million bond required to keep it in place. Christa Desrets has the story in the Lynchburg News & Advance. My guess is, with the trial set to begin in May, the school will hold onto the paintings anyway, but we'll see. Things do seem to be going Randolph's way lately.

Resolved

The Chicago Tribune reports that The Art Institute of Chicago has resolved its claims for restitution for its fake Gauguin. The museum bought the sculpture in 1997 for $290,000 from English art dealer Libby Howie, who had bought it in 1994 at Sotheby's in London for about $30,000. According to the Tribune, "the museum said the 'matter has been resolved' without saying with whom it had reached agreement" (though it did thank Sotheby's for its "assistance in resolving the matter").

Manslaughter Charge (UPDATED)

Artist Maurice Agis, "who created an inflatable sculpture that killed two women when it flipped over in a freak gust of wind" in England in 2006, has been charged with manslaughter. BBC story here.

UPDATE: Ed Winkleman: "In the case of Mr. Agis, who is 76 years old, and whose piece worked perfectly for 10 years before this freak accident, a charge of manslaughter strikes me as political scapegoating. Yes, the victims deserve justice, but will imprisoning this man really bring them such?"

Fisked Messages

A short piece in the Nashville Scene criticizes Fisk University for being in "denial" about its inability to sell the Stieglitz Collection:

"Oh, poor forgetful Fisk University. School officials there have spent the last two years begging the Davidson County Chancery Court to let them sell artwork from the Alfred Stieglitz Collection .... Chancellor Ellen Hobbs Lyle ruled last June that Fisk couldn’t pawn any of the works, explicitly outlining that the art 'was not given to Fisk to use as a source of revenue.' Fisk apparently didn’t get the memo. ... [T]hey asked Lyle yet again for the legal right to sell out—er, sell off the collection—this time to Wal-Mart heiress Alice L. Walton, who was hoping to showcase the art six months a year in her museum in podunk Arkansas. Last Friday, Lyle again told Fisk officials what they should’ve already known by now: They can’t sell the art."

As I mentioned yesterday, however, this overlooks the fact that in her September ruling rejecting a proposed settlement with the O'Keeffe Museum, Lyle practically ordered Fisk to make a deal with Walton's museum.

More on the California Raids

Harvard lawprof Terry Martin e-mails some interesting thoughts on the recent California museum raids:

"These federal raids on the Silk Roads Gallery in Los Angeles and on four California museums raise an interesting set of links between foreign, state and federal law. At issue is the illegal importation of antiquities from Myanmar, Thailand and China. Put aside the fact that since 2003, the U.S. has banned the import of all Burmese products.

"Since 1961, Thailand has made buried, concealed or abandoned antiquities state property. Other antiquities may be exported only with a permit. Permits are never granted. Since 1982, China makes all undiscovered antiquities state property.

"Cal. Penal Code §497 makes it a state crime to bring into the state property stolen or received in another state:

Every person who, in another state or country steals or embezzles the property of another, or receives such property knowing it to have been stolen or embezzled, and brings the same into this state, may be convicted and punished in the same manner as if such larceny, or embezzlement, or receiving, had been committed in this state.

"The Archaeological Resources Protection Act, 16 U.S.C. § 470ee (c) makes trafficking in archaeological resources wrongfully obtained under State or local law a federal infraction:

No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated, removed, sold, purchased, exchanged, transported, or received in violation of any provision, rule, regulation, ordinance, or permit in effect under State or local law.

"Does this combination of foreign, state and federal laws make the National Stolen Property Act almost irrelevant in states with laws like California’s?"

Fax Campaign

There's a fax-the-mayor effort underway in support of the evicted artists at 475 Kent.

Fiskier

Lee Rosenbaum has more on the decision rejecting Fisk's proposal to share the Stieglitz Collection with the Crystal Bridges Museum.

Of all the strange aspects of the case, two stand out to me as the strangest.

The first is timing, or chronology. If it's contrary to O'Keeffe's intentions that any part of the Collection be sold, fine -- but then what have we been doing all this time? Why wasn't that finding made right at the beginning of the case? And how to explain the court's September ruling rejecting a proposed deal with the O'Keeffe Museum "in light of the possibility of securing a more advantageous solution with Crystal Bridges"? What was that about?

The other issue has to do with the O'Keeffe Museum's status as the successor to O'Keeffe. If this really is a matter of donor intent, then why couldn't the museum agree to waive this or that condition of the gift? I mean, if O'Keeffe were alive, and she had worked out a deal with Fisk like the one the museum, as her successor, worked out in the fall -- what sense would it make to say that deal was contrary to O'Keeffe's intent? She's the one making the deal. And if that's right, why should it be any different for the O'Keeffe Museum as her successor?

What am I missing?

Bio-art Sentence

The New York Times reports that University of Pittsburgh geneticist Dr. Robert Ferrell has been sentenced to a year of unsupervised release and fined $500 for providing artist Steve Kurtz with bacteria to use in a bio-art work. Kurtz is still facing trial on federal mail and wire-fraud charges.

For background on Kurtz, see here.

"As in all cases involving the theft of well-known artworks, the mystery is what the thieves intended to do with the paintings"

The New York Sun's Kate Taylor has more on this weekend's major art theft from a Zurich museum. The Art Loss Register's Chris Marinello tells her, "If they try to unload these, we will find them."

Ed Winkleman applies Occam's Razor: "Stealing artwork this famous strikes me as evidence of stupidity .... In this instance, I suspect the thieves saw an easy heist and didn't think much past that point. This deficiency will hopefully add to the swiftness with which they are caught."

No bids?

The New York Times reports that the Getty Images auction "appears to be in jeopardy." There apparently haven't been any offers "significantly above its current market value of $1.6 billion."

247WallSt.com's John Ogg says it's a business erosion story: "Getty Images has a business model that is at risk in a wiki world with low-cost of entry for start-ups. In fact, it has seen more competitors launch competing interests over the last 12 to 18 months than it can possibly fend off. ... The value of stock photos just isn't quite what it used to be. You just don't have to pay that much for digital stock photos anymore. Because of the long-standing contracts that Getty has with major sports and entertainment venues, there is still a value to this company. But that value is capped because no one needs to use their photos for news, travel, design, reference and more. Alternatives are readily available for one-tenth of the cost."

"Might have been the largest art theft in Europe"

From The New York Times:

"Armed robbers stole four important paintings by van Gogh, Monet, Degas and Cézanne from a museum in Zurich, the Swiss authorities announced Monday .... Three thieves, wearing dark clothes and ski masks, walked into the Emile Bührle Foundation, a private collection housed a couple of miles outside of Zurich’s city center ..., around 4:30 p.m. on Sunday, a short while before the museum was due to close. ... While one held a pistol and ordered visitors and staff members to lie on the floor in the main room of the museum, the two other men removed the four paintings from the wall: Monet’s 'Poppy Field at Vetheuil,' 'Ludovic Lepic and his Daughter' by Edgar Degas, Van Gogh’s 'Blooming Chestnut Branches,' and Cézanne’s 'Boy in the Red Waistcoat.' Their total worth is estimated at $163 million."

Why would someone steal such well-known works? Derek Fincham can think of four possibilities.

Lee Rosenbaum reminds us of a previous occasion when the Bührle Collection was in the news.

"This building is ... magical. It’s different. You can’t replicate it"

Today's New York Times has an update on the situation at 475 Kent Avenue: "The roughly 200 residents ... have not been able to move back in, leaving 200 lives, and scores of livelihoods, in limbo."

More Fisk Follies

You knew it would come to this: "Fisk University will not be able to sell a 50 percent share in its Alfred Stieglitz Collection of modern art to the Crystal Bridges Museum in Bentonville, Ark., says a Friday court filing. Davidson County Chancellor Ellen Hobbs Lyle's latest ruling in the university's protracted lawsuit would appear to be a decisive blow against Fisk, which has spent more than two years attempting to solve financial difficulties through the sale of its prized Stieglitz collection, donated to the school by painter Georgia O'Keeffe in 1949."

The next step is a trial beginning Feb. 19 to determine whether the entire collection should be turned over to the museum because Fisk has failed to comply with the conditions of O'Keeffe's donation.

So what's happened over the last few months is that Judge Lyle rejected a settlement between Fisk and the museum on the grounds that it was not in "the best interests of the people of the State of Tennessee" since there was a better offer available from Crystal Bridges -- but now she says Fisk isn't permitted to accept that better offer (leaving one to wonder in what sense it was ever "available" in the first place). And, to top it all off, there remains the possibility that the entire collection will be forfeited and end up in New Mexico.

Just bizarre.

I said nearly a year ago that supporters of the university, many of whom cheered the decision to reject the proposed settlement with the museum, "may come to regret the decision to leave twenty million on the table just because it wasn't forty," and that certainly seems more true than ever today: if the museum prevails at trial, Fisk will have gone from a situation where it would have had $20- or $30-million (or more) in cash and 99 of the 101 pieces in the Stieglitz Collection (not to mention the right to exhibit the signature work in the collection about 8% of the time) to a situation where it has . . . nothing.

More Stolen Picassos

The BBC reports:

"Two paintings by Pablo Picasso have been stolen from a Swiss exhibition. The artworks were stolen on Wednesday after closing time at the show of the artist's work in the small town of Pfaeffikon, near Zurich. The oil paintings - Head of Horse and Glass and Pitcher - were on loan from the Sprengel Museum in Germany."

Derek Fincham: "[T]hese works will never be sold on the open market, they are too widely known. I think a more interesting issue is security when these works are loaned out to regional museums like this one, which was the problem with works stolen in Nice last August. I think there are a lot of benefits to loaning works, and sharing collections; however there are trade-offs. Often these smaller regional museums have less-sophisticated security systems given their smaller budgets and collections."

Penn Portraits

An interesting bit of information from Randy Kennedy's story in today's New York Times about the Getty's acquisition of Irving Penn's entire "Small Trades" series, 252 portraits of blue-collar workers — "waiters, bakers, butchers, rag-and-bone men":

"Weston Naef, the Getty’s senior photography curator, said that the museum had been working to acquire the series for more than five years, but the sticking point had been copyright ownership of the images. In many cases, he said, Mr. Penn and Condé Nast ... share the copyrights to Mr. Penn’s images. And the Getty, which had long insisted that it be given copyright power over the trade series, along with the master set of the photographs, decided in the end to abandon the copyright demand."

The sale was negotiated by Pace/MacGill. No word on the price.

No Fisk Delay

Lee Rosenbaum reports that the court has rejected the Attorney General's request (discussed earlier here) to delay the Fisk trial to allow further development of a proposal for sharing its collection with the forthcoming Museum of African American Music, Art and Culture in Nashville. According to Lee, the judge ruled that "the court does not have the authority to force Fisk to do something with the gift, such as lease it to another institution." I'm glad to see things moving forward, but I find that reasoning a little hard to square with the approach the court took when considering whether to approve the deal Fisk wanted to make with the O'Keeffe Museum back in September. Then, the issue seemed simply to be whether a better offer existed or not (because, if it did, then accepting the proposed settlement was not in the best interests of the people of the State of Tennessee).

Bribery Charge

Bloomberg's Philip Boroff reports that "New York Attorney General Andrew Cuomo has accused the former superintendent of the state-owned Manhattan armory where the [Pulse contemporary-art] fair was held last year of extorting money from organizers and soliciting a bribe. In a 31-count indictment filed in New York State Supreme Court, James Jackson was accused of receiving more than $30,000 in cash and goods from Pulse, Marc Jacobs fashion shows and the New York International Carpet Show." The New York Times has a story too, focusing more on the Marc Jacobs angle (apparently 24 of the 31 counts in the indictment relate to Jacobs).

"He invokes the law of the street — finders keepers, losers weepers"

In the news today, a Warhol dollar-sign painting recovered almost a decade after it was stolen from a SoHo gallery. The New York Times story is here.

The story hints that, unlike the typical recovered work scenario (which pits an innocent third-party purchaser against the victim of the theft), here the current owner may not have the cleanest of hands: it notes "some odd coincidences" in the case, including that the current owner, "a man who has admittedly lived a hard-knock life," was "raised on Broome Street a few blocks from the gallery ... where the painting was stolen in 1998. Some public records show he lived there at that time, though Mr. Beltrez said he moved in 1989."

Chris Marinello, general counsel of the Art Loss Register, is quoted as saying a police investigation of the theft was continuing, but no criminal charges had yet been filed.

Salander Protocol

Bloomberg's Philip Boroff (who owns the Salander bankruptcy beat) reports that the gallery’s chief restructuting officer has proposed “a process to enable owners of the 4,000 artworks held at the New York gallery and its warehouses to retrieve their property. Under the so-called protocol, a gallery employee will advertise an inventory of the artworks and interested parties can submit an application to recover any pieces to a review committee.” A hearing on the plan is scheduled for Feb. 14.

As Boroff notes, it's unclear how much would actually be resolved by such a procedure:

"Proceedings may be contentious, lawyers said, with First Republic [which is owed tens of millions of dollars by the gallery and by Salander individually] casting a long shadow. Its loans are secured by a lien [against] all 'property of every kind and nature' of the gallery, according to a Jan. 3 court filing."

Remington Trademark Lawsuit

Forbes reports on a trademark dispute involving the Frederic Remington Art Museum. Apparently an entity called the Frederic Remington Trust 1861 LCC "acquired a federal trademark in 1995 for the use of the name Frederic Remington on a variety of products, including eyeglasses, carbonated apple cider, umbrellas, cologne, clothing and cigarette cases." And in 2006 the company obtained a trademark for the Remington name for bronze sculptures. The museum says the company then "threatened legal action against the museum in an attempt to get it to stop offering what [it] claimed were unauthorized reproductions of Remington's work. Instead, the museum initiated legal action."

Randolph Update

Christa Desrets has the latest on the Randolph College deaccessioning lawsuit in the Lynchburg News & Advance. At a hearing Tuesday the court "agreed to narrowing the scope of the case [to just the four paintings at issue], and said the trial could be delayed for up to six weeks from its original starting date on April 29." Desrets describes this as meeting the parties' "requests in the middle," but it sounds like it may have been a significant victory for the college to me. Remember, an important part of the plaintiffs' strategy has been to link the four paintings in the current suit (which are not subject to any explicit restrictions on sale) to the rest of the collection, much of which is (at least arguably) restricted. Severing that link (if that is in fact the consequence of Tuesday's ruling) would seem to be a serious blow to the plaintiffs' case.

"His articulated artistic justifications for his juxtapositions make the transformative and critical nature of his copying evident"

Rebecca Tushnet writes about the work of painter Russell Connor.

Is a photograph of a sculpture a "derivative work"?

Bill Patry says no:

"Photographs of other objects are not derivative works of those objects. First, a photograph of an object is not 'based on' that object: It is a mere depiction of it. Second, even if one were to find that a photograph of an object is based on that 'preexisting work' within the meaning of the definition of 'derivative work' in Section 101, such a photograph must still 'recast, transform, or adapt' the authorship in the preexisting work to be considered a derivative work. Such recasting, transformation, or adaptation does not occur in a photograph of an object."

Trafficking in tax deductions?

An article in today's New York Times suggests that the Southern California antiquities scandal may really be about the sale of tax deductions:

"Applications for the warrants said under the scheme, that smugglers and art dealers were selling prehistoric artifacts to Americans, who were provided with inflated appraisals. Then the art dealers arranged for the items to be donated to the museums, so the donors could take a tax deduction. ... According to the warrants, many of the artifacts were sold to the donors for around $1,500 each and then appraised at prices just shy of $5,000. (Above that amount the paperwork requirements on a tax return grow stiffer.) For a taxpayer in the maximum tax bracket, the savings would be only about $700 a piece."

$700 seems a tad low, but in the right ballpark. The mention of "stiffer paperwork requirements" is a reference to the fact that it's at $5,000 that the need for a "qualified appraisal" kicks in. See IRS Form 8283.

Fisk Follies

Lee Rosenbaum has been following the latest developments in the Fisk-O'Keeffe saga. Apparently the Tennessee Attorney General has asked for a delay in the proceedings in order to allow time for further exploration of a new plan to keep the university's Stieglitz Collection in Nashville through some sort of partnership with the (not yet existing) Museum of African American Music, Art and Culture.

It's another weird twist in a weird case, and I think to a large extent it's an inevitable consequence of the Chancery Court's decision to frame the analysis as what's in the best intersts of the people of the State of Tennessee, and then tackle that question in a serial way. So the proposed deal between Fisk and the O'Keeffe Museum was rejected because the Crystal Bridges Museum had put a better offer on the table (though, as I've argued, it's not so clear that it is in fact better). And now the Crystal Bridges deal might be rejected because another "better" offer has come along, even if it's on behalf of a museum that doesn't yet exist. What if yet another offer emerges while approval of this latest offer is pending? And who gets to decide which of these in many ways incommensurable offers is the "best"? The Court? Or the Attorney General, as the representative of the people of the State of Tennessee? If the latter, why not remove the process from the courts entirely and let the Attorney General just solicit all bids by a certain date and then make a decision (after all, who cares what Fisk thinks, right?). Don't forget, too, that the O'Keeffe Museum still has a counterclaim that the entire Collection should revert to it as a result of Fisk's violation of the terms of the original bequest. Wouldn't a more rational procedure have been for the Court to decide that counterclaim first and then, if it was denied, either let Fisk exercise its discretion to decide which transaction to pursue (my preferred outcome) or, if a best-interests-of-the-people standard were deemed preferable, charge the Attorney General with coming up with a process to ensure that the standard is met to his satisfaction? Or would that make too much sense?