Agis Trial Date Set

A trial date of January 26 has been set in the manslaughter trial of Maurice Agis, "whose inflatable sculpture flipped into the air and killed two women" in the U.K. in 2006.

Caught stealing?

This morning's New York Times mentions the Rockwell-ESPN lawsuit which I noted yesterday:

"[Curtis Publishing Company] has filed suit against ESPN, seeking to bar it from rebroadcasting its television series 'The Bronx Is Burning,' about the 1977 New York Yankees, until it withdraws its use of the [Rockwell] painting, 'Bottom of the Sixth.' In an e-mail message Curtis notified lawyers that ESPN did not have a license to use the painting and was committing willful copyright infringement, the lawsuit said. Court documents said that the painting was shown full screen in the second episode, 'Team in Turmoil.'"

475 Kent Update (UPDATED)

NY1 says the vacate order on 475 Kent Avenue has been lifted and tenants have started moving back in.

UPDATE: More in Tuesday's New York Times.

"You can’t just go out and take out works of public art just because you feel that you have the authority to do it. You’ve got to obey the laws."

More on the Kent Twitchell settlement from Richard Guzman in the Los Angeles Downtown News. He reports that, in addition to the $1.1 million payout, "Twitchell has until June 2009 to remove the artwork. After that, the building owner will be under no obligation to allow Twitchell access to the site."

Just Keep Scrolling

Lots of good stuff over at Sergio Muñoz Sarmiento's place, including: the story of a former U.K. public school art teacher who is charged with "making fake ceramic vases and bowls in his garden studio and passing them off as the work of renowned artists"; news of a lawsuit against ESPN for use of a Norman Rockwell painting in their "Bronx is Burning" miniseries without permission; and a pointer to an NPR piece on online art fraud.

"Often looking scruffy in hiking boots and rolled-up khaki pants, Mr. Rau trusted only his instinct and his eye"

I thought this was interesting, from Carol Vogel's piece in Friday's New York Times regarding Gustav Rau, whose estate is selling 10 works at Sotheby's in London in July:

"After his father died in the late 1960s, he sold the family business and went to medical school. He first worked as a doctor in Nigeria, then spent 20 years in what is now Congo, where he built a village hospital. In failing health, Mr. Rau returned to Europe permanently in the early 1990s and settled in Monaco. But he became disoriented, perhaps because, as a doctor, he medicated himself, and was found roaming the streets. Employees of one of his foundations filed lawsuits challenging Mr. Rau’s mental competency, and as a result, his assets, including his art collection, were briefly frozen. But he regained control and in 2001 announced a gift of 700 works to the German branch of Unicef. Included in the gift was one group of works that he stipulated could not be sold for 25 years; the rest could be disposed of to finance medical care. The remaining 300 some works in his collection were left to his estate. ... His estate is selling [these] 10 works now to cover the cost of running his hospital in Africa and other expenses."

Cowen on Cuno

Tyler Cowen on Art Institute of Chicago director James Cuno's "excellent" Who Owns Antiquity?: Museums and the Battle over Our Ancient Heritage: "The book criticizes nationalistic identity politics, calls for measures to broaden international access to antiquities, and argues that museums should again be allowed to acquire undocumented antiquities. In other words he favors a cosmopolitan, property rights approach."

Richard Lacayo interviewed Cuno about the book earlier this year (part 1, part 2).

Moore

Summary judgment motions have been denied and an August trial date set in the University of Alabama's trademark lawsuit against sports artist Daniel Moore, previously discussed here.

Authentication Committee Suits

In today's New York Sun, Kate Taylor writes about the Basquiat and Boetti authentication lawsuits. She admits the latter story, in particular, is "tortuous," but gamely attempts a summary:

"[T]he basic gist is this: In 2002, eight years after the artist’s death, [New York gallery] Sperone Westwater presented an exhibition of 15 Boetti works. It sent the catalog of the show to the [Boetti] archive, which contacted the gallery to express concern about one of the pieces. After a representative of Sperone Westwater took the work to Italy so that the archive’s staff could examine it in person, the archive declared the piece to be not authentic, and the gallery removed it from the show. The archive made no comment at the time about the other 14 works in the exhibition, of which Sperone Westwater sold nine. Beginning in 2004, however, the archive started questioning the authenticity of some of the other works the gallery had sold, including one that was purchased by the Art Institute of Chicago. It also effectively nullified a certificate of authenticity it had previously issued for a piece the gallery had sold, asking the gallery to send the work to Rome so that the archive could re-examine it, as the complaint says, 'in light of alleged "episodes of counterfeited works."' There are more details, but, suffice it to say, these seeming vagaries made Sperone Westwater pretty mad. It threatened to sue, but the archive beat it to the punch by bringing the action in Milan. In the New York suit, Sperone Westwater asks the judge to make a declaratory judgment that the Archive has no moral rights claims and also seeks damages 'for the Defendants’ injuries to the Gallery’s business and reputation,' on counts of breach of implied covenant of good faith and fair dealing, negligent misrepresentation, and interference with business relations."

Toward the end, the article also breaks news about a third recent authentication suit:

"A judgment came down yesterday in another case, brought by the owner of a stage set allegedly designed by Alexander Calder against the Calder Foundation .... As in the Basquiat suit, the [plaintiff] in this case ... alleged that the foundation had entered into a contract with the applicant, a musician and conductor named Joel Thome. But the judge didn’t buy it. He granted the defendants’ motion to dismiss, saying that accepting Mr. Thome’s application did not constitute a binding contract."

Damage During Delivery

Another lawsuit reported by Josh Baer:

"Axa Art Insurance, as subrogee for Steve Cohen, have sued Aaronson Office Furnishings Inc for $1.7 million alleging damage during delivery to Jeff Koons 'Wall Relief With Bird.'"

Twitchell Settlement

Kent Twitchell has settled his lawsuit over the destruction of his "Ed Ruscha Monument" for $1.1 million. Details in the Los Angeles Times.

Bridgeman v. Corel

There was an interesting panel discussion at the New York City Bar Association last night on Bridgeman v. Corel, the now nearly ten-year old Southern District decision holding that photographs of public domain works are not protected by copyright because they lack the requisite "originality." Rebecca Tushnet has a thorough play-by-play, and later adds some related thoughts.

Judge Posner was originally supposed to be on the panel but couldn't make it (and was ably replaced by Judge Kaplan, the author of the Bridgeman decision), but here's what he might have said, from his The Intellectual Structure of Intellectual Property Law (with William Landes):

"The court [in Bridgeman] likened these transparencies to copies produced by a photocopy machine and held that since photocopying obviously fails the originality requirement of copyright law, ... so did the transparencies. Left out of this account is the fact that ... making high-quality transparencies of artworks is a time-consuming process that requires considerable skill on the part of the photographer ....

"The court's insistence ... that a finding of originality requires a 'distinguishing variation' between the original and the copy ... creates a perverse incentive to produce second-rate or poor-quality copies. ... [But] the incentive to obtain copyright protection by producing a second-rate copy can be curbed by insisting that second-rateness is not a form of originality. ... So the court's decision may be correct after all."

Orphan Works Update

Lots of coverage of the revised orphan works legislation introduced last week in Congress. The Chronicle of Higher Education summarizes:

"Lawmakers who lead committees on intellectual-property issues on Thursday introduced legislation that would exempt scholars and others from facing excessive copyright-infringement penalties for using orphan works. They would need to first diligently try to locate the works’ owners. Should the owners surface after a work has been reused they would receive some compensation, but could not stop the derivative creation from being distributed."

More from Ars Technica and from Daryl Lang in Photo District News.

I wrote about an earlier version of the legislation here and here.

Qualified

A special section ($) in today's New York Law Journal includes a piece by Lawrence Kaye and Howard Spiegler on the "qualified appraisal" requirements for charitable donations of artwork.

It includes this closing thought: "[T]here are indications that donations of artworks could be subject to greater scrutiny by the IRS in coming years."

"Once people see the padlock, you're finished"

Kelly Devine Thomas walks around the Met with Larry Salander, for "the first interview Salander has given since his gallery was closed by court order last October."

Agam Again

Yaacov Agam's sculpture is back on view in downtown Chicago -- or is it?

The work -- mentioned earlier here and here -- "was originally dedicated in a ceremony with Mayor Harold Washington in 1983, becoming a part of Chicago's famous outdoor art gallery that also features works by Picasso and Marc Chagall." Its paint began to fade and peel, and three years ago was taken down for restoration. Agam is deeply unhappy with the quality of the restoration -- to the point that he takes the position that what is now on view is not a restored version of the original work but, instead, an unauthorized derivative work, in violation of his rights under copyright: "'The public should know that this is not a real Agam,' he said by phone Thursday from Paris. 'It is an unauthorized copy.'" (Because it's a pre-1990 work, VARA does not apply.)

Agam said he plans to travel to Chicago on May 3 to inspect the work and consult with his attorney there about possible legal action.

Two Suits

Josh Baer reports on two new art-related lawsuits.

One:

"Gerard de Geer and Sarastro LTd have filed suit for $10 million against the Authentication Committee for the estate of Jean-Michel Basquiat (and its individual members) and against Carl Flach and Stellan Holm. The suit alleges they refiused to authenticate the painting 'Fuego Flores' that was purchased from Flach in 1987 who bought it from Holm in 1986."

And two:

"Artist Ilana Zadik has sued Agora Gallery and Ariel Kahana for $3.7 million alleging that they lost, damaged, misappropriated or gave away 15 paintings."

"Gross" Thoughts (UPDATED)

Reaction to last week's "Gross Clinic" denouement from Richard Lacayo ("there's one last piece of this puzzle that doesn't make for a happy ending. The Cello Player, the Eakins canvas sold by the Pennsylvania Academy [to help pay for The Gross Clinic], disappeared into a private sale. There's no telling when or if it will ever be on public view again, though the anonymous buyer reportedly agreed to lend it back to the Academy occasionally") and Lee Rosenbaum ("the sale was inappropriate but executed in the most responsible way possible, under the circumstances").

UPDATE: Further thoughts from Lee.

A Randolph Sale

Also in today's New York Times, Carol Vogel reports that Randolph College is selling one of the four paintings involved in its recent deaccessioning lawsuit at Christie's on May 28: "The [Rufino Tamayo] painting had been the cover image of Christie’s Latin American sale catalog in November. But the college was forced to withdraw [it] from the November auctions when a group of alumnae, students and donors obtained an injunction to stop the sale. The group posted half the $1 million bond required by the court but failed to raise the rest. The injunction was lifted in February; papers were filed last month to withdraw the lawsuit." She also reports that "no decision has been made about selling the other works."

Malevich Compromise

Randy Kennedy in this morning's New York Times: "The city of Amsterdam and the heirs of the Russian avant-garde painter Kasimir Malevich have reached an agreement in a long-running battle over the ownership of 14 works that the heirs had said were rightfully theirs. The city announced on Thursday at the Stedelijk Museum in Amsterdam that the heirs would be given title to five important Malevich paintings owned by the city that have been in the Stedelijk’s collection for many years. In return, the heirs have agreed to drop claims to the other works and end a lawsuit filed against the city."

"This is it. Now we can celebrate."

I hadn't realized that the "Gross Clinic" story wasn't over, but today brings news that, through the sale of another Eakins painting, the Philadelphia Museum had raised the last of the $68 million that was needed to keep the painting from leaving town.

The buyers were the Denver Art Museum and the Anschutz Collection, so it's a real life example of Adrian Ellis's proposed approach to deaccessioning -- mutually advantageous trades between public institutions. Lewis Sharp, director of the Denver Art Museum, reminds us that there is a flip side to Philadelphia's loss: "To bring a painting of this importance into the community, it is a great thrill." Philadelphia Inquirer art critic Edward Sozanski concedes that the museum "found ideal homes for the Eakins works." So who could object?

"Why does the lion want to eat the mouse?"

Martha Lufkin has a report on the Rauschenberg trash lawsuit in The Art Newspaper.

Not to Burn

Nabokov's son has decided not to comply with his father's direction to destroy his unfinished last novel. See here for the background.

Russian Art Lawsuit

In today's New York Sun, Kate Taylor has a story on a "porcelain centerpiece that was among the top presale lots in Sotheby’s Russian art sales last week" but is now "at the center of a legal dispute, in which a Great Neck man claims that the dealer who put the piece up for auction stole it from his home and then told him he would be killed by the Russian mafia if he tried to recover it."

The parties had reached an agreement with Sotheby's to allow the sale to go forward (with an estimate of $2-3 million) -- "with the successful purchaser acquiring full title and Sotheby’s holding onto the proceeds until the dispute was settled" -- but it failed to sell. The lawsuit followed.

Kurtz Charges Dropped

The AP reports that a federal judge yesterday dismissed the mail and wire fraud indictment against Buffalo professor Steven Kurtz as "insufficient on its face."

Sergio Muñoz Sarmiento says it's about time ("After approximately five years of wasting public monies on a ridiculous charge . . . ").

For background, see here.

"It seems that neither diamonds nor fine art are truly forever"

The International Herald Tribune has a lengthy story on the Ralph Esmerian saga. It's mostly about the $187 million he owes Merrill Lynch for financing his purchase of the Fred Leighton jewelry company, but also touches on his troubles with Christie's and Sotheby's:

"Some of the paintings Esmerian gave to the American Folk Art Museum were outright gifts, and some were merely promised as gifts, with the understanding that they were being used as collateral on a loan from Sotheby's. A few weeks ago the museum was forced to take down one of its greatest prizes from Esmerian's painting collection, a mid-1800's masterpiece from Edward Hicks's 'Peaceable Kingdom' series that had hung at the museum since its West 53rd Street building opened in 2001. The painting was sent to Sotheby's, where it is estimated to fetch up to $8 million, which will be applied to Esmerian's $11.5 million debt. Although a promise is only a promise, the museum was taken by surprise. 'We didn't know about Ralph's problems,' said Susan Flamm, a spokeswoman."

Youthoughtwewouldntnotice.com

Bill Patry takes a look at a new "open blog for artists to post material they think has been ripped off, preferably by corporations."

That Yale Art Controversy (UPDATED)

Lawprof Eugene Volokh has a good post on the "abortion art" controversy at Yale. (For background, see here.) As he points out, since "Yale is a private university, ... the issue here is properly one of professional principles of academic freedom rather than of the First Amendment as such."

The latest news is that Yale is saying it will not let her show the work unless she admits it was a hoax all along.

UPDATE: Randy Kennedy has more in this morning's New York Times: "Yale University said on Monday that it would not allow a senior to participate in a campus art exhibition unless she made a written statement that her 'performance,' in which she repeatedly inseminated herself and then induced miscarriages, was a fiction that she had concocted."

"Architects are now regularly asked to sign confidentiality agreements that forbid them to talk to the press"

Nicolai Ouroussoff in The New York Times this weekend.

"What helped make this possible is the existence in the US of tax incentives for gifts of works of art that benefit the donors while they are alive"

Tate Director Nicholas Serota on how to increase giving to British museums:

"In Britain, there are tax benefits when works of art are given to the nation - but the donor has to be dead. This is the acceptance-in-lieu scheme, which gives tax relief on the deceased's estate. ... I would like to see the principles of the acceptance-in-lieu scheme extended to allow living donors to have a similar tax benefit through income tax and capital gains tax relief, during their lifetime. In the last 10 years acceptance-in-lieu has brought over £250 million-worth of works into the cultural sector - I think it is time to make a case for lifetime giving."

Here is more on the acceptance-in-lieu scheme.

"Addressing concerns about the decline of French culture . . ."

" . . . , French Culture Minister Christine Albanel unveiled a series of proposals earlier this month to stimulate spending on art works by French buyers. She wants to change exisiting laws so that the sale and auction of modern art can become as simple in France as it is in booming American and British markets. She has also proposed tax breaks and no-interest loans to induce small businesses and individuals to begin investing and collecting contemporary works that many now feel are beyond their financial range."

Full story here from Time magazine. The proposal still needs parliamentary approval.

Another Pollock Authentication Dispute

From Friday's New York Post (headline: "You Don't Know Jack!"):

"A world-renowned fingerprint analyst says a purported Pollock painting found in a Long Island garage is a worthless knockoff - and an expert who authenticated it based on a fingerprint is a fraud. Peter Paul Biro had declared the recently sold artwork a Pollock after saying fingerprints he found on the frame matched those on a paint can stored at Pollock's studio in East Hampton. But Pat Wertheim, a veteran law-enforcement fingerprint expert, contends that the prints were actually copied from the can and applied to the painting, likely by Biro."

Biro -- who's also involved with the Teri Horton "Pollock" -- "dismissed the allegation as 'libelous' and 'inviting swift legal action.'"

Salander Update (UPDATED)

Bloomberg's Philip Boroff reports that "U.S. Bankruptcy Judge Cecelia Morris [yesterday] approved a motion to convert the Salanders' [personal bankruptcy] case from a Chapter 11 reorganization to Chapter 7 liquidation."

UPDATE: More from The New York Times.

Inside Art (Law)

Lots of art law in Carol Vogel's "Inside Art" column in today's New York Times.

First, she writes about "the tumultuous saga of the jeweler Ralph O. Esmerian — who owes some $187 million to Merrill Lynch, $11.5 million to Sotheby’s and $7.5 million to Christie’s" and is "is scheduled to pay down a chunk of his Sotheby’s debt" when it sells his version of Edward Hicks's "Peaceable Kingdom" at auction next month. For background, see here and here.

She also covers Randolph College's upcoming sale of four paintings, one of which, coincidentally, happens to be another version of Hicks's "Peaceable Kingdom." She mentions the ongoing fight over the $500,000 bond the opponents of the sale posted. Their lawyer claims the school is not entitled to any part of the bond: "There are no damages, because they still have the art." The school counters that the originally scheduled sale "would have provided an estimated $50 million. 'Since we were prevented from selling the art in November, we have been missing the interest on that money every day.'"

But who's counting?

The Guggenheim Bilbao's financial director confesses to embezzlement: "I have appropriated various amounts for my own benefit for a total of EUR 486,979.38."

Machu Picchu Update

Derek Fincham has the latest on the Yale-Peru dispute. Peruvian researchers are now saying more than 40,000 objects were taken -- which is 10 times the original estimate. Derek wonders if Peru is in danger of overplaying its hand: "By increasing the claims that Yale University has mistreated Peruvian heritage, I wonder if perhaps Peru may risk losing the bargaining chips which were gained in the 2007 [memorandum of understanding]."

Bond Battle

Randolph College is going after the $500,000 bond that was posted by the plaintiffs in the (since withdrawn) lawsuit challenging the school's right to sell four paintings. "According to the [new] lawsuit, the school estimated it would have received about $50 million for the four paintings .... The interest alone from the sale would have generated thousands of dollars in income daily for the school, the suit states."

Scientifically Proven

ARTINFO.com reports that "the Prado has withheld a widely acclaimed Francisco de Goya work from an upcoming exhibition, citing doubts about the painting's attribution." More here from Tyler Green.

Virginia Heffernan isn't impressed with the "science" behind the decision.

Persistence

Sergio Muñoz Sarmiento points to a report in Spanish newspaper El Pais to the effect that "The Dali Foundation reported net earnings in 2007 of €1.3 million based on reproduction rights, trademarks and rights of publicity for Salvador Dali and his works." The foundation's director is quoted as saying they are also "collaborating regularly with police and Interpol. Grand forgeries are rare, but fraudulent reproductions based on abuse of the original contracts are quite frequent."

"You don't get yourself into negotiations involving a stolen picture and large sums of money" (UPDATED)

The Los Angeles Times reports today that Jonathan Petropoulos has resigned as director of Claremont McKenna College's Center for the Study of the Holocaust, Genocide and Human Rights in the wake of a controversy relating to attempts to recover a multimillion-dollar Pisarro painting. "The woman Petropoulos says he was trying to help [recover the painting] has accused him and a German associate of trying to extort 18% of the painting's market value as payment for shepherding its return."

Thanks to Terry Martin for the tip.

UPDATE: More from Derek Fincham: "The ultimate issue I suppose is what kind of compensation these kinds of experts can and should claim. The lawyers involved, and the Art Loss Register all take a healthy commission; and Petropolous certainly seems to have been amply compensated for his time at $350/hour."

Tax Change

The New York Times reports that among the changes in the new budget approved by the New York State Legislature last week is a requirement that "nonprofit organizations like museums ... collect sales taxes on T-shirts, mugs and other items."

András Szántó: "The same politicians who walked way from half a billion dollars in annual revenues from a Manhattan traffic congestion charge will combat future deficits with a tithe on postcards and mouse pads."

"When you give away $50 million or $60 million of folk art -- I could've sold that and not had to borrow anything"

Bloomberg's Lindsay Pollock and Philip Boroff have more on Ralph Esmerian's "financial pickle," including the following:

"Even New York's American Folk Art Museum, an institution Esmerian championed for three decades, was forced to relinquish a prized painting because of his woes. ... [O]n May 22, Sotheby's will offer a painting of about 1846 from Edward Hicks's famous 'Peaceable Kingdom' series, plucked from the wall of the Folk Art Museum. A star of its collection since 2000, ... the Hicks is projected to sell for up to $8 million. ... The painting is one of approximately 400 American folk art works that Esmerian promised to give to the museum in 2000. The museum celebrated the gift by publishing a lavish 571-page catalog and mounting a major exhibit of the works. Esmerian said that while about 200 of the artworks were outright gifts, in an unusual arrangement, he pledged the other 200 in 2005 as collateral for an $11 million Sotheby's loan."

Late today, the New York Court of Appeals stayed (at least for the time being) the sale, scheduled for tomorrow night, of "115 Esmerian family heirlooms, " in what Christie's has been calling "the most important antique jewelry auction in history."

"Lawyers, artists the world over are captivated by case"

Mary Wozniak has a package of stories in today's Southwest Florida News-Press on the Rauschenberg-trash lawsuit. I'm quoted in this one. The point I was trying to make is that even if you accept that Rauschenberg "abandoned" the physical objects at issue, that doesn't necessarily resolve the question of what intellectual property rights he still has in them (e.g., under VARA). The latter question doesn't arise in the case of a couch, but it does when you're talking about works of art.

"After this, Gehry, Rem Koolhaas — boring"

I meant to link to this terrific article last week about the East Hampton house designed by artists Arakawa and Gins. "The house is off-limits to children, and adults are asked to sign a waiver when they enter." (The "main concern" is the flooring, which "rises and falls like the surface of a vast, bumpy chocolate chip cookie.") It's all connected to their theory of "reversible destiny" -- "essentially, they have made it their mission — in treatises, paintings, books and now built projects like this one — to outlaw aging and its consequences." Sign me up!

50 x 50

In Friday's New York Times, Carol Vogel had a story on collectors Herbert and Dorothy Vogel and their "50 Works for 50 States" initiative -- they're going to give blocks of 50 works to each of 50 museums, across the country. The gifts come with two conditions: "The museum must exhibit the works within five years (with exceptions made when expansion or renovation closes a building), and the works may be transferred only if they are given to another institution as a group."

475 Kent Update

The Brooklyn Paper's Caroline Jackson: "Roughly two dozen of the more than 200 artists and residents who were kicked out of [475 Kent Ave.] in January are participating in a group show, '475 Kent Lives,'" at the Queens Museum of Art.

The Brownstoner says there's a chance the residents could be back in next month.

One Moore Judge

The University of Alabama’s lawsuit against artist Daniel Moore is now on its fourth judge. District Court Judge David Proctor, who'd presided over the case since July 2005, recently recused himself "after strong disagreements with Moore over the appointment of a special master to broker a settlement between the two sides."

For background on what is actually a very interesting lawsuit, see here and here.

June 15

One more item from Josh Baer: "If you have, or think you have, an art claim against the Salander-O'Reilly Galleries you have until June 15th to file a claim with the US Bankruptcy Court."

More on the Arbus lawsuit

From Randy Kennedy in today's New York Times.

Josh Baer says "sources close to the deal report that Phillips (as noted in the catalogue) 'has guaranteed a minimum price to the owner of the sale and has direct financial interest in such lots.' Unlike media reports of the value being in the hundreds of thousands, the estimated value of the sale was approx $1.7-2.4 million, with the guarantee being in that range (we believe)."

"A bill to do something about a discriminatory tax situation that’s been affecting artists for 40 years"

A piece in the Chicago Reader on arts funding in Illinois includes the following:

"As things stand now, anyone who owns a piece of art can donate it to a charity and take a nice fat tax deduction equivalent to its current market value. But if the artist who created the work donates it, only the cost of materials can be deducted. We’re talking canvas and paint. This is a patently screwy arrangement, and local artists, who are often hit up to donate their work for charity auctions, have frequently lamented it. On the upside, all kinds of art qualify under the proposed [Artist-Museum Partnership Act], including 'literary, musical, artistic, or scholarly compositions or similar property,' so long as the work’s value is established. An NEA report ... makes the case for passage, arguing that the change will encourage artists to donate their work and especially aid small and medium-sized institutions."

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."