"The largest sale of works from its collection in a half century"

Steven Litt: "The Cleveland museum's sale -- the end result of a process known as 'deaccessioning,' barely raised an eyebrow in the art world."

This is as predicted. As long as a museum announces that the sales proceeds will be used (someday) to buy more art, you might get some mild criticism from one lonely member of the deaccession police. But you won't get lectures about raiding the public trust . . . or worries about disincentives to giving . . . or politicians railing against massive transfers of art into private hands. Nothing to see here. Move along.

Linkage

• "Instead of creating a teachable moment, everyone stoked the controversy."
• The life of the courtroom artist.
• Legal help for emerging artists.
• Should the charitable deduction be eliminated?

"Here's hoping that the Kennaugh-Amadio's website works its magic and lures this major masterpiece back into the light."

Greg Allen on the art-historical significance of the Pebble Beach Pollock.

Will estate tax changes discourage charitable bequests?

The Art Newspaper's Martha Lufkin examines the question.

Tell me again about the "public trust" (New York Times edition)

The New York Times notices that hey, maybe museums don't hold their works in trust for the public after all. They can -- and do -- sell them all the time.

The story begins by cataloging a bunch of recent sales:

"On Thursday at Sotheby’s in New York, the Cleveland Museum of Art is putting 32 old-master paintings up for auction, and the J. Paul Getty Museum is offering 15. In the meantime the Pennsylvania Museum of Fine Arts and the Carnegie Museum of Art are selling five paintings each, and the Art Institute of Chicago is selling two Picassos, a Matisse and a Braque at Christie’s in London. Last week the New Jersey Historical Society sold 17 items at Christie’s in New York."

It then trots out a number of museum directors to tell us it's No Big Deal.

David Franklin, the director of the Cleveland Museum, says deaccessioning is "a normal act," and to be "encouraged."

Met director Thomas Campbell says "deaccessioning is a healthy part of the management of any museum collection."

MoMA director Glen Lowry says theirs is "an evolving collection."

We end with another quote from Cleveland's Franklin, who says deaccessioning is "kind of a Humane Society. ... Maybe some of these works can be loved by someone else."

Hmmm. It feels like something is missing from the story, however.

Where are the quotes from representatives of the AAMD informing us that once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations.

Where are the worries that somebody will say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow? (In fact, we are told that MoMA will "refus[e] any gift that prohibits a possible future sale"!)

Why don't we hear from Assemblyman Brodsky and his concerns about a "massive transfer of art held in the public trust into private hands"?

It's all very strange.

Look, either works are held by museums in the public trust, or they're not.

Sales will either cause donors not to give any more, or they won't.

But you can't say, in one breath, that sales are normal, healthy, etc. (when the proceeds are used to buy art) and then, in the next breath, scream that sales of the very same works are unethical, repulsive, Stalinist (when the proceeds are used for any other purpose).

If it's okay (or more than okay: healthy, normal, to be encouraged) for the Art Institute of Chicago to sell those Picassos, Matisses, and Braques in order to buy yet more art, then it's got be okay to sell the same works for other worthy purposes, right? Right?

"Don’t let these treasures become assets to a bank trying to recoup its losses on an unpaid debt."

Paddy Johnson notes that the Jersey City Museum remains closed. She puts out a call for "Jersey City’s Eli Broad," a "wealthy benefactor out there willing to donate $600,000 to save an entire institution."

That sure would be nice. But, failing that, where else might they come up with $600,000?

Hmmm. I just can't think of anything. I guess a "collection that not only contains art works by some of the city’s leading contemporary artists, but works dating back more than a century" will have to remain shuttered (or, possibly, as Paddy points out, used to pay the museum's debts).

If only there were some way to keep from closing.

File Under "It's Only Wrong When Brandeis Does It"

The New York Times had a story this morning on how, with "government subsidies ... falling and corporate donations ... dwindl[ing] as the economic crisis spreads," European museums are "seek[ing] new revenue sources."

That includes the following:

"Museums are also raising money by sending masterworks on global tours. World-class institutions like the Louvre and the Metropolitan Museum in New York used to swap paintings at no cost but now charge fees and prospect more aggressively for alliances with foreign museums. Some French institutions have sent out traveling exhibitions, essentially renting entire shows to eager regional museums in the United States and Asia .... The Pompidou Center, which earned $1.9 million from traveling exhibitions last year, hopes to double that in 2012. The Musée d’Orsay sent Impressionist works on a three-year tour to San Francisco, Madrid and Nashville (where the tour is now), a trip it expects to yield more than $13 million."

So can we please have a stop to the hand-wringing about the Rose Museum's plans to do this? Is that too much to ask?

I also got a chuckle out of this:

"'There is a risk,' [the director of the French research institution Option Culture] said, 'that one day state authorities will say to museums, We are cutting your subsidies because you can rent your artworks or you can even can sell your artworks' to raise additional revenue."

In other words: we can't exploit this legitimate source of revenue, because then people will stop giving us more money. You sometimes see similar arguments against deaccessioning in the US: we can't let museums sell work because then rich people will cut back on their giving. You can't make this stuff up.

"Tell them I’m not a bad guy. I’m awful sorry if I caused them any trouble."

The FT's John Gapper has a terrific story on serial forger Mark Landis (mentioned earlier here):

"Landis was clearly disturbed but he was also intelligent and funny, and his story – although bizarre – was plaintively human. By his own account, he had spent nigh on three decades forging and donating paintings as a tribute to his parents. It had become his life’s work and he did not want to stop."

He starts to sound more like an outsider artist than a "forger." How long before a gallery snatches him up?

"That’s one step below attempted murder."

A Chicago artist faces up to 15 years in prison -- for recording his arrest for selling art without a permit. The New York Times story is here. Howard Wasserman says the problem with laws like that "is that they allow government to eliminate the check on misconduct that comes from the public being able to watch/listen to Big Brother and use the recording to document and help prove misconduct." Mark Kleiman says "what seems to be missing here is prosecutorial discretion."

The Gallery Strikes Back

The New York Times reports that the San Francisco gallery that was on the receiving end of a cease-and-desist letter from Jeff Koons for producing and selling “Balloon Dog” bookends has brought a declaratory judgment lawsuit: "'As virtually any clown can attest, no one owns the idea of making a balloon dog, and the shape created by twisting a balloon into a dog-like form is part of the public domain,' the gallery says in its federal complaint. 'Any similarities between the Balloon Dog Bookend compared with the Balloon Dog Structure are driven by the wholly unprotectable idea of depicting the shape of a balloon dog in a solid form.'"

Ed Winkleman has news of another, similar lawsuit.

Linkage (questions edition)

• Should art museums dabble in variable-rate demand bonds and interest-rate swaps?
• Who owns balloon dogs?
• What happened to the missing Mystic Lamb panel?
• Should dead people have publicity rights?

New Issue of Journal of Art Crime

The Fall 2010 issue of ARCA's Journal of Art Crime is out. I wrote about the latest (legislative) developments regarding Von Saher v. Norton Simon Museum. An excerpt:

"But here, the Ninth Circuit, on hazy 'foreign affairs powers' grounds, essentially ruled that it was improper for the legislature to have singled out Nazi-looted art cases for special treatment. The legislature’s response, with AB 2765, was to pass a statute treating all stolen art claims (at least against certain classes of defendants) the same. I fail to see any great injustice in that."

"There is also a ... Girolamo di Benvenuto Nativity that was once (1966) considered important enough to rate a museum publication."

Another museum sale that will not cause somebody to say, "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"

Don't be so touchy. Collections aren't meant to be static.

"Simply irrational"

Cristina del Rivero reacts to the BBC article I mentioned earlier in the week:

"The fear among the 'anti-deaccessioning police' that without a blanket prohibition against deaccessioning museums will sell-off vast amounts of their collections is simply irrational. There is absolutely no reason why oversight, transparency and certain, limited restrictions cannot ensure that deaccessioning is carried out ethically and with the best interests of the collection, the museum and the public in mind."

Park West Update

The Art Market Monitor is monitoring Park West Galleries' "roster of lawsuits."

"A BBC Freedom of Information request found the British Museum had spent £86,280 in 2009 and 2010 keeping 99% of its collection in storage."

They're holding them in trust.

"Thus, the adversaries — the multinational corporation and the street artist — become business partners. Long live capitalism!"

The LA Times editorial board on the Fairey-AP settlement.

"In other words, to bankroll today's curatorial spending sprees, PAFA sold historic works ..."

". . . that its own curators had previously valued enough to include in special exhibitions (and probably also in the museum's permanent-collection displays)."

From Lee Rosenbaum, the only member of the deaccession police who takes the notion of the public trust seriously.

Tell me again about the "public trust" (a continuing series)

The Cleveland Museum of Art is selling "more than two dozen European old master paintings in the largest sell-off from its collection in more than a half-century."

Sergio Muñoz Sarmiento predicts that "the anti-deaccessioning police will be all over this," but I tend to doubt it. As long as the museum claims (as Cleveland does here) that the sales proceeds will be used to buy more art, they will remain quiet.

They will forget that once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations.

They won't worry that potential donors will say, "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"

No, they won't say a word. But sell those same two dozen works -- or even any one of them -- and use the proceeds to, say, keep from going bankrupt, and you're looking at front page stories in the New York Times, non-stop hand wringing from the usual hand-wringers, calls for sanctions, calls for legislation, and on and on.

"Reading between the lines of the announcement, the settlement appears to be a near-complete win for the AP and its lawyers at Kirkland & Ellis."

More on the AP-Fairey settlement, from the Alison Frankel of The American Lawyer: "Under the terms of the deal, Fairey has agreed not to use another AP photo without obtaining a license, and to share rights with the AP going forward to merchandise bearing the Hope image. Fairey also agreed to 'additional financial terms that will remain confidential.'"

Apparently, what remains of the case are the AP's claims against a clothing company that licensed the image from Fairey. Those claims are set to go to trial in March.

"In his letter, Mr. Bain argues that Mr. Bronson holds copyright in the work owned by the National Gallery ..."

". . . and, as such, 'has the exclusive right to display the work.'"

The Toronto Globe and Mail reports that "Canadian artist AA Bronson has brought a lawyer into his dispute with the National Portrait Gallery in Washington, D.C. over the gallery’s refusal to return to Canada one of his works currently in a controversial exhibition there." (This has to do with the Smithsonian "Hide/Seek" dispute. I mentioned Bronson's removal request here.)

Is it possible he's asserting a Costco claim?

Everybody Needs a Hobby (UPDATED)

The NYT's Randy Kennedy has a great story today about a guy who's been going around donating fake works to museums:

"Unlike most forgers, he does not seem to be in it for the money, but for a kind of satisfaction at seeing his works accepted as authentic. He takes nothing more in return for them than an occasional lunch or a few tchotchkes from the gift shop. He turns down tax write-off forms, and it’s unclear whether he has broken any laws. But his activities have nonetheless cost museums, which have had to pay for analysis of the works, for research to figure out if more of his fakes are hiding in their collections and for legal advice."

At the moment, he seems to have disappeared:

"Robert K. Wittman, a former F.B.I. agent who ran the agency’s art-crime team, said that he has been working informally on behalf of several museums Mr. Landis visited to gather more information about his actions, with the aim of determining whether a legal case could be built against him for theft of goods and services. But Mr. Wittman has been unable to find him."

The last word is given to the director of the Hilliard University Art Museum: "I really doubt that there’s going to be any will or funding to pursue action against him, which is kind of sad. That’s just the reality. So our job now is to make sure that every museum out there knows what he looks like and what he’s up to."

UPDATE: Derek Fincham liked the story too, and says "the lesson is clear": "we can certainly blame the forger/donor, but provenance and the history of an object must be checked, even when an object is donated."

"In return, the city agreed to stand behind the museum’s debt."

The NYT's Kate Taylor reports that the Asian Art Museum of San Francisco "has been saved from likely bankruptcy." The San Francisco Chronicle says the deal "makes the city liable for the museum's nearly $100 million in debt."

Should we worry about moral hazard?

"These ludicrous creatures have strong claim to being the most ridiculous asset class in the world, ..."

". . . no one should ever invest in them, and they invariably fail."

Felix Salmon is not a fan of art funds.

"Some critics regard this type of art as purely criminal vandalism."

The LA Times on Taschen's "Trespass: A History of Uncommissioned Urban Art."

"It was unclear how a dismissal of claims between Fairey and the AP would affect legal fair use arguments" (UPDATED)

Breaking news in the Shepard Fairey-AP lawsuit. Hard to tell from the news reports exactly what's going on, but seems that at least some of the claims are being settled.

UPDATE: More from Randy Kennedy in the New York Times, the LA Times, NPR, and the Wall Street Journal.

Tell me again about the "public trust" (a continuing series)

Judith Dobrzynski has news of two more museums selling work, including the planned sale by the Art Institute of Chicago of a Braque, two Picassos, and a Matisse at Christie's next month. The combined high estimates come to about $15.5 million.

Here are two things we know about those five works:

1. Having fallen under the aegis of a museum, they were held in the public trust, to be accessible to present and future generations . . . or at least until February. After that: not so much. Sorry present and future generations! Don't be so touchy about it.

2. Their sale will certainly NOT send a terrible message to potential donors. Nobody will say: "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"

It's almost as if this whole "public trust" business is a bunch of b.s.

As if on cue . . .

The Philadelphia Inquirer's Stephan Salisbury reports this morning that the Pennsylvania Academy of the Fine Arts has sold five works and plans to sell five more.

The five already sold are: Autumn Still Life by William Merritt Chase; Looking Over Frenchman's Bay at Green Mountain (1896) by Childe Hassam; Flowers (1893) by John H. Twachtman; Bathers in a Cove (1916) by Maurice Prendergast; and Great White Herons (1933) by Frank Weston Benson.

Hey, wait a minute! Weren't we just told that this is a terrible message to potential donors. Why wouldn't somebody say, "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"

Besides, separate and apart from any impact on future donations, those works were held in the public trust, to be accessible to present and future generations. How DARE the museum sell them? It's an outrage, I tell you.

Or is it?

Janet Landay, executive director of the AAMD, says: "It's a normal part of building a collection. It shouldn't be such a touchy subject."

Yes, stop being so touchy. It's totally normal for museums to sell work. Who said anything about sending negative messages to potential donors?

Who ever said the works were held in the public trust to be accessible to present and future generations?

Where did you ever get such crazy ideas? Selling work is a totally normal non-touchy thing to do. Why is that so difficult for you to understand, Mr. Touchy?

David Brigham, president and chief executive of the Pennsylvania Academy, goes so far as to say "it's a positive story." "Collections aren't static," he said. "They aren't meant to be static."

No, they're not.

"It does no good to conserve an individual object if you put it back into the very environment that caused it to deteriorate in the first place."

NPR has a story on the recent deaccessioning at the Philadelphia History Museum. The New York Times ran a similar story last month.

I always love this move: "Russell Lewis, chief historian at the Chicago History Museum, says his institution tries to avoid deaccessioning because of the message it can send to potential donors. ... 'Why wouldn't somebody say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?'"

But, on the strict anti-deaccessionist view, what guarantee does anyone ever have that work they donated won't be sold? Museums sell work constantly, and use the proceeds to buy more art. Why wouldn't somebody say, "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"

Somehow sales to buy more art, no matter how routine, don't seem to discourage future donations. Sales for any other reason, however, send potential donors running for the hills.

Thanks to Mark Gold for the pointer.

I wonder what a large ad hoc committee would have looked like

Judith Dobrzynski reports that the promised small ad hoc committee of museum leaders has been established by the New York Board of Regents to help it produce an updated set of deaccessioning regulations. There are 16 members.

"Except for the super wealthy, the tax benefits of giving through an estate plan have been wiped out."

Forbes: New Estate Tax Law Could Hurt Charity. (For more on the new estate tax law, see here.)

Linkage

• Chris Marinello on who buys stolen art.
• Interview with art title insurer ARIS.
• Law School for Visual Artists.
  

"The group is hanging its admittedly slim hopes on a court challenge that West Chester Attorney Samuel Stretton said he would file within a week."

The Friends of the Barnes fight on:

"Stretton said he will ask that the original case be reopened, arguing that then-State Attorney General and now-Federal Judge Michael Fisher was too supportive of the coalition of individuals and groups that pressed for the Barnes to be moved to Philadelphia.

"As Attorney General, it was Fisher's job to represent the interests of the state's citizens, not one side or the other in the dispute, Stretton said.

"Stretton said he questioned Fisher's actions after seeing him interviewed in the 2009 documentary, The Art of the Steal, which offered a critical view of the machinations that ultimately led to the planned move of the Barnes.

"It is not the first time the Attorney General's role in the case has been challenged.

"In 2004, Montgomery County Orphans' Court Judge Stanley Ott issued a blistering critique of the Attorney General's position, making same point as Stretton.

"In response to Ott's criticism, Sean Connolly, spokesman for the Attorney General's Office, agreed that 'the attorney general represents the public, not one side or another in charitable matters.'

"'In this case,' he said, 'we supported the petition because, in our view, it was in the best interest of the public.'

"Despite his unhappiness with the Attorney General's office, Ott ultimately approved the plan to move the Barnes, which would not seem to bode well for Stretton's attempt to raise the issue now.

"In his ruling, Ott acknowledged that Barnes' will stipulated that his collection never be moved, but determined nonetheless that the Barnes Foundation was in financial trouble and the move to Philadelphia was in the best interest of the collection."

Estate Tax Changes

Welcome back, and Happy New Year everybody! To kick things off, I thought I'd share an advisory we sent to our clients regarding the tax legislation passed by Congress just before the holidays:

The just-enacted Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the “Act”) favorably addresses uncertainties lingering in our federal estate, gift and generation-skipping transfer tax regimes since 2001. Absent Congressional intervention, the Act expires at the end of 2012. In the interim, however, the Act may produce planning opportunities for certain individuals.

Here is a summary of the most significant changes to the federal gift, estate and generation-skipping taxes for 2011 and 2012:

• The rate for the estate, gift and generation skipping transfer taxes is 35%.
• The estate and gift tax regimes are “reunified,” with a combined tax-free allowance of $5 million ($10 million for a married couple). This means that there will be an increase from $1 million to $5 million in the tax-free amount for lifetime gifts. This will create enhanced planning opportunities in states such as New York which have no gift tax.
• The Act affords “portability” of a deceased spouse’s unused tax-free amount to the surviving spouse. If a spouse does not use some or all of his or her tax-free amount of $5 million, the surviving spouse may use the remainder, ensuring that $10 million per couple will be exempt from the unified gift and estate tax during the period covered by the Act.
• The generation-skipping transfer tax exemption is also set at $5 million.
• The $5 million tax-free amounts will be indexed for inflation after 2011.

The Tax Act resolves uncertainties in the federal gift, estate and generation-skipping tax regimes in effect in 2010 as follows:

• The estate tax for 2010 decedents is restored, with a tax-free amount of $5 million and a 35% tax rate. Importantly, however, 2010 estates may elect out of the estate tax regime entirely and into an income tax regime of modified “carryover” basis.
• The generation-skipping transfer tax administrative rules are applicable to 2010 generation-skipping transfers, but no GST tax is payable on 2010 transfers.
• The lifetime gift tax exemption remains $1 million in 2010, with a 35% tax rate for gifts in excess of that amount.

Lastly, for those concerned about changes to the law for grantor retained annuity trusts (“GRATs”), we can report that the Tax Act left this valuable estate planning strategy unscathed.

"The film is essentially a vigorous defense of private property rights against Philadelphia’s government."

"Argott has unwittingly made a libertarian documentary."

"Despite several weeks of accusations, counterclaims and deepening investigations . . ."

". . . the mystery at the core of the case of Picasso and the electrician seems no closer to being solved."

"Police said the burglars must have known they’d be on film because they also stole a video recorder attached to surveillance cameras."

Major art theft from a West Village apartment.

"A motion to dismiss should be denied if it is properly pled that these aren't Ansel Adams negatives . . ."

". . . But that's the only issue, and the fact that the case law apparently led the court to think that anything else mattered is evidence that our trademark and right of publicity doctrines have lost all connection to common sense."

Rebecca Tushnet on the recent district court decision in the Ansel Adams case.

Better to poach the non-malicious clients

Art dealer Edward Tyler Nahem is suing ex-gallery director Lance Goldsmith, "alleging the former staffer stole trade secrets and mailing lists and conducted 'malicious' client poaching." Lindsay Pollock has the details.

$1.4 million

That's how much the University of Alabama says it has spent so far in its lawsuit against artist Daniel Moore.

Madrid Theft Update

ARCA has an exclusive. (Background here.)

"Among those extended provisions are several incentives for charitable giving"

The Nonprofit Lawprof Blog has the details.

A Smithsonian Footnote (UPDATED)

I haven't written about the Smithsonian controversy because it isn't really a legal dispute, but here's a small legal angle: last week artist AA Bronson asked the museum to remove his work from the show in protest. They refused. Today he follows up with an email saying:

"My lawyer suggests that, according to my moral rights under copyright law in both Canada and the U.S.A., I have the right to withdraw my work from ‘Hide/Seek.'"

I don't know anything about Canadian moral rights law (or why it would apply to an exhibition in Washington), but under U.S. law, the obvious stumbling block is VARA's "public presentation" exception ("The modification of a work of visual art which is the result of ... the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification" under the statute).

UPDATE: Sergio agrees: "We’re not sure about the Canadian moral rights law, but it does not seem to us that under the 1990 Visual Artists Rights Act the NPG would be violating Bronson’s moral rights simply by exhibiting the work within a context and/or exhibition that Bronson did not like or approve of. If this were the case, artists could dictate–and ironically–censor the speech of individuals whom they did not identify with ideologically. Interesting move though."

"Now Mr. Norsigian argues in his countersuit that the trust slandered him and engaged in a civil conspiracy."

The latest in the Ansel Adams litigation.

Prepare the fainting couches

A museum is doing a show of work belonging to one of its trustees.

"Details of the proposed settlement are sketchy."

Artist David Ascalon's VARA suit appears to have settled.

Further Frazetta Fighting

"Frank Frazetta Jr.'s action, filed against his three siblings Wednesday in Fort Myers, is just the latest legal blow landed in a dispute that once saw him use a back hoe to break into his father's museum in northeastern Pennsylvania and attempt to steal 90 paintings."

I posted about the back hoe incident here.

Linkage (falling way behind edition)

• Controversy over removed mural.
• Motion to dismiss denied in Ansel Adams case.
• Held in the public trust.
  

John Richardson on Picasso's Electrician

At VanityFair.com:

"Picasso was exceedingly generous with his work, but he never gave away anything from earlier periods, always from whatever he was working on at the time and available in the studio. Also, when he gave someone a drawing or a print, he always signed and also inscribed it. Of the 271 works said to be in Le Guennec’s cache, reportedly only one of them bears the artist’s signature, and none of them is inscribed."

Also:

"The Le Guennec affair puts me in mind of the large collection of works, mostly on paper and mostly executed at the end of the artist’s life, belonging to the heir of his driver, Maurice Bresnu, which appeared on the market in the 1990s. Bresnu (nicknamed 'Nounours') and his wife endeared themselves to the Picassos. At first mistakenly thought to have been fakes and, later, to have been stolen—only a fraction had been inscribed—they were ultimately O.K.’d by the Picasso administration and put up for sale at Christie’s (November 19, 1998). It will be interesting to see how the Picasso administration, not to mention the French judiciary, reacts in this new, far graver case."

It's really not so slippery

One further thought prompted by the story earlier this week about deaccessioning at the Philadelphia History Museum. As I mentioned, one museum director is quoted as making the usual slippery slope argument against deaccessioning: "if we go down this road, we end up paying our gas, electric and water bills — classic operations costs — with deaccessioning proceeds."

Can I make a suggestion?

If you're worried about paying your gas, electric, and water bills with deaccessioning proceeds ... don't pay your gas, electric, and water bills with deaccessioning proceeds. That is, we can easily have a rule that says you can use deaccessioning proceeds to pay for educational programs or building renovations or major capital projects or any number of things, but at the same time say (if we want to) that you can't use deaccessioning proceeds to pay for gas, electric, and water bills.

Problem solved. The slope really isn't that slippery. You just have to plow the roads now and then.

In fact, that's pretty close to the situation we have now. Works can be (and quite frequently are) sold for one purpose -- to raise acquisition funds -- and no one goes around worrying that, if we go down this road, we'll end up paying our gas, electric and water bills with deaccessioning proceeds. People understand that you don't have to slide down the slope. You can just stop. There's no reason we couldn't add other acceptable reasons (like, for example, keeping from having to close your doors) to the list.

Signs

Another case of art vs. signs that are not art. A previous example here.

"We’re a history museum, not an art museum. It’s a picture of a fish."

The New York Times had another front page story on deaccessioning today -- this time involving the Philadelphia History Museum, which has "quietly" sold more than 2,000 objects "over the last several years," to help raise money for a big renovation of its 1826 building.

You get the usual staking out of positions. The director of the Institute of Museum Ethics at Seton Hall University says: "Museums really cannot continue to accumulate and accumulate and accumulate ad infinitum. What does one do with former acquisitions policies that did not make sense, or not having an acquisitions policy, or having so many objects they can’t care for or don’t really fit within their purpose?" While, on the other side, the director of another local museum says it "rapidly" (rapidly!) becomes a slippery slope: "if we go down this road, we end up paying our gas, electric and water bills — classic operations costs — with deaccessioning proceeds."

I would just note that the Deaccession Police have no way of distinguishing this case from sales by the National Academy or the Rose or any other art museum. If museums hold their collections in "the public trust" (albeit a trust museums feel themselves completely free to invade any time they want to use the proceeds to buy more work -- but leave that aside for the moment), then it's every bit as wrong for this museum to sell its cigar store Indians as it is for the Rose to sell its Warhol. They have no theory to distinguish the one case from the other. But if they allow that these particular sales aren't so bad, then the whole argument for the repulsiveness of deaccessioning falls apart. We might have to start trusting the people who run our museums to make the hard choices and do what's best for their institutions, all things considered. A shocking thought, I know, but I think they just might be up to it.

"James Biear preyed upon an elderly man and robbed him of artwork it took him a lifetime to collect."

There was a conviction in the case of the chauffeur charged with stealing from his employer, a grandson of Joseph Pulitzer. The U.S. Attorney's press release is here. News coverage here and here.

Court Orders Seven Sculptures Returned to Calder Estate

"The works, which include a variety of mobiles and stabiles made between 1941 and 1970, are worth about $6.25 million, according to Alexander S. C. Rower, a grandson of the artist and president of the Calder Foundation."

"Picasso kept copious notes and diaries of his life and yet nowhere is M Le Guennec mentioned as a friend."

"And yet he gives him not one, not two, but 271 works of art. Does this sound likely? We have to wait for the police to finish their inquiry, but what can I say: I think not."

More on the collection of 271 works a retired electrician claims were given to him by Picasso.

Call for Applications

The Association for Research into Crimes against Art (ARCA) is now accepting applications for its MA Program in the Study of Art Crime and Cultural Heritage Protection. Applications are due Jan. 3, so get on it. For more details, see here.

Minor Appeal

Halsey Minor is appealing the summary judgment ruling in favor of Sotheby's in their breach of contract action against him. You can read the appellate brief here. I discussed the lower court ruling here. Further background here and here.

"There's an absolute privilege made for statements made in discharge of an official duty. It's pretty clear."

"A judge has thrown out a defamation lawsuit filed by two Pebble Beach men whom deputies accused of faking a multimillion-dollar art heist last year."

The county's lawyer says he will next go after them for attorney's fees.

For background, see here and here.

"The saga of Fisk University's art collection goes on."

Fisk is appealing the latest ruling in the litigation concerning the Stieglitz Collection. Jennifer Brooks has the story in the Nashville Tennessean. The New York Times is here. (As an aside, the Times story states, as a fact, almost in passing, that the Collection was "given to [Fisk] as a public trust by the artist Georgia O’Keeffe." What does that even mean? How do you give something "as a public trust"? Doesn't that assume an answer to a central issue in the case?)

You will recall that Judge Lyle allowed the Crystal Bridges deal to go through, but ruled that Fisk could keep only $10 million of the $30 million in sales proceeds. The other $20 million had to go to an endowment fund dedicated to support of the Collection. Fisk President Hazel O'Leary says the annual cost of maintaining the Collection is $130,000 and, if you assume $1 million in income from the $20 million endowment, that's $870,000 that could be used "for educational purposes, to attract high quality scholars and researchers to the faculty, to provide scholarships to [students], or to maintain the many historic buildings which require constant repairs on our campus."

The school adds that in 2008 they spent about $1 million to upgrade the gallery that houses the works and that Crystal Bridges's Alice Walton "has contractually agreed ... to establish a million dollar endowment" to care for the Collection. (The sharing agreement, in and of itself, also provides Crystal Bridges with great incentive to make sure the works are properly cared for.)

The Tennessee AG's office says bring it on ("We welcome the opportunity to urge the court of appeals to fashion a solution … that will fulfill the donor's intent and keep the Stieglitz Collection in Nashville and available to Fisk students full-time"), which points up the risk Fisk is taking in filing the appeal. They could lose the $10 million and end up with nothing.

And We're Back

Lots of art law happened while I was away, including the theft of 28 works (including a Picasso) from a parked truck outside a Madrid warehouse.

Good analysis from Noah Charney here (including that "the necessary a priori knowledge required of this crime suggests that it was particularly well-organized").

Further thoughts from Mark Durney.

PSA

I'm taking my talents to South Beach this afternoon (I can't believe I actually got to use that line on the blog!), where I will be part of this panel tomorrow, so blogging will be light (or non-existent) through the weekend. Hopefully, British museums won't sell off thousands of works while I'm gone. (There's nothing stopping them from doing so, you know.)

"Most of the people in the art world, and the museum world, regard the de-accessioning of possessions from museums and galleries with horror."

"But it’s a horror that has no real base to it."

British art critic Brian Sewell is not a member of the Deaccession Police.

Picasso's alarm installer

Another really interesting story from over the weekend: a 71-year old retired electrician seems to have ended up with nearly 300 works by Picasso. He claims they were a gift from the artist. The Picasso estate has filed a lawsuit in France, claiming the works were stolen.

The New York Times story is here.

Tyler Cowen headlined his post: How willing are you to believe another human being?

The Village Voice went with: Pablo Picasso's Electrician Was Either Very Lucky or Very Sneaky.

New York magazine says: "maybe Picasso just really, really valued his electrician?"

Tom Flynn: "how many Picasso drawings does it take to change a light bulb?" (Nice one!)

And lawprof Jonathan Turley sizes up the legal claims:

"The man worked for Picasso in the 1970s and this could create a fascinating contest over credibility if [he] has no written record. The absence of any prior disclosure certainly makes the claim somewhat suspicious. Such cases can become the ultimate jury question — with members looking at the practices of the artist. It is quite common for many artists to give away their works, even as payment for services. This number of paintings, however, would represent a lot of work or a lot of friendship. . . . Picasso died a few years later and was already an international superstar in the art field. This was not some starving painter trading paintings for baguettes. Moreover, it is hard to see how much of a friendship could have developed over the course of the installation of a security system. Of course, there is always the possibility that Picasso was simply eccentric and a bit daffy in his final years. Anyway it goes, it should make for an interesting tort or criminal case or both."

"The basic principle of museums in exceptional circumstances liquidating their collections is a principle that we have embraced since 2007 ..."

". . . and the world hasn’t come to an end."

Lots to catch up on after the holiday weekend -- most interesting, from my point of view, this article in The Art Newspaper. The lede is that "leading international museum directors" have "restated their opposition" to sales from public collections "when the proceeds are used for 'anything other than acquisitions or the direct care of the collection.'" But the really interesting news is further down:

1. First, we learn that "the UK Museums Association (MA) has relaxed its ethical stance from a hard-line presumption against disposal to one that accepts that works of art might be sacrificed for the greater good of a collection. 'The basic principle of museums in exceptional circumstances liquidating their collections is a principle that we have embraced since 2007,' said Maurice Davies, the MA’s head of policy, 'and the world hasn’t come to an end.'"

This strikes me as enormously important, for at least two reasons.

One, the anti-deaccessionists in the U.S. have turned the debate into a moral crusade. The idea that "works of art might be sacrificed for the greater good of a collection" is not just mistaken, it's repulsive. Stalinist. An egregious violation of public trust.

But are we really willing to say the UK Museums Association is repulsive?

Or might it be the case that this is a difficult issue and reasonable people (or reasonable museum associations) might have different views as to what is or isn't appropriate?

In other words: can we take it down a notch, please?

The other reason it's important is that the anti-deaccessionists are always telling us that, if we allow sales in exceptional circumstances, the sky will fall. Letting one museum sell off one or two paintings paves the way for dozens of museums to sell off thousands of artworks, perhaps routinely. If we let even one go, even to keep a museum from closing its doors, there will be nothing left. They'll sell them all.

But here we have a natural experiment: the UK has allowed operating expense deaccessioning since 2007, and what's the verdict?

"The world hasn’t come to an end." Thousands of artworks haven't been sold off. There are still one or two left.

It's worth keeping an eye on.

2. The other thing worth mentioning is that one of the proposals floating around out there is "to create an expert panel that would review proposed deaccessions." Judith Dobrzynski made a similar proposal not too long ago.

"The fate of the museum's permanent collection ... remains unclear."

The Wall Street Journal reports that the end is near for the Chelsea Art Museum.

"The ability of San Francisco’s Asian Art Museum to avoid bankruptcy may be decided this week"

The WSJ's "Bankruptcy Beat" has the details. The artwork appears to be safe:

"San Francisco owns the ... collection of more than 17,000 pieces of art .... As a result, such assets would be exempted from a bankruptcy filing by the museum foundation. The museum foundation owns minor assets as well as $70 million in endowment money."

Yale and Peru reach tentative settlement

But not for the first time.

Donor Friendly

More on how New York's version of UPMIFA is more donor-favorable than most other states':

"In most enactments of UPMIFA, all existing donor-restricted endowments become subject to the new requirements enabling spending below [historic dollar value]. This is not the case under NYPMIFA. Each organization is required by the law to give notice to prior donors giving them the option of applying the new law. Once the donor has responded, or the donor’s right to respond has lapsed (after 90 days), the organization will need to maintain records of which endowments follow the new law, which have HDV restrictions under the old law, and which have specific donor restrictions. The notice to donors must follow specific requirements set out in the law."

Related posts here and here.

Esmerian Arrested

Ralph Esmerian, Chairman Emeritus of the American Folk Art Museum, charged with fraud.

Background here.

"It really is about ... helping artists and musicians who are contributing to society find health care at affordable rates."

Bloomberg Businessweek on an event at which artists could barter their work in exchange for medical care.

These stories always leave out one important detail.

Small and ad hoc

The New York Board of Regents is establishing "a small ad hoc committee of leaders of museums" to help produce a set of deaccessioning regulations "compatible with the accepted ethical and legal standards of the national accrediting organizations."

Those accepted ethical standards were summarized here by the NYT -- under "the code of ethics of the American Association of Museums, the proceeds should be 'used only for the acquisition, preservation, protection or care of collections,'" while the "code of the Association of Art Museum Directors is even stricter, specifying that funds should not be used 'for purposes other than acquisitions of works of art for the collection'" -- and, as I've said before, it seems to me the current Board of Regents regulations are already fully "compatible" with those standards. But let's see what the small ad hoc committee comes up with.

"All of the works on view are unattributed and unsigned."

Interesting sounding show at MCA Denver: Orphan Paintings: Unauthenticated Art of the Russian Avant-Garde:

"Orphan Paintings explores questions about the status of art. What is an authentic art experience? What precisely are we appreciating when we look at a work of art? Are we appreciating what is visible to us, or is it a range of invisible factors, such as the belief that it was made by a master artist or the opinion of experts about its authenticity? This collection of unauthenticated Russian avant-garde paintings asks: can an art experience be authentic even if the status of the work of art remains questionable? Are there other forms of authenticity aside from its attribution to an artist?"

Thanks to a loyal Art Law Blog reader for the tip.

In the public trust

In the midst of a post on the announcement of the opening date of the Crystal Bridges Museum, Lee Rosenbaum mentions that one of the works in its collection used to belong to the Corcoran:

"The D.C. museum had included it in several special exhibitions (scroll down)---most recently in its 2004-2005 show of 'The Human Form in American Art'---before deeming it expendable."

But that must be a misprint. After all, it's a very core principle that museums hold their works in trust for our community. You know, once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations. Everyone knows that.

So I'm sure it's all just a big misunderstanding and Lee will be running another major correction in the coming days.

"The proposal would essentially eliminate the charitable tax deduction."

"In its place, all donations made by federal taxpayers would qualify for a 15-percent tax credit. But instead of that credit going to the taxpayer, it would be given to the charity receiving the donation in the form of a matching grant from the Internal Revenue Service."

Gives new meaning to the phrase "photographic memory"

Artist and NYU professor Wafaa Bilal is having a camera surgically implanted in the back of his head for several months for an art project. Kate Taylor's NYT story is here. More from the WSJ's Erica Orden here. Jonathan Turley notes a legal issue that has arisen: "Does he need the consent of students in class who will be captured by his head camera? As a result of objections, Bilal has agreed to cover the camera with a black lens cap while on university property."

It's not Bilal's first campus controversy.

Linkage

• Sculpture impounded.
• Duped dealer buys back fake.
• Another review of "Stealing the Mystic Lamb."

"After much fretting over the loss of three art collections to the dispersal effect of the art market last week . . ."

". . . Los Angeles is now celebrating the endowment-enhancing power of the self-same art market."

"A picture is emerging of one of the most bizarre cases of deception in art history."

The Guardian explains.

"If the Met and Brooklyn had nothing to hide, they shouldn't have hidden it."

Lee Rosenbaum issues "a major correction" regarding the transfer of the Brooklyn Museum's costume collection to the Met a couple of years ago. I wrote about the deal here. (See also here.)

Perhaps it wasn't what it initially seemed, but so long as any sales proceeds aren't used for operating expenses, it shouldn't be controversial under the Standard View on deaccessioning.

From my point of view, it's just another example of how the hypocrisy built into that Standard View -- sales to buy more art, totally fine; sales for any other reason, repulsive -- leads people to do a lot of funny things.

NOW the Warhol litigation is done with Joe Simon (UPDATED)

The New York Law Journal reports (but I can't find a free link at the moment) that the Warhol Foundation antitrust litigation is over. The plaintiffs drop their claims against the Foundation, and the Foundation drops its counterclaims and request for sanctions. Background here.

UPDATE: Businessweek: Warhol Foundation Wins Lawsuit With $7 Million Defense.

Admission fees for the Smithsonian?

The NYT's Kate Taylor reports that the Simpson-Bowles deficit reduction proposal includes a recommendation that the Smithsonian begin charging admission fees. More here from DCist.

Matthew Yglesias says it's "a great example of a kind of pennywise and pound-foolish thinking about spending that often afflicts the political system":

"What you would ideally do with these kind of public services—be it a museum or a subway or whatever—is take a good hard look at whether or not you really believe in providing the service. And if you do, you provide it for free so that as many people as possible can benefit."

"Tax uncertainty could hurt charitable giving"

USA Today reports. One of the issues is "the uncertain outlook for the estate tax." The article notes that "a 2004 study by the Congressional Budget Office estimated that permanent repeal of the estate tax would reduce donations to charity by up to 12%."

Linkage

• A Basquiat painting on loan to the the Musée d'Art Moderne in Paris was defaced with a felt-tip pen.
• Who owns photos distributed via Twitter?
• Today was National Philanthropy Day.
• Dennis Hopper's estate is suing his widow, "accusing her of stealing $1.5 million in art from Hopper in the months before his death."
• The arts and section 501(c)(3).
  

More on Art Title Insurance

The NYT's Kate Taylor reports that the publicly-traded Argo Group (total assets: $6.7 billion) has bought art title insurer ARIS.

The Art Market Monitor says the move "legitimize[s]" art title insurance.

I remain a skeptic.

Dealer Ed Winkleman's "first response was to agree with the dealers who noted that it seemed a bit unnecessary," but news reports of a recently-discovered forgery ring have him rethinking that view. I'm pretty sure, however, that ARIS doesn't cover forgery claims. See here.

"This is not an art gallery; this is completely illegal."

Twenty people have been arrested for visiting the Underbelly Project.

"Let me say this clearly for the record: the Board of Trustees is fully committed to President O'Leary's leadership of Fisk University."

In response to calls for her ouster, the President of Fisk's board of trustees released a statement defending her record:

"For those upset by the fact that Fisk runs an almost $2 million annual budget deficit, he pointed out that the deficit has improved — it topped $10 million in 2006. He also noted that the school's debt has dropped by $1.4 million.

"For those who criticize O'Leary's fundraising skills — she has raised $26 million for the university in six years — he said the $4.3 million she raises each year is better than the national average for historically black colleges."

"Charities Wrestle With Tax Uncertainty"

The NYT's David Cay Johnston reports.

The Debt Panel and Charities

"With tax reform as one of the five basic recommendations made, and no apparent sacred cows, it is not surprising that the current tax benefits enjoyed by charities are among the many targeted tax provisions. Here is how the three proposed tax reform options would affect those benefits."

"Wealthy households were more sensitive to the effects of tax policies on their giving, the report said."

Charitable giving down 35% in 2009.

"One of the most bizarre incidents in the history of art theft"

Noah Charney tells the tale.

A deaccessioning, of sorts

"A group of high-profile Fisk alumni are calling for the university’s embattled president, Hazel O’Leary, to resign."

"If the greater good would provide more dollars for a better library or to help in other ways, you have to look at that."

There's a $5 million Childe Hassam in a library in Erie, Pennsylvania.

Would it be repulsive to consider selling it?

Costco-Omega Oral Argument

The Supreme Court heard oral arguments yesterday in Costco v. Omega, a hugely important first sale doctrine case. Courthouse News Service has a summary. More here. Background here.

"That’s the problem when you chase your tail trying to ascertain a dead donor’s intent."

The Charity Governance Blog's Jack Siegel is not impressed with Judge Lyle's latest ruling in the Fisk case: "[T]he reader sees a judge’s heavy hand at work unsupported by the law or facts. Toto has pulled the curtain back and we see that the Wizard of Oz is just a mere mortal." He calls the decision "a compromise that achieves less than nothing. She should have just made the hard choice. Give Fisk the money or give the collection to the Frist Center." And though the decision notes that "the case is in its last phase," he "suspect[s] the appeals court will take a new approach, resulting in a remand with instructions and an entirely new round of proceedings."

Cristina del Rivero isn't a fan of the decision either: "The problem of donor intent is a recurring theme in this kind of litigation but this week's ruling apportioning actual percentages between the donor's intended beneficiaries is pure guess work."

More on the Rivers Controversy

Vanity Fair has a long article on the controversy involving the films Larry Rivers made of his adolesencent daughters in the 1970s. Kate Taylor wrote about it in the New York Times this summer.

One of the daughters wants the films turned over to her: "Emma declares her father guilty of nothing less than child pornography." The Rivers Foundation is refusing: ["They say] the film must be preserved, both as source material for a large Rivers painting of 1981, which incorporates still images from the movie, and as art in itself."

The article also notes that Emma has given a copy of the material "to an assistant Manhattan district attorney, Emily Logue. According to Emma, Logue has viewed it with alarm and is considering confiscating all copies as obscene material. (Logue would not comment on what the D.A.’s office considers an open investigation.)"

"The Court adopts none of the proposals outright. Instead, the Court orders a different plan." (UPDATED)

Judge Lyle issues what Lee Rosenbaum calls her "latest astonishing" ruling in the Fisk case: she will let the Crystal Bridges deal go through, but Fisk can keep only $10 million of the sales proceeds. The other $20 million has to go into an endowment fund outside of Fisk's control, to ensure that, even if Fisk were to someday close, the collection could remain (partially) in Nashville. The ruling is here. Robin Pogrebin's New York Times story is here. The Nashville Tennessean story -- "Fisk art ruling upsets both sides" -- is here.

Why the 10/20 split? Because "allocating Fisk $30 million from the sale ... is out of proportion to the role Ms. O'Keeffe designed for Fisk." I'm not sure what that means. Was the "role" O'Keeffe "designed" for Fisk equal to one-third of the, um, total "roles" involved in the gift? Or that helping Fisk was (exactly) half as important to O'Keeffe (as measured by the old intent-o-meter) as making sure the work never left Nashville? It seems a little arbitrary to me.

Lee calls it a "lose-lose decision" and calls on the AAMD to punish Crystal Bridges (because collection sharing among museums is, of course, verboten). She also refers to "some additional Walton largesse [that] may be in offing" -- i.e., an agreement to fund a $1 million endowment to care for the collection -- but I believe that was always part of the deal. See, e.g., this 2007 NYT article noting that Walton "also pledged $1 million to renovate and maintain the Fisk gallery that houses the collection and to finance an art internship."

UPDATE: Derek Fincham weighs in:

"I just do not see the injustice [in the Crystal Bridges transaction]. A financially troubled and storied institution, whom O'Keeffe wanted to support decades ago, can receive a much-needed benefit with the partial sale of works of art that can be better preserved and seen by a wider audience."

Easy, Cowboy (UPDATED)

Sergio Muñoz Sarmiento flags news that "a photographer has sued Texas alleging a cowboy image on millions of vehicle inspection stickers is being used without his permission." The first hurdle, of course, is sovereign immunity.

UPDATE: My friend, and copyright guru, Bob Clarida emails the following:

"Donn, you’re right about sovereign immunity – if the state chooses to assert the defense. Not very good optics, though, and the state might well decide to settle quietly rather than claim it is above the law that applies to everybody else. Especially at a time when ‘elitism’ has such a bad name, and the state taking someone’s property would play into a very visceral narrative. That’s why you don't see too many flagrant abuses like university labs selling patented drugs, etc. I think it's largely because it just looks bad. There are circumstances, though, like some of the libraries digitizing their books in connection with the Google project, in which the stakes might be high enough to make it worth a little bad citizenship."

"The initial stories were all saying that museums could start selling and use their art for operating expenses. That is not true at all."

The Maine Antique Digest has a story on the expiration of the "emergency" deaccessioning regulations in New York. You have to slog through lots of sky-is-falling spin, until, finally, in the next to last paragraph, there is this, from Clifford Siegfried, deputy chancellor at the board of regents:

"[Much of what has been written is] just absolutely wrong. The initial stories were all saying that museums could start selling and use their art for operating expenses. That is not true at all. What happened was that the emergency regulations which we had for two years are no longer in effect. But all they did was try to clarify some of the rationale, the reasons, for deaccessioning. The prohibition of deaccessioning for using funds for operating expenses is still in place. That didn't change" (emphasis added).

As I've said before, that is exactly right. There is no ambiguity about this.

"The exhibition has been mounted, illegally, in a long-abandoned subway station"

The New York Times on the Underbelly Project.

More on the Copyright Principles Project

Terry Hart looks at the subset of recommendations in the Copyright Principles Project report (mentioned earlier here) that "call for an increased role for the US Copyright Office within copyright law."