"That's the trouble with fair use"

I started collecting reactions to the AP's claim of copyright infringement re Shepard Fairey's Obama image. A few more:

Brooklyn Law's Jason Mazzone asks, "Is the use fair? Hard to say. That's the trouble with fair use." He goes on to say that "a more interesting problem" is whether the AP photograph meets "the threshold requirement of originality. . . . Arguably, Fairey has simply reproduced Obama's facial features--as to which the AP owns no copyright."

GW Law's Daniel Solove acknowledges that "copyright law is suffering from a bit of delirium these days, so it's hard to know what's up or down or fair use anymore," but thinks this "might" qualify: "The [Fairey] poster isn't a direct copy of the [AP] image. The background of the photo and other details are different in the poster. The poster is quite different in its use and nature from the photo, and the market for the poster strikes me as significantly distinct from that of the photo."

In the comments to Solove's post, New York Law's James Grimmelmann says it's an "unambiguous fair use" (though he concedes that "perhaps there's only a 70% chance a court will reach the right result"). He adds that "Fairey has a decent case that his poster isn't even substantially similar to the photograph. Once you remove all the uncopyrightable elements of the photograph -- e.g., Obama's facial shape -- and all the elements that Fairey didn't copy -- e.g., the focus -- there's not very much left." (Bob Clarida made a similar point here.)

One Eighty

Felix Salmon offers some answers to the questions I raised in the update to this post yesterday. Libby Ellis emailed some thoughts in response:

"I don't understand Felix's 180 on Iowa. How could he support selling Pollock's Mural precisely because it's one of the greatest American paintings of the 20th century and ought to be in a more prominent museum collection that can presumably promote and protect it better (his argument in August), and then suddenly say that the same piece should never be sold - not even to another museum - because it's 'core' to the collection? That is quite an about-face.

"As for the Rose situation, the parent-child analogy can only be taken so far. Obviously parents don't have the right to sell or maim their children, but, like it or not, parent institutions generally have broad powers over the subsidiary, including the power to sell assets or fold completely. In the case of Iowa, the museum is subsidiary to the university, which, as a public institution, is in turn beholden to the state of Iowa. It's 'too easy,' because the law with regard to ownership rights in these cases is pretty clear cut. Salmon is correct that the case of the Barnes is entirely different. . . .

"As for donors, yes, this episode will in all likelihood make them think twice and read the fine print more carefully before donating their works to a museum with a parent. But donors need to understand - and I am sure most of them do - that there is risk in giving anything to any charity anywhere. There is no iron-clad guarantee that a gift will be stewarded according to the donor's wishes in perpetuity - and yes the Barnes is a great example here. If Brandeis is flagrantly violating the terms of donors' gifts, then the AG will have to sort it out, but I cannot imagine that art donors to the Rose were not made aware of the fact that the university ultimately owns the works and reserves the right to close the museum. ... Philanthropy is always a bit of a gamble, and you do your best to make smart decisions and to support institutions with the most integrity who are best positioned to carry out your wishes for as long as possible. And obviously charities need to take those wishes extremely seriously (which is why I find moving the Barnes, instead of selling one picture to properly endow it, to be a travesty). If you can afford to give away multi-million-dollar paintings, you can and should afford some amount of Buddhist detachment from it all, all the while donating your time and expertise, too, to the charity to help them be good stewards.

"I am not defending Brandeis; it was a bone-headed move and it will bring a host of negative consequences, not to mention bad karma, to the university that it probably didn't anticipate. I think the real tragedy of the Rose - aside from the fact that art history students will in the future be denied a fantastic learning resource - is the chutzpah of it all, the rupture of an implicit, if not explicit, contract between the museum and the university: in exchange for autonomy, the museum is supposed to gain other benefits: facilities, annual funding, indirect marketing/fundraising/administrative support, a built-in visitor base, etc. Living under the wing of an established, historically financially secure, large parent institution is supposed to bring stability and benefits to the museum that compensate for the lack of autonomy. Every museum like the Rose knows that the university has the 'nuclear option' at its disposal, but it's a tacit understanding that it will never be triggered, presumably because the parent recognizes the benefits that the museum brings to its brand and offer. (And, by the way, this is not only the case with university museums; many people may not realize that The Jewish Museum in New York, for example, is a subsidiary of The Jewish Theological Seminary, who also possesses the nuclear option but works to maintain peaceful détente with the museum.) At the end of the day, however, the parent does reserve the option, and, yes, with these governance arrangements the parent's first responsibility is to itself. That being said, one would hope and expect that the parent would not exercise this right, the same way anyone possessing even a rudimentary moral code doesn't kick their indigent grandmother out of their house onto the street: even though you have the legal right to, it's just not done.

"As for the foundation/lending model, I am not sure what that has to do with the Rose situation. I also like the idea in principle, because it's a light, flexible model that, as Salmon says, works to maximize visibility of works and doesn't carry with it the high fixed costs and sclerosis that so many museums develop over time. But as we know many art lending foundations decide eventually to create their own museums (it's irresistible!): The Nasher Sculpture Center, Noguchi Museum, Fisher Landau Center for Art, and, soon, the Broad Museum, among many others. This results, again, in the same parent-subsidiary structure, whereby the foundation retains ownership and can decide to deaccession whatever it wants and close the museum if it chooses. I am not sure how a donor to an art foundation can be guaranteed that the work will never be sold, or that it will be shown more than if it gave it to a stand-alone museum. Surely the amount of visibility depends in large part on the quality of the work, its relationship to the rest of the collection, and demand for the work from other museums. In any case, even if Brandeis is trying to use the 'low visibility' argument as part of its rationale for closure, everyone knows it's bogus - if they cared about visibility, they obviously wouldn't be talking about selling.

"The Nasher Foundation, btw, as Carol Vogel reminded us recently, sold 200 works last May to raise money for its endowment which supports the Center (which it owns). This sale barely raised eyebrows - and certainly didn't trigger the prissy fatwa - because it was done by a foundation and not a museum. So the foundation model, frankly, can be another way to get around the fatwa."

[Note: The Carol Vogel article Libby refers to is here, and includes the following: "In addition the Nasher Foundation, which owns the [Nasher Sculpture Center] ..., sold about 200 paintings and sculptures in auctions at Sotheby’s in May, raising $47.4 million more for the endowment."]

It's On

The AP is coming after artist Shepard Fairey over his iconic Obama image:

"'The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission,' the AP's director of media relations, Paul Colford, said in a statement. 'AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey's attorney and are in discussions. We hope for an amicable solution.'"

Fairey is being represented by the Fair Use Project at Stanford University. Its executive director, Anthony Falzone, says "we believe fair use protects Shepard's right to do what he did here."

The (AP!) article also quotes Columbia lawprof Jane Ginsburg as "questioning" the fair use claim: "What makes me uneasy is that it kind of suggests that anybody's photograph is fair game, even if it uses the entire image, and it remains recognizable, and it's not just used in a collage. I think that's pretty radical."

Previous post on this issue here.

On Deck (UPDATED)

Looks like a sale of the University of Iowa Museum of Art's Jackson Pollock is once again being discussed. Richard Lacayo and Tyler Green have the latest.

As Lacayo reminds us, there was a "brief uproar" around the painting last August. My posts on that uproar include this one, this one, this one, this one, this one, this one, this one, and, finally, this one.

The interesting twist this time is that one of the arguments that was made against the sale back in August was that the painting belonged to "the people of Iowa" (see. e.g., here). Felix Salmon was never much impressed by that argument (see here). In any event, in this case, at least according to this initial report, it's the people of Iowa, acting through their elected representatives in the state legislature, who seem to be pushing for the sale.

UPDATE: Salmon weighs in on this latest news here. He's changed his mind on the Pollock: he now believes "the museum must be able to hold onto it." If anything is to be sold, "they should be non-core works chosen by the museum to minimize any damage done by the deaccessioning. Anybody setting up an art museum has to let that museum take full control of ... its artworks." They can't "overrule the museum" and sell "key" works.

There are a lot of "musts" in there, but where do they come from? Why must the museum have full control over whether or not a given work is sold? Why can't the university overrule the museum? As important as the Rose is, it is also part of Brandeis University. Don't the people charged with running the school have an obligation to do what they think is best for the university? Where does this principle of autonomy come from, and does it apply only to campus art museums? If a university decides it's in the best interests of the school as a whole to shut down the football program, would we say they can't "overrule the athletic department" and do so? Would we say anybody setting up a football program has to let the coaching staff take full control of the program? Again, I'm not defending the wisdom of Brandeis's decision here. I just think it's strange to say they had no right to make it.

"Can you blame the public for believing that art is an investment, to be cashed in when expedient?"

At Forbes.com, Judith Dobrzynski tries to explain the widely divergent reactions of the art world and the general public to the Rose story.

She lists a bunch of reasons why the public has come to see art "as a tradeable commodity."

One good reason that doesn't make the list is that (whatever else it may be) art is a tradeable commodity. People trade it every day! (Even museums.)

The Art Market Monitor had some similar thoughts a few days ago here ("What seems to amplify the problem is the very success of art in recent years in market terms. Without a market value, the museum would not be a container of assets the university might view as, well, assets.").

Poster Boy

In this morning's New York Times, Randy Kennedy has an interesting story on the arrest of "Poster Boy" -- the street artist who has "made his outlaw presence known all over the city by cutting and pasting the images that are already [in the subway system] in the form of ads."

Poster Boy is also a legal philosopher: "'Socially, I’d like people to understand that there is a difference between what is right and what is just,' he said. 'If there is a law that is outdated, impractical, and/or immoral, people should have the right to challenge it. Remember, slavery was considered legal at one point. I consider the world’s current modus operandi a modern slave system. I intend to challenge it in any way I can.'"

Lawprof Ann Althouse isn't buying it: "Basically, it's collage with other people's property. Obviously, it's criminal to destroy the advertisements businesses have paid for — paid the city, by the way, so the citizens who are entertained should see that they are in fact being forced to pay for the entertainment."

"... has sent a chill down the collective spines of the major auction houses"

Judd Tully has a piece in the February Art+Auction on the Christie's decision I wrote about back in November here.

I'm quoted in the piece as follows:

"The logic of this decision, says Donn Zaretsky of the New York law firm John Silberman Associates, means that 'any subsequent buyer — no matter how remote in time and no matter how many intervening transactions have occurred — could potentially bring a fraud claim against an auction house as market maker.'"

The story notes that Christie’s has filed a motion for reargument, on the ground that New York law "is clear. . . that a stranger to a transaction has no standing to bring a fraud claim, unless the defendant actually intended to defraud that third party [through his reliance] on its misrepresentation."

Brief Rose

I didn't get a chance today to mention this excellent piece by Daniel Grant on the Rose closing. As he was with Grant's story on the Prince-Cariou lawsuit last week, Sergio Muñoz Sarmiento is impressed. The piece covers a lot of ground, but for now I'll just highlight this passage:

"A larger question may be whether selling the contents of a museum to benefit the parent institution is good economics. 'When both the art and stock markets are down, does it make sense to sell art to buy stocks?' said University of Chicago economist David Galenson. He speculated, however, that university trustees may have seen their principal donors tapped out from the last fund-raising campaign and that Brandeis was not in a strong position to borrow funds from banks. 'If other options are closed off, it's not an unreasonable position to say that this is an educational institution in financial trouble and that art is an asset like any other, so why not sell it.'"

Sergio agrees: "We don't know what financial disasters await Brandeis, and we certainly are not in the position to cry over sold artwork when ... a university's mission should be narrowly tailored to academics, professional training, and education. Many will argue that access to art is part of this education, but no one said that a university had to supply what is already present outside a university context."

Diddy Suit

The Boston Globe's Jonathan Saltzman reports that glass artist Tom Patti has sued "hip-hop and fashion mogul" Sean "Diddy" Combs in US District Court in Springfield, Massachusetts, claiming that the packaging for Combs's "Unforgivable" cologne infringes the copyrights on two "tabletop glass sculptures [Patti] created in the early 1980s called 'Compacted Gray With Clear and Ribs' and 'Modulated Solar Airframe.'"

Out of Time

Interesting art-related decision [$] out of the Eastern District of New York recently (Sands v. Bernstein, 07 Civ. 9824). Plaintiffs had a painting rejected by the Warhol authentication board in 1997. That same year, they entered into a letter agreement with the defendant under which, if he was able to get the decision reversed, they would sell the work to him for $65,000. The original letter, dated Feb. 25, 1997, said "if I succeed in having the price authenticated this year . . ." (my emphasis). In Dec. 1997, they amended the letter agreement to say "this year i.e. 1998 or longer if needed . . ." (again my emphasis). In 2007 plaintiffs demanded the return of the work; defendant refused, relying on the "longer if needed" language. On summary judgment, the court ruled for the plaintiffs, holding that "the contract has expired." It noted that "where an agreement does not specify a date or time for performance, New York law implies a reasonable period," and went on to hold that, although the "longer if needed" language is "unclear," it "cannot reasonably read to extend the life of the contract over ten years."

A second claim -- for a 5 percent commission (amounting to $170,000) on the sale of another work -- survived the motion and will go to trial.

Outliers

The New York Observer carries a review of philosopher Denis Dutton's new book The Art Instinct: Beauty, Pleasure, and Human Evolution which includes the following:

"An entertaining chapter on famous frauds tells the story of Eric Hebborn, who forged 'new' works by old masters suffused with such deep understanding of the artists he copied that connoisseurs still find his work ravishing (and maybe you do, too—his fakes are thought to be on display in museums all over the world). From the disinterested point of view of aesthetics, then, shouldn’t we credit Hebborn with the same skill as the great artists whose work he replicates? As Mr. Dutton points out, it just doesn’t feel right to do that. ... He argues that we feel wronged by forgers no matter how talented because style in art evolved as a means of distinguishing the exceptional individual from the crowd of suitors—a principle that applies equally to the Mona Lisa and Duchamp’s ready-mades."

Postmortem Publicity Rights

I've mentioned the debate between SMU law professor Joshua Tate and the team of Mitchell Gans, Bridget Crawford, and Jonathan Blattmachr regarding the taxation and disposition of postmortem publicity rights. Tate now has a new article on the subject available for download here.

Rose Break (UPDATED 2X)

Let's take a look at some other art law stories besides the closing of the Rose. Start with a settlement of the closely-watched lawsuit mentioned in the "update" here. The New York Times's Randy Kennedy reports:

"Two museums announced Monday that they had reached a settlement with heirs of the original owner of two Picasoo paintings . . . who contended that they had been sold under duress in Nazi Germany. The terms of the agreement, reached as a trial was about to begin in federal court in Manhattan, were not disclosed. But [MoMA] and the [Guggenheim] said in a statement that they would continue to own the works. ... In 2007 lawyers for Julius H. Schoeps, a great-nephew of the paintings’ original owner, Paul von Mendelssohn-Bartholdy, told the museums that they believed Mr. Mendelssohn-Bartholdy, a German Jewish banker who died in 1935, had sold the works ... under duress, and demanded their return."

UPDATE: More coverage from Lee Rosenbaum.

UPDATE 2: Good analysis from Richard Lacayo: "As with most settlements the details of this one are sealed, so we may never know whether or how much money changed hands. And by itself the mere fact that the two museums chose to settle doesn't mean they didn't have faith in their own arguments. (Or, for that matter, that the plaintiffs didn't have faith in theirs.) But jury trials are a crapshoot and for the museums at least, the paintings were too important to lose."

Midday Rose (UPDATED 2X)

The Art Market Monitor has some thoughts in response to Roberta Smith's paean to the indispensability of art, which I mentioned last night:

"It’s hard to argue with this position. The destruction of the Rose Museum is a terrible act. What seems to amplify the problem is the very success of art in recent years in market terms. Without a market value, the museum would not be a container of assets the university might view as, well, assets. The question is whether art can have great cultural value without having market value. It’s a question that lies beyond our capacity to answer. But nonetheless remains at the heart of the battle over deaccessioning, the art market and, now, the destruction of the Rose Museum."

Richard Lacayo picks up on a suggestion by Felix Salmon that, under the doctrine of "cy pres," the Massachussets attorney general could "grant a waiver and allow the university to dip into endowment funds," which would otherwise be prohibited by state law. I don't know much about the relevant Massachusetts law, but I'd be surprised if the "cy pres" doctrine could be used to avoid compliance with state law like that. "Cy pres" is a trust law doctrine which says that, if the funds in a charitable trust can no longer be devoted to the purpose for which the trust was created, they can redirected to another, related purpose (so, for example, the March of Dimes Foundation was permitted to switch from fighting polio to fighting other childhood diseases after the polio vaccine was developed). Perhaps I'm mistaken, but I don't think "cy pres" can be used to "grant a waiver" from express statutory requirements.

Lacayo also says the following:

"Meanwhile, what does all this mean for the museum association rules meant to discourage museums from selling art from their collections? Brandeis is presumed to have decided simply to close its museum in order to get around those rules and have a free hand to sell what it pleases. To some people this whole sorry episode suggests that museum association rules are such a hassle they will just encourage schools to trash their museums entirely rather than answer to anybody's code of ethics. But what it still demonstrates to me is how important the rules remain, especially for campus museums, because in times of trouble university trustees and administrators will always be tempted to look at their museums as giant piggy banks, with lots of very valuable, very portable assets. ... If there's no defensive perimeter, no way to penalize museums that sell, in no time they'll all do it. And when they do, more often than not —much more often than not — their public works will fall back into private hands."

(Salmon shows up in the comments to say: "The deaccessioning rules I think were put in place as an obstacle to museums selling off their own art. They're clearly not much use as an obstacle to universities selling off their museums' art without the museum's consent.")

I've had my say on this kind of slippery slope argument (e.g., here and here), but for now I just want to emphasize what this position entails. The slippery slopists are willing to accept the loss of at least one museum (and, if others adopt what Laurie Fendrich is calling the Brandeis Maneuver, perhaps more) to prevent the speculative risk that, if we allowed museums to sell individual artworks in times of crisis, "in no time they'll all [be doing] it." So they would rather see the Rose (and perhaps other museums) fail than take a chance on trusting the people who run our museums to responsibly exercise the discretion to occasionally sell works from their collections (just as we trust them to responsibly exercise the discretion to sell works in order to raise funds to buy more art, which nobody (well, almost nobody) objects to). (I know I will hear in response that the Rose didn't "fail," but that's not the point. The fact is that the strict, no-exceptions-under-any-circumstances policy against deaccessioning led directly to its closure, and the logic of the slippery slope argument is that we'd rather have that happen than live in a world where individual works can be sold for anything other than the purchase of more work.) As for Lacayo's concern with works falling back into private hands, couldn't that be dealt with through the adoption of the Ellis Rule?

UPDATE: On the "cy pres" issues, this post from Jack Siegel of Charity Governance Consulting LLC explains that there are some cy pres-like mechanisms built into the governing Massachusetts statute. UPDATE 2: Still more on this issue from the Brandeis student newspaper: "The current law is based on the Uniform Management of Institutional Funds Act, which Massachusetts adopted in 1975. UMIFA states that the governing board of an institution may not appropriate funds from its endowment exceeding the 'historic dollar value' of the endowment. (Historic dollar value is defined as the total value of all contributions made to an endowment at the time each of the gifts that make up that fund was donated.)"

Weekend Rose

Quick end-of-the-weekend Rose roundup.

Roberta Smith says the move is "an act of breathtaking stealth and presumption":

"In a just and moral society, art is crucial to our understanding of freedom, difference and individual agency. The message out of Brandeis University last week — to its own students and to the world — was that when the going gets tough, none of this matters. Art is dispensable."

It's a "destructive — and self-destructive — move," but she also gets why it's happening:

"What better way to avoid the messy legalities of deaccessioning artworks, with the attendant denunciations from Association of Art Museum Directors and other professional organizations that monitor and weigh in on sales of individual works of art? (The association’s guidelines say that art works can be sold only to finance acquisitions.) If there is no museum, there are no guidelines to violate."

The New York Times editorial board also condemns the move:

"Selling the university’s art collection would help plug its financial gap, but it would create a gaping hole in Brandeis’s mission and its reputation. It would default on one of the great collections of contemporary art in New England .... Surely it would make more sense to share the pain across the university’s budget."

Felix Salmon listens to a presentation Brandeis's president and COO made at an open forum at the school last week, and comes away thinking "it's clear ... that closing the Rose is completely and utterly unnecessary." And he still thinks the reason it's happening is to "get around [the] deaccessioning rules":

"Weirdly, neither [COO] French nor [president] Reinharz felt the need to explain why they were closing the museum: maybe they thought it was obvious. And no one asked them, either. But whenever journalists have asked the question, the answer has been the same: basically, it's really difficult to sell art out of a museum, so if we're going to be selling art, we're going to have to close the museum first. . . .

"Keeping the museum open would surely make selling the art more difficult -- the director would surely object were any important works to be put on the block. . . . I suspect that shuttering the museum is basically a way of minimizing the opposition to any given sale: if everything goes according to the trustees' plan, then once the current firestorm is over, the university might be able to sell off individual works very quietly, without having anybody try to stand up for them and the role they play in the university's cultural life."

(Salmon had more on how the prohibition against deaccessioning led to the closure of the Rose late Friday.)

The Art Market Monitor is connecting more dots.

Lee Rosenbaum asks whether Brandeis president Jehudah Reinharz should be deaccessioned.

Sergio Muñoz Sarmiento is almost convinced "that the deaccessioning police caused the Rose Art Museum's fire-sale."

Thomas Garvey says "between Brandeis and the Rose, I'll take Brandeis - and I don't see why some of the Rose's holdings can't wind up in the collections of other area institutions, where they'll actually be more accessible to the Boston public."

"Had it not been for the deaccessioning rules . . . the Rose Art Museum might well have lived"

Felix Salmon gets it straight from the horse's mouth (the horse in this case being Brandeis director of communications in the Office of Development and Alumni Relations, David Nathan) that, as he puts in the title to his latest post on the subject, the "deaccessioning rules doomed the Rose Art Museum":

"Brandeis has been saying that it's not going to be selling off all of the Rose Art Museum's art at once -- or even, necessarily, any of it at all. So I asked Nathan why the museum needed to be shut down, if the university is going to hold on to the vast majority of its art for the near future.

"Nathan told me that the reason is that selling art which is part of a museum is very difficult indeed. Clearly, Brandeis has come to the conclusion that by shutting down the museum, it can ignore all rules pertaining to deaccessioning, and worry only about the strings attached by donors to individual artworks. . . .

"On NPR Wednesday, Brandeis's president, Jehuda Reinharz, said that he'd received a phone call from the donor of a Warhol worth over $1 million, saying that the university came first, and giving Brandeis full permission to sell the painting if it needed to.

"But even if the donor was perfectly happy for Brandeis to sell the Warhol, the Association of Art Museum Directors would not have been . . . . So it seems that for the sake of doing an end-run around the objections of the AAMD and the museum's executives, Brandeis decided to close the museum entirely.

"Had it not been for the deaccessioning rules, then, the Rose Art Museum might well have lived. There's a good chance that its director would have resigned in protest at his art being sold from underneath him, but then he would simply have been replaced by someone more complaisant .... It would have been a deplorable outcome, but still one preferable to what we're facing today. (Sorry, Tyler, but the loss of a few artworks -- especially if they're sold to other museums -- really is preferable to the loss of an entire museum.)"

Numbers

Financial journalist Felix Salmon points to this "astonishing" article by Judith Dobrzynski at the Daily Beast on Brandeis's overall financial situation.

He's not buying it:

"[H]ere are the numbers: the Brandeis endowment was $712 million in June, and is $530 million now. On top of that, there's an ongoing capital campaign that has raised $820 million of its $1.2 billion goal; much of that money will be used to construct new university buildings. And the university's projected deficit for the next six years is just $79 million -- less than half the losses that the endowment suffered in just six months. [Brandeis COO Peter] French honestly seems to be asking us to believe that faced with a deficit of $13 million a year, he can neither simply spend that money out of the $530 million endowment, nor use any of the money from the capital campaign, but rather has no choice but to sell off a magnificent collection of artworks last valued at $350 million."

Boston-based reviewer Thomas Garvey reads the same article, and comes away with an entirely different impression. He points to this passage in particular:

"Brandeis has already cut expenses and staff this year and last, and raised tuition and fees. French said the alternative now was either a drastic shrinking of the university or selling the art. Faced with the prospect of closing 40 percent of the university’s buildings, reducing staff by an additional 30 percent, or firing 200 of its 360 faculty members—any of which, French said, would drastically change the university’s mission and essentially cripple it—'We’d rather use [the] Rose.'"

His conclusion:

"I hate to say it, but if those really are the choices facing the university, I think they may be doing the right thing. I know, I know - shocking from an arts blogger! But I have to confess I've only been out to the Rose once in my life, and while I'm not saying their art is 'hidden away' in storage (it's often loaned out to other shows), still, the vast majority of it is never on the walls - and aren't there major gaps in the modern collections of, say, the MFA, that could be bolstered by buying the Rose's holdings - which would, perforce, see more foot traffic? As I mentioned before, the Rose collection is simply the most liquid asset Brandeis has. If they're really facing a crisis that could cut the faculty in half (and I realize that may be an exaggeration), then I think maybe people should back off a bit and begin trying to think of ways to keep the best of the Rose collection in public hands, and in the New England area."

Salmon also quotes an email from me, summarizing what I suspect is really going on here . . .

"They want to sell a few paintings without getting hassled by the museum groups. I think, at the end of the day, we're going to end up with a research and study center plus art gallery that looks remarkably like the Rose Art Museum, except it's not subject to the museum ethics rules."

. . . and says he thinks I'm being "overly optimistic." His alternative theory:

"I suspect it had been counting on getting a substantial bequest from Carl Shapiro when he died, and now that Shapiro's money has been evaporated by Bernie Madoff, Brandeis has decided that the Rose's collection will replace it as a source of future cashflow. It's shameful."

Speaking of Madoff-induced evaporation, the NYT's Nick Kristof has a list of "nearly all the private foundations that invested money directly with Mr. Madoff, at least at the time of their most recent tax filings": "What is staggering is how many of these 147 foundations had all their assets invested with Mr. Madoff and may have been wiped out as a result. For example, the Avery and Janet Fisher Foundation, which supported everything from various museums to meals-on-wheels programs, appears to have been fully invested with Mr. Madoff. And the same is true of dozens more." Staggering, is right. (Thanks to a loyal Art Law Blog reader for the tip.)

Grey Area

Daniel Grant has a piece in the Wall Street Journal on the Richard Prince lawsuit. He points out that "the overall trend of court decisions between 1989 and 2005 (and the present) is to allow greater latitude for the claim of the new artwork being transformative." Additional thoughts from Sergio Muñoz Sarmiento here.

"Did the Deaccessioning Police Doom the Rose?"

The Art Market Monitor says the answer seems to be yes.

Think about it

I want to say a little more about why, contra my friend Sergio, I think it's unhelpful to speak of the Brandeis decision as a "deaccessioning."

It seems to me that the word is simply a conversation-stopper. Its function is to prevent debate, prevent discussion.

The question before the Brandeis trustees - the question people are continuing to debate - is whether, given the school's financial situation, given its broader goals, given what else would have to be sacrificed if it decided not to sell, it makes sense to sell some or all of the Rose's collection.

That's obviously a very difficult question, and one that I think none of us observing the situation from afar is in a position to really answer.

The Brandeis trustees thought the answer was yes, that selling art was the least of the various evils it faces as a result of the financial crisis. As John Lisman, a biology professor who has taught at Brandeis since 1975, put it in this morning's Boston Globe story: "To give away a family heirloom is a really painful thing. But the overall question is, to ensure the long-term health of the university, what do you do? Maybe you just reduce every department by a third. Do you think leaving every academic weakened is a better option that the Rose option?''

It's entirely possible they were wrong about that.

But calling what they're doing a "deaccessioning" is intended to avoid (or at least has the effect of avoiding) all of those difficult questions. It's intended to shut off all thought. Once we know we're dealing with a deaccessioning, we don't have to grapple with any of the hard questions, don't have to think about what other university programs should be cut instead, which academic departments should sacrifice and how. When we see a deaccessioning, we don't have to think at all: there is a "rule" that applies to deaccessionings, and that rule tells us that you may never sell works of art (except when you can) because they are "held in trust" (except when they're not).

When I first read Brandeis provost Marty Kraus's comment last night that closing the museum "would provide the university more freedom," I assumed she meant freedom to sell. But now I wonder if she didn't mean freedom to think.

The more I hear about the Rose story . . .

. . . the more it seems to me that the whole thing is just a way to get around the prissy fatwa against deaccessioning. Geoff Edgers has a preview up of his story in tomorrow's Boston Globe, which includes the following:

"Brandeis provost Marty Krauss also shed new light on the reasoning behind the closure, which is scheduled for late summer. In an interview, she said the university felt it could not operate a museum which is expected to abide by a code of ethics limiting the reasons it can sell off portions of its collection, and then sell art to pay for needs other than the museum. Closing the 48-year-old museum entirely would provide the university more freedom, Krauss said."

In other news

Some non-Rose art law stories worth briefly mentioning:

• Artist Maurice Agis's manslaughter trial is under way in England.
• Park West Gallery, accused of ripping off collectors, has decided the best defense is a good offense.
• The Financial Times on how art-backed lending is faring these days.

"All or nothing, that seems to be the ethical landscape"

Derek Fincham had the same reaction I had to the Rose news: "the deaccessioning hurdles may perversely make it more feasible for an institution in financial or other difficulty to completely shut down, rather than sell parts of a collection."

As if on cue, Tyler Green then shows up to inform us that "selling some of the Rose Art Museum's art collection is not an improvement."

As Derek says, all or nothing.

"You can't do this piecemeal"

In a post yesterday, I said:

"I wonder if the taboo against selling individual pieces might not have contributed, in some small way, to Brandeis's decision to close the museum? If they could have sold five or ten of the most valuable works without controversy, might the trustees have reached a different conclusion?"

This morning Richard Lacayo posts an interview with Michael Rush, the Rose's director, which includes the following:

"You can't solve a shortfall problem by selling, say, our Lichtenstein and still maintain yourself legally and ethically as a museum. I think that's what's behind the decision to do something drastic and close the museum.

"Over the last couple of years we went through one very meticulous deaccessioning. It involved some art that was not part of our mission and had never been shown in the museum but that happened to be valuable. We got in before the market crashed. We went through several meticulous processes there, with donors, with boards, with lawyers, with the AAMD.

"So the university, from the top down, was intimately familiar with deaccessioning processes. And I think that, rather than go through the scrutiny that would accompany the sale of a few paintings, they decided instead on what I'm sure they felt would be a one-shot situation of horrible feedback over closing the museum. As draconian as it may seem, I think that closing the museum was what they were advised, legally, to do. You can't do this piecemeal."

Evening Rose

Lots to take in on the Rose story.

First, an important correction from Geoff Edgers: it turns out the Massachusetts attorney general's office has not signed off on the move.

More from Randy Kennedy and Carol Vogel in the New York Times:

"Emily LaGrassa, director of communications for the state attorney general ..., said that Brandeis had informed the office on Monday of its decision, but had not consulted with the attorney general in advance. ... 'We have not yet offered any opinion on any aspect of the proposed sales,' she said, adding, 'We do expect this to be a lengthy process.'"

Kennedy and Vogel do a great job with the story: the word "deaccession" never appears. As I said this morning, this isn't so much a deaccessioning as the closing of a museum. Sergio politely disagrees: he says "even though it is not the museum that is deaccessioning, isn't an institution (in this case Brandeis University) selling off its art assets to continue being in business?" Of course that's true. "Deaccessioning" is, after all, just a fancy word for "selling," so yes, Brandeis is selling the museum's collection, but thinking about it in terms of deaccessioning is more likely to confuse than enlighten. For example, the argument against deaccessioning generally starts from the premise that, as the director-elect of the Kimbell Art Museum put it in an interview with Lee Rosenbaum just a few days ago, "art is the reason why a museum exists," that "a museum has operating expenses in order to serve the mission of caring for the art and presenting that art to the public." But certainly that isn't why a university exists. Brandeis's mission is broader than caring for art and presenting it to the public. There are lots of reasons to be upset with, to oppose, to protest against the university's decision, but calling it a deaccessioning doesn't seem to me to advance the debate any.

Meanwhile, Bloomberg reports on a Madoff connection: "Among the biggest donors to Brandeis are the philanthropist Carl Shapiro and his wife, Ruth. Carl Shapiro and his family foundation had losses of $545 million in Madoff’s alleged Ponzi scheme."

And Lee Rosenbaum has lots of stuff, including reaction from the AAMD and the Association of College and University Museums and Galleries (they're both against it) and a suggestion that the university's claim of a unanimous faculty vote isn't quite right.

Finally, it got lost in the shuffle of the Rose announcement, but another museum announced it was closing too: the 73-year-old Gulf Coast Museum of Art "abruptly closed its doors for good Monday .... The museum says it's out of money and options. Instead of putting its sculptures, jewelry and artwork into temporary storage, it's preparing to donate them to other museums."

Morning Rose

Geoff Edgers has a fuller story on last night's Brandeis bombshell in this morning's Boston Globe, including the following:

"A Brandeis spokesman said that the Massachusetts attorney general's office ... has been informed of the move and will not block it. Money from the sale of the art will be reinvested in the university."

More at Inside Higher Ed.

The Art Market Monitor wonders where I keep my (or, really, Libby Ellis's) crystal ball.

Lee Rosenbaum begins rallying the troops. In a previous post last night, Lee reproduced the university's press release on the announcement, including that "in a special session on Jan. 22, the Brandeis faculty voted unanimously to support the president and trustees."

Tyler ("The art can be the art anywhere. It can be seen anywhere. So long as there is somewhere for the art to go -- and there is -- art is more important than institutions") Green has five questions.

Richard Lacayo sees this move as vindicating the "slippery slope" argument against deaccessioning: "when it comes to campus collections the slope gets more slippery all the time. Campus museums, chock full of art that's easy to cart away, are the most tempting asset for university trustees and administrators to liquidate."

I'm actually not sure it makes sense to view this through the "deaccessioning" prism at all. Isn't it more that the university has decided to get out of the business of running a museum altogether? If the National Academy, after embracing furious fundraising and failing, were to declare bankruptcy and close its doors, would that be properly viewed as a "deaccessioning" worthy of condemnation? In fact, I wonder if the taboo against selling individual pieces might not have contributed, in some small way, to Brandeis's decision to close the museum? If they could have sold five or ten of the most valuable works without controversy, might the trustees have reached a different conclusion?

WOW: Rose Art Museum Shutting Down

The Boston Globe's Geoff Edgers and Peter Schworm are reporting tonight that "Brandeis University will close its Rose Art Museum and sell off a 6,000-object collection that includes work by such contemporary masters as Roy Lichtenstein, Andy Warhol, and Nam June Paik." The doors will shut this summer.

More later on what will undoubtedly be a huge story, but for now I'll just quote Libby Ellis, from the email reproduced here last month: "My sense is that most people have no idea how bad things are out there today. The idea of ‘perpetuity’ itself may be under threat at this point."

"Reminding us again, that when you're on vacation, take extra care when purchasing art"

Derek Fincham has the latest lesson, this time involving the work of Salvador Dali.

See here for a previous example.

"One count of institutional vandalsim"

The Carnegie Museum of Art security guard who slashed a Vija Celmins painting with a key last spring has plead guilty and will be sentenced on April 7. The guard "has been seeking mental health treatment since his arrest."

Fairey Use? (UPDATED 3X)

The hunt is on for the photographic source of Shepard Fairey's iconic Obama image, and, as Mike Madison says, now "the fair use fun can begin." Madison gets it started; he thinks the photographer may well have a good claim: "Sure, the photo is 'transformed' to a sizable extent, which pushes the fair use needle to Fairey’s side. But surely the owner of the copyright could have charged Fairey or the campaign a fee to use the photo. Given the ubiquity of the image, a well-conceived deal might have generated a substantial amount of money. Push that needle back a ways."

UPDATE: Interesting discussion going on in the comments section at PrawfsBlawg here.

UPDATE 2: My friend Bob Clarida, a copyright guru at Cowan Liebowitz, emails the following thoughts: "This would be a tough fair use argument to win because the 'transformation' is purely in the look of the work, not the purpose. There's no commentary going on. Also, a large and significant portion the work is used, and campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there'd be a strong argument for market harm even if there's been no measurable lost sales by the photographer. I wonder, though if you could successfully argue that there's no substantial similarity, as in Reece v. Island Treasures, where there was no infringement when defendant made a stained-glass piece of a hula dancer that looked much like the plaintiff's photo (from which it was apparently copied). I'd say the Reece analysis applies better than fair use, especially when combined with Judge Kaplan's discussion of the thin copyright in photos of the 'right place, right time' variety (Mannion v. Coors), which the Obama shot appears to be. Reece is from the district of Hawaii, though, which doesn't carry a lot of weight in the copyright world. So Reece is maybe a long shot, no pun intended, but better than the fair use argument in my opinion."

I wrote about the Reece case here and here (and cited a NYLJ piece by Bob on it here). Bill Patry discussed Mannion v. Coors here.

UPDATE 3: Richard Lacayo offers some thoughts.

"Prince himself ... unapologetically problematises issues of authorship"

The Art Newspaper has more on the Richard Prince lawsuit, mentioned earlier here.

People keep mentioning Blanch v. Koons, but it's worth noting that Koons's use of the underlying image in that case seems quite different from the "purer" kind of appropriation that Prince is up to here (although admittedly I've only seen a couple of the relevant works). As the District Court decision in Blanch described it:

"[Blanch's] photograph shows the lower part of a woman’s bare legs (below the knee) crossed at the ankles, resting on the knee of a man apparently seated in an airplane cabin. She is wearing Gucci sandals with an ornately jeweled strap. One of the sandals dangles saucily from her toes. In Blanch’s original photograph, the airplane cabin setting included its floor, window, wall and part of a seat, a small portion of a fur garment, and a magazine on the floor by the man’s seat. .... Koons copied only the model’s legs, feet, and Gucci sandals as one component in his painting .... Koons omitted the background and all its details. There is no airplane cabin, lap, magazine or other detail from Blanch’s picture. The legs are not represented as level (resting on a lap) but as hanging vertically, with three other pails of women’s legs and feet (eight legs and feet in all, roughly parallel to each other)."

And later:

"[Koons] included in the painting only the legs and feet from the photograph, discarding the background of the airplane cabin and the man’s lap on which the legs rest. Koons inverted the orientation of the legs so that they dangle vertically downward above the other elements of [the painting] rather than slant upward at a 45-degree angle as they appear in the photograph. He added a heel to one of the feet and modified the photograph’s coloring. The legs from [Blanch's photograph] are second from the left among the four pairs of legs that form the focal images of [the painting]."

And from the Second Circuit's opinion:

"As Blanch testified in her deposition, her key creative decisions in the shoot were the choice of an airplane cabin as a setting and her placement of the female model's legs on the male model’s lap. But neither the airplane background nor the man’s lap appear in [the painting]. It depicts only the woman’s legs and sandal-clad feet."

I want to be clear that I'm not saying Prince's work here is not, or should not be seen as, transformative and therefore a fair use. Just pointing out that Blanch v. Koons is not the get-out-of-jail-free card that some seem to think it is.

"This is hardly the time to subsidize a new 'tourist magnet' museum"

Philadelphia Inquirer art critic Edward Sozanski: "As the city government wrestles with a staggering projected budget deficit, the folly of moving the Barnes Foundation from Merion to the Benjamin Franklin Parkway becomes even more egregious."

Puccio Suit

Josh Baer: "Puccio Gallery in NYC has been sued for $500,000 by Deborah Benjamin alleging they sold her fake works by Picasso and Milton Avery."

Enter Sandman

Over at his Deaccessioning Blog, Sergio Muñoz Sarmiento sizes up the state of the debate, and offers a few thoughts of his own, focusing primarily on the case of emergency deaccessionings by failing institutions (which he likens to a "band-aid on a bullet-hole").

There's a lot to take in, but one quick comment for now. Sergio sends his readers here "for solid pro-deaccessioning reasons," but I wouldn't describe my position as "pro-deaccessioning" any more than you would describe someone who accepts the practice of deaccessioning-to-acquire-more-art as "pro-deaccessioning." The position I've been taking is that the AAMD's black-and-white rule is silly, and that the reasons traditionally given in support of the rule don't stand up to much scrutiny (in part because they fail to explain the disparate treatment of sales to buy more art -- which are considered fine -- and sales to fund other worthwhile things -- which are not). So (pace Christopher Knight) I'm not "campaigning in favor of museums selling art from their collections to pay the light bill." I'm campaigning in favor of not ruling it out.

"Gen. Nistri said there was evidence the smuggler intended to try to sell the works outside Italy"

CBC News:

"Italian police have recovered 10 masterpieces stolen in 2004 .... The paintings had been stolen from the halls of Santo Spirito in Sassia, a religious complex near the Vatican. They were discovered in good condition, wrapped in newspaper in the trailer of a suspected art smuggler ...."

"I'll hazard a guess that Obama is unlikely to pursue action against the thong makers"

The Guardian looks at the right of publicity as it applies to politicians.

"It was bound to happen eventually"

Daryl Lang of Photo District News has more on the Richard Prince lawsuit, mentioned earlier here.

Lang says the case "is similar to a 2003 lawsuit by photographer Andrea Blanch against artist Jeff Koons" for his use of "a photograph of a woman’s legs as part of a painted collage." Koons won that case, which I discussed here. I'm sticking with "astonishingly unpredictable" in this case.

"The current rule seems both incomplete and overly restrictive. Surely there’s an opportunity here for reasoned reform"

Jen Graves has an interesting podcast interview with Jori Finkel, who wrote the New York Times article on deaccessioning discussed here.

Another Park West Lawsuit

This one in Michigan state court. Detroit News story here.

Previous post on Park West here.

Salander Update (UPDATED)

Bloomberg's Philip Boroff and Lindsay Pollock have an update on the Salander-O’Reilly story, including news that a New York state grand jury is considering criminal charges against Salander.

UPDATE: Mark Durney has some thoughts.

The Museum of Underappreciated Art

A deaccessioning thought experiment from Felix Salmon.

Trust Yourself

Newcurator.com points to a piece by the director of the Addison Gallery arguing against the National Academy deaccessioning. It's of the "held-in-trust" genre ("When trustees and curators make the decision to accept a work of art in a museum’s collection, they agree to hold it in trust for the education and enjoyment of the general public. ... In selling art to pay the bills, a museum betrays the public trust"), which we've seen several times before.

Among the questions I've been asking in response to this form of argument is: how does the very same art magically become not held in trust when a museum decides to sell it to buy more art?

Newcurator makes a different, but related, point. Noting that the piece argues that the National Academy should have sold its Fifth Avenue building rather than two paintings, he says: "So, because there are bigger museums nearby, the National Academy Gallery should sell the building that was donated to them by the Huntington family in 1939?"

Or, put another way: why isn't the building "held in trust" for the public too?

This and that

Lots of art law in the latest Baer Faxt:

• A $450,000 suit against furniture dealer Craig van den Brulles of Capital Furnishings in Nolita alleging the Henry Moore plaintiff purchased was not authentic. Says Josh: "Note: maybe don't buy art from decorators?"
• "Sources report that dealers and collectors have been trekking down to the NY Grand Jury to testify against Larry Salander recently."
• "The US Government is seeking forfeiture of $1 million painting by Lelio Orsi sold in Sotheby's old masters sale last January due to improper importation."

A Minor Dismissal

I mentioned earlier that Sotheby's and Halsey Minor were fighting over whether he could bring a separate action against the auction house in California, in addition to the one they brought against him here in New York. Sotheby's has now won that battle. At almost exactly the same time earlier this week, the judge in the New York action enjoined the California case as duplicative and the California judge dismissed the case under the "first to file" rule. (No link yet, but trust me.) So the action will continue in New York only.

Minor, you'll recall, also has an unrelated suit going against Christie's.

"The free-for-all nature of the world of expensive art seems designed to confuse the difference between cheating and simply trying to make a living"

The Art Market Monitor points to this "priceless" story detailing San Francisco dealer Nancy Wandlass's many legal problems.

Related story, from a couple of years ago: "Calif. couple left trail of lies, disappointments in art world."

"If you think that number sounded good 18 months ago, think about it now in this economy"

Appellate arguments were heard in the Fisk-O'Keeffe case today. Colby Sledge has the story in The Tennessean. Lee Rosenbaum comments here.

Prince Suit (UPDATED)

Cityfile reports that photographer Patrick Cariou has filed a lawsuit against artist Richard Prince, Larry Gagosian, Gagosian Gallery, and Rizzoli books "for using a number of his photographs in Prince's 'Canal Zone' exhibition without his consent, pics that Cariou alleges first appeared in his 2000 book, Yes Rasta."

You can read a copy of the complaint at the link. Here is some information regarding the exhibition. Here is Cariou's website. Here is Yes Rasta on amazon.com. Here is an earlier post on Prince.

Greg Allen has some thoughts here. He thinks Prince "almost certainly" will win: "Prince's process means his paintings will almost certainly be declared transformative, not derivative works, and as such, they're fair use, not infringing." I wouldn't be so sure: litigation is always uncertain, and never more so than when it comes to appropriation art. As Judge Leval has said, the law in this area is "astonishingly unpredictable."

UPDATE: Jim Johnson agrees with Allen: "Regardless of what one might make of Prince's work, this seems like a very, very clear no-win case for Cariou."

No Cigar

The close call on the orphan works bill made the Library Journal's Top Ten Stories of 2008. Here's their assessment for 2009:

"With economic and international crises sure to command Congress’ attention in 2009, it’s questionable whether orphan works will rise again anytime soon. Nevertheless, this year’s effort, the result of continuous hard work and some masterful politicking by library groups and their allies, stands as an achievement worth noting, and at the very least establishes a benchmark for continuing efforts."

Related post here.

Have I mentioned how insightful the Art Market Monitor is?

For example.

I'm blushing.

Pop Quiz (UPDATED 2X)

If I told you someone held the following views:

"The art can be the art anywhere. It can be seen anywhere."

"[S]omewhere such as the High or Seattle would be delighted to beef up their American paintings collections, and if/when they do so ..., they'd likely beef up their curatorial focus on such work."

"[N]o, it doesn't matter much to me that the work stay in NYC. The art is more important than the geography."

. . . you'd probably guess that person would be pretty relaxed about the whole idea of deaccessioning, wouldn't get too worked up about things if, say, a painting moves from the National Academy to LACMA, or from the New York Public Library to the Crystal Bridges Museum.

Guess again.

UPDATE: In an update, Tyler accuses me of "intellectual dishonesty" for taking the above quotes "out of context" (even though I included links back to both relevant posts, so people could see their full contexts). But the whole point of my post was that in this debate people say one thing in one context and other, often inconsistent things in another context. It's the same point I've been making (ad nauseum) about sales to fund the purchase of more art vs. sales to fund other worthy purposes. In the first case, people don't bat an eye; in the second case . . . well, you know by now.

UPDATE 2: Tyler has a further update in which he says I don't "understand the specifics of the issues." Of course I'm not suggesting that we "ignore the context." My point is simply that if you say, for example, that it's "chipping away at the institution" to sell work for reasons other than buying more art but it doesn't chip away at the institution to sell work to buy more art, it's not a sufficient response to just insist that "they're different contexts." Similarly, if you say in Context A (i.e., a failed instituion) that "the art can be the art anywhere, it can be seen anywhere," then it's fair to wonder why the same point doesn't apply in Context B (i.e., a sale by a failing, but not yet failed, institution). There may be reasons why a sale is still not justified in Context B, but it takes more than just pointing out that the contexts are different. Or at least that's how it seems to me.

Against Prissy Fatwas

Felix Salmon weighs in on the ongoing deaccession debate. He endorses the "Ellis Rule", i.e., that deaccessioning is fine "provided that you ensure that the institution or individual to whom you sell commits in some binding form to equal or higher conservational standards and equal or higher public access." And he cites the Eakins that made its way from the National Academy to LACMA (mentioned, through tears, here) as an example of "a classic positive-sum bargain which benefits both institutions and the general public."

He also doesn't think much of Tyler Green's "let them fail" approach: "If the National Academy were to adopt Ellis's rule, then the worst-case scenario would effectively be what Green is talking about here: it keeps on selling off its collection to other museums until there's nothing left. On the other hand, if such sales manage to keep the institution alive and thriving, attracting new artists who donate valuable examples of their own work, then we end up at a place which is unambiguously better than closing."

He concludes: "I do hope that this debate makes it out of the blogosphere and into the realm of the Association of Art Museum Directors, whose prissy fatwa on the National Academy is a classic example of rules-based rather than principles-based silliness. With a bit more imagination and a bit less ideological fervor, everybody in the museum world, including the all-important general public, could benefit."

Meanwhile, Richard Lacayo (who I should point out is not in the "let them fail" camp: he concedes that "sometimes a museum must sell something to avoid collapse") offers some thoughts of his own on the Ellis Rule, and continues to stick with the slippery-slope argument: "I continue to believe that a regime that never penalizes emergency deaccessioning would tempt too many museums to treat their collections as part of their revenue stream." Responding to an earlier post of mine wondering "why should we expect museums to abuse the prerogative of emergency deaccessioning when we assume that the same museums will act judiciously when deciding to sell art for the sanctioned purpose of raising funds to buy new art," he points to "the recent examples of the Barnes Foundation, the National Academy Museum and the L. A. Museum of Contemporary Art [which] show that the danger of lax institutional management is more real than the danger of museums selling important work to buy new work, which is something you see a lot less of" (my emphasis). Recognizing that the word "important" may be doing a lot of the work in that sentence, and leaving aside for the moment the point that if you agree with Ellis and Salmon that a sale from Museum A to Museum B is not a bad thing you should have no fear of sliding down that particular slope, I wonder if that's really true as an empirical matter. Do we see a lot more "lax institutional management" (on the scale of the Barnes/National Academy/MOCA) than sales by museums in order to acquire more art? I suspect it may be that, since the latter is uncontroversial, we may not "see" a lot of it, but that doesn't mean it isn't happening.

Fisk Arguments This Week

The Tennessee Court of Appeals will hear oral arguments this week in the Fisk University-O'Keeffe Museum case. The AP has a summary:

"Fisk is appealing the Nashville Chancellor Ellen Hobbs Lyle's decision in March that the school broke the terms of O'Keeffe's donation by not keeping the collection on display and by trying to sell parts of it. But Lyle also ruled the school shouldn't have to forfeit the collection to the New Mexico museum as long as it keeps it on display. Lyle had also rejected a $30 million arrangement for Fisk to share the collection with the Crystal Bridges Museum in Bentonville, Ark."

Meanwhile, BusinessTN has a lengthy story on Fisk's chronic financial struggles:

"By 1977, Fisk's endowment had fallen to about $3 million, and by 1983 --a year best remembered as the one during which the Nashville Gas Co. turned off the heat because of an unpaid balance of $170,000 -- the university's overall debt had climbed to a reported $2.8 million. Narrowly averting a shutdown, Fisk ultimately persevered under the leadership of president Henry Ponder, who began his tenure in July 1984. ... When [current president Hazel] O'Leary arrived on campus in 2004, the university's finances were so tenuous that she didn't know whether she would be able to keep the doors open. ... [S]he discovered the previous administration had raided the endowment for a total of $7.5 million to meet operating shortfalls. At the conclusion of the fiscal year ending June 30, 2004, the university reported an operating deficit of more than $796,000, according to Fisk's IRS tax form 990. By the conclusion of fiscal year 2006-2007, the deficit had climbed to more than $3.8 million."

I guess some would say "let them fail," but personally I'd rather see them share (share for chrissakes!) their collection with Crystal Bridges.

Orphan Works Update

Information Today's "Review of the Year 2008" includes the following:

"Last fall, a bill strongly supported by libraries, The Shawn Bentley Orphan Works Bill of 2008, was passed in the Senate. But the House version had significant differences, and the matter remained unresolved. Congress is expected to take this bill up again in the new session. Library Journal reports: 'If passed, the bill would reduce liability for those who make use of copyrighted works provided they make, and document, a reasonably diligent effort to find the owner.'"

"Admirers sent him food, wine, and money while he was in jail awaiting trial"

Laurie Hurwitz has a story in the current ARTnews on a forthcoming documentary about "the infamous theft of August 21, 1911, when an Italian mason named Vincenzo Peruggia walked out of the Louvre with the Mona Lisa."

Here is Peruggia's Wikipedia enty. Here is a fairly recent piece from Time magazine, which put the theft on their list of the Top 25 crimes of the twentieth century.

A Post That Has Nothing To Do With Deaccessioning

As promised.

Here's a roundup of some of the things we missed over the holiday break:

• The LA Times's Diane Haithman spoke with MOCA's new chief executive, Charles Young, and reported that one of the things he will do is "oversee the museum’s cooperation with the California attorney general’s office, which is looking into the museum's finances following news reports that MOCA had used restricted funds to cover general operating expenses. 'I talked to some of the members of the board about the situation, and it appears that they sought approval of the donors of the restricted gifts to do this before they did it.... I really don’t know enough about the facts to say more than that,' Young said. 'The fact that they are looking into it doesn’t mean any wrong has been done.'"
• A sculpture was stolen from Bernie Madoff's Palm Beach property . . . and then returned, with a note attached: "Bernie the Swindler, Lesson: Return stolen property to rightful owners. Signed by - The Educators."
• Speaking of Madoff, the Art Market Monitor notices Sotheby's CEO Bill Ruprecht telling the Wall Street Journal that he has spoken with “lots” of collectors who invested with Madoff: "I have clients for whom art is the sole liquid asset they own today," he says.
  
• Thirty works, including an etching by Picasso and prints by Matisse and Braque, were stolen from a Berlin gallery. "The police said that the theft was discovered on New Year’s Day, and that it was probably committed by two or more people, given the weight and number of pieces that were stolen."
• Glenn Reynolds calls for federal civil rights legislation to protect photographers' rights (because there are "too many situations" where "idiot security officers violate the law").

Meet Mr. Pareto

One more roundup of deaccessioning posts, and then it's on to other matters (I promise!).

Tyler Green stakes out the position that it's NEVER alright "for arts institutions to sell off art in order to keep the doors open": "If an institution, such as the National Academy or someone else, can't operate effectively enough to stay open, it should close. Then it should disperse its collection to non-profit institutions -- to other museums. This way art collections held in a public trust remain held in a public trust."

I find that a very odd position to take. How can it possibly be worse to disperse part of a museum's collection (usually a very small part) than to disperse the whole collection? Would we really rather see the National Academy -- around since 1825 -- close and its entire, 7,000 work collection sold off than see two of those 7,000 works sold? I just don't see how that makes any sense.

NPR had a piece on this issue today as well. The National Academy's director says there wasn't enough money to pay guards or buy ink cartridges. The director of the Detroit Institute of Arts says cry me a river: selling off art is akin to chipping away at the institution. "The institution is there to safeguard the art. The art is not there to support the institution." Unless, of course, as I keep saying, the selling off is to buy different art. Then it's not chipping away at the institution. The institution, apparently, is not there to safeguard that art. When it comes to buying more art, suddenly the institution doesn't exist to safeguard the existing collection. But as soon as anyone suggests using those proceeds for any other purpose, then that existing collection becomes untouchable. You wouldn't want the institution to be chipped.

UCLA's Mark Kleiman: "when museum directors gang up on one of their number for selling some inventory to dig her institution out of a financial hole, they're acting like a bunch of snobbish jerks."

Michael Sippey is still undecided.

"The current strictures around deaccessioning do not encourage either intelligent, vigilant conservation or wider public access"

A bit more on deaccessioning. I’ve mentioned on more than one occasion a piece from a couple years back by Adrian Ellis, the founder of AEA Consulting. Adrian and I had a number of interesting conversations around that article when it came out, and, prompted by the latest deaccessioning brouhaha – and in particular my recent exchange with Richard Lacayo (see here and here, and, for an earlier exchange last summer, “Rule Utilitarianism in Iowa City” and this response to it) – he sent along the following over weekend (with permission to post it). I think his central point – that as long as you "ensure that the institution or individual to whom you sell commits in some binding form to equal or higher conservational standards and equal or higher public access," there isn't a lot to complain about – is hard to argue with. The fuller version:

"I want to take the opportunity of your testing and probing of the AAMD and AMA stand on the circumstances in which selling works of art is acceptable to regurgitate and develop slightly the argument we discussed a couple of years ago.

"'Act utilitarianism' is a consequentialist theory of ethics that argues that the right action is the one which produces the greatest amount of happiness or pleasure for the greatest number of people. Act utilitarianism is opposed to 'rule utilitarianism', which states that the morally right action is the one that is in accordance with a rule whose general observance would create the most happiness.

"This succinct definition of the two main branches of utilitarianism comes cut and paste from Wikipedia but is no less accurate for that. Act utilitarians require an analysis of each case and a judgment as to actual consequences. Rule utilitarians are nearer to a position of 'Well, what if everyone did that?!'

"The current debate around the slippery slope of deaccessioning, including your exchange with Richard Lacayo, is basically a case study of the debate between act utilitarianism and rule utilitarianism - or in Layco's case a modified rule utilitarianism, as he would, sensibly, have the Barnes sell something from their reserve collection if that were the alternative to the relocation that Judge Ott has sanctioned in Philly. (And it would, as I think you have also observed, also have afforded the judge a route that conformed more closely to the cy-près doctrine than the ruling did.)

"Both your and Lacayo's arguments are based on the premise that deaccessioning and using the proceeds for purposes other than acquiring (or, in the ICOM variant, conserving) art works is probably a bad thing. The question that you are grappling with is therefore whether it is worse than the alternatives (institutional collapse) and whether sanctioning it in one context (e.g. the Barnes or the National Academy) would encourage others in less dire circumstances to pursue (moral hazard).

"I fully subscribe to a consequentialist perspective and I believe that the prime responsibility of those who are tasked with stewardship of works of art are, first, to make sure that they are well looked after and, secondly, to ensure the broadest public access to and enjoyment of them (intellectual as well as physical). Those who own works of art should be judged above all on how they perform these two tasks. This is especially true of public and nonprofit institutions that own them. But I don't think property rights are absolute: these responsibilities accrue to private individuals and corporations owning works of art too, albeit to a lesser extent.

"That said, the current strictures around deaccessioning do not encourage either intelligent, vigilant conservation or wider public access because the perspective that informs them is one gained by looking through the wrong end of the telescope - it focuses on the institution and not the work of art. Suppose that the rule were radically altered to: you can deaccession and spend the money on whatever you want - a new roof, working capital, education programs, or even a boffo night out with your chums on the board -- provided that you ensure that the institution or individual to whom you sell commits in some binding form to equal or higher conservational standards and equal or higher public access.

"These qualifications vis a vis stewardship and access clearly represent something less than a free market, but they represent a market of some sort, and one in which museums are not the only players - anyone can enter the fray. If some feckless institutions fritter away their assets, so be it - those assets will be better looked after and more often seen that they would in the fritterer hangs onto them, probably out of public sight and below acceptable conservational standards. And those institutions that are in straightened circumstances not of their own making could make a judicious decision about deaccessioning without the current radio-active hyper-politicized stigma surrounding them.

"It may be that such a circumscribed market would in effect be so illiquid as to be of little help. But I suspect this is not the case - that there are still enough cash rich institutions (or boards) around to make it reasonably liquid. Maybe the AAMD could be the market maker or at least the regulator.

"I think this is more than an intellectual conceit. There is no single capital market in the museum sector and in periods of rapid demographic and financial change, such as those we are experiencing, there are institutions that are in a dire, and mission-crimping, state but that have non capitalized assets in their collection (but not on their balance sheet) that would need only incremental adjustment to allow them to reinvigorate themselves and regain a relevance and verve without which their continued genteel decline is almost guaranteed.

"At least worth an airing ...

"Happy New Year."

Where were we?

Right. Deaccessioning.

The blog will be back in gear tomorrow, but, to kick off the New Year, here's a terrific post by Michael O'Hare, the Cal-Berkeley professor who was quoted in the New York Times article I discussed before the break. You really should read the whole thing, but a few tastes:

"I defy any reader of this [anti-deaccessionist] discourse to infer a goal behind the assertions and pronouncing that could be stated in public with a straight face. My best try: 'the purpose of art is to be in a museum as soon as possible and to stay in that museum forever', with the important corollary 'in a museum does not mean "on display" or accessible to the public!', and museum practice should be evaluated insofar as it serves that end."

"Museums are to put art before people so there is the most, best, engagement between the public and the art. Of course a museum should have a backstock .... But having stuff, other things being equal, especially having more undisplayed work when you already have a lot, does nothing for the goal I stated. And keeping stuff in your basement that has vanishingly small probability of ever being shown in your museum ... is not just ineffective but retrograde. The sale proceeds could pay for lighting, lectures, scholarship, labels, cleaning the toilets, conservation, longer hours, lower admission price, (do I need to go on?) ... yes, or more building with more wall to hang more of your pictures on, and every one of these is a complement to engagement with art. Not an optional feature, or a marketing trick, or something-nice-to-have-if-its-cheap; a complement" (my emphasis).

"Mindless hoarding of whatever art it happens to have, by any particular museum, is irresponsible trusteeship of a patrimony whose purpose is to be seen and appreciated, not to be possessed. Elevating this hoarding, and refusal to think about how resources can be used, to a moral/ethical professional principle is worse, not only nuts but hostile to everything that really matters about art."