The Friends of the Barnes kindly provide a link to the brief the Barnes Foundation filed last week seeking to dismiss the most recent action challenging the move. They really hammer the Friends on the standing issue, and honestly it's hard to imagine the case surviving past this round.
This portion of the brief also caught my eye:
"[The claims that the Attorney General 'forfeited his neutrality'] reveal a misunderstanding of the ... Attorney General's role in this case. . . . The Attorney General must look out for the interests of the Commonwealth's citizens as a whole, balancing the needs of various constituencies as he determines what would be best for the public charity at issue. His job is not to remain neutral, but instead to advocate the result he concludes is best. Here, he concluded that the relief sought in The Foundation's 2002 Petition was in the best interests of The Foundation and the public it serves. He reached that conclusion only after what Attorney General Pappert described as numerous meetings with the parties involved and a review of thousands of relevant documents. Before agreeing to support The Foundation's request for relief, Attorney General Fisher sought and obtained amendments to The Foundation's petition that would satisfy his demands. Then he and his successors publicly announced support for the requested relief in an answer to The Foundation's amended petition and in other public statements, including Attorney General Pappert's statement in open court during the hearing" (emphasis added, citations to the record omitted).
I made a similar point here:
"I've never understood this notion that it was somehow wrong for the AG to push for the move. Once he decided that, all things considered, that was the best outcome, what was he supposed to do? When Lee Rosenbaum calls, for example, for 'Super Cooper' to block the Fisk deal, isn't she calling on him to take a side in the dispute? Does his having done so open the court's decision up to challenge on the ground that the attorney general favored one side in the dispute over the other? The Friends petition accuses the AG of 'forfeit[ing] his neutrality,', but, if he has, then hasn't Super Cooper done so as well? It's just a fundamental misunderstanding of the attorney general's role."
Thursday, May 05, 2011
Wednesday, May 04, 2011
Plesner Prevails (UPDATED)
Paul Schmelzer, who's been doing a great job following the story, has the details.
UPDATE: Plesner reacts: "I am absolutely overwhelmed with joy, and I cried when I heard the great news."
UPDATE: Plesner reacts: "I am absolutely overwhelmed with joy, and I cried when I heard the great news."
Tuesday, May 03, 2011
They're just making sure people's wallets aren't stolen, right?
The New York Times has a story today on Righthaven, whose business model is suing bloggers and others who use material from newspapers without permission. They've filed more than 200 copyright lawsuits over the last year: "Typically, the suits have been filed without warning. Righthaven rarely sends out notices telling Web sites to take down material that does not belong to them before seeking damages and demanding forfeiture of the Web domain name."
Monday, May 02, 2011
Tattoo You (UPDATED)
Here's an interesting one: the tattoo artist who did Mike Tyson's distinctive facial tattoo "has sued Warner Bros. over the similar-looking facial art on Ed Helms' character in the upcoming comedy 'The Hangover: Part II.'"
Lawprofs Kal Raustiala and Chris Sprigman discuss the case over at the Freakonomics blog. They point out, first, that as "works of graphic art," tattoos are subject to copyright, and add that, as attached to Tyson himself, there is probably an "'implied license' between Tyson and [tattoo artist] Whitmill that Tyson will appear on camera now and again, and therefore so would the tattoo." But the problem here is that, in the new movie (as opposed to the first Hangover), the tattoo appears on Ed Helms's face (not Tyson's). The "bottom line," they say, "is that Whitmill’s claim is not frivolous, and he may well get a big payday from the studio just to make him go away."
UPDATE: George Wallace gets off a good line.
Lawprofs Kal Raustiala and Chris Sprigman discuss the case over at the Freakonomics blog. They point out, first, that as "works of graphic art," tattoos are subject to copyright, and add that, as attached to Tyson himself, there is probably an "'implied license' between Tyson and [tattoo artist] Whitmill that Tyson will appear on camera now and again, and therefore so would the tattoo." But the problem here is that, in the new movie (as opposed to the first Hangover), the tattoo appears on Ed Helms's face (not Tyson's). The "bottom line," they say, "is that Whitmill’s claim is not frivolous, and he may well get a big payday from the studio just to make him go away."
UPDATE: George Wallace gets off a good line.
More on a Copyright is not a Wallet (UPDATED)
A couple of interesting responses to my question before the weekend about copyright and theft.
First, Sergio Muñoz Sarmiento has an entertaining post that, I think, boils down to the claim that "property law and intellectual property law [aren't] synonymous," which was precisely the point of my hypothetical (or one of them). He says, in considering a case of possible copyright infringement, "we use intellectual property law (with the term intellectual being key, meaning that it is, unlike real property, intangible), and thus, we apply copyright’s 'fair use' schema and its four non-exclusive factors." That's quite right, and there is no analogous schema when it comes to personal property: we don't ask whether taking someone's wallet was educational, or a parody, etc.
Michael Rushton responds too, focusing on the incentives to the appropriator: "Here's the policy problem: if I could take someone's wallet and they would still have their wallet, then I could quit my day job. Why bother going to work to earn money to put in my wallet if I can just spend my day as a pick-pocket, and do so with a clear conscience, since my marks haven't really lost anything - they still have their wallets (and now I do too)." But he adds that "it is not an all-or-nothing problem, since some appropriation, some fair use, increases creators' abilities to make new and interesting work. The optimal fair use provisions establish a balance between maintaining incentives for new work and for the ability to build upon existing work."
I think both Sergio and Michael are exactly right to stress the idea that what's required in the copyright context is a balancing of interests. So it doesn't seem helpful to me to just scream "BUT THAT'S MY WALLET." The question we're trying to answer in the copyright context is when is it okay for me to take your wallet, and when it's not.
UPDATE: More from Colberg.
First, Sergio Muñoz Sarmiento has an entertaining post that, I think, boils down to the claim that "property law and intellectual property law [aren't] synonymous," which was precisely the point of my hypothetical (or one of them). He says, in considering a case of possible copyright infringement, "we use intellectual property law (with the term intellectual being key, meaning that it is, unlike real property, intangible), and thus, we apply copyright’s 'fair use' schema and its four non-exclusive factors." That's quite right, and there is no analogous schema when it comes to personal property: we don't ask whether taking someone's wallet was educational, or a parody, etc.
Michael Rushton responds too, focusing on the incentives to the appropriator: "Here's the policy problem: if I could take someone's wallet and they would still have their wallet, then I could quit my day job. Why bother going to work to earn money to put in my wallet if I can just spend my day as a pick-pocket, and do so with a clear conscience, since my marks haven't really lost anything - they still have their wallets (and now I do too)." But he adds that "it is not an all-or-nothing problem, since some appropriation, some fair use, increases creators' abilities to make new and interesting work. The optimal fair use provisions establish a balance between maintaining incentives for new work and for the ability to build upon existing work."
I think both Sergio and Michael are exactly right to stress the idea that what's required in the copyright context is a balancing of interests. So it doesn't seem helpful to me to just scream "BUT THAT'S MY WALLET." The question we're trying to answer in the copyright context is when is it okay for me to take your wallet, and when it's not.
UPDATE: More from Colberg.
Friday, April 29, 2011
"Why is stealing a wallet not appropriation art?"
Joerg Colberg issues a challenge to the art world.
Without taking a position on any particular example of appropriation, let me answer his question with a question:
What if, after I took your wallet, you still had your wallet?
Would it change your view at all? Would you still call it theft?
Without taking a position on any particular example of appropriation, let me answer his question with a question:
What if, after I took your wallet, you still had your wallet?
Would it change your view at all? Would you still call it theft?
Concepcion Sentenced
My friend Jo Laird, who represents one of the victims, emails that dealer Giuseppe Concepcion was sentenced yesterday to 51 months in federal prison for selling fake art: "Judge McMahon made clear that she intended the sentence to be severe both because she found Concepcion's actions to be 'despicable' and because she wanted to send a signal about this type of crime, which she described as a reprehensible betrayal of trust."
Wednesday, April 27, 2011
On the Maine Mural Removal
I'm a little late getting to this story, but a federal judge ruled last week that it was not a First Amendment violation for the Governor of Maine to order the removal of a mural from a state Labor Department office:
"Elected state leaders ... have the right to decide what to say and what not to say, and by extension during their term in office, they are authorized to decide what the state of Maine says or does not say about itself. State of Maine Governor Paul LePage’s removal of a mural from the walls of a state office because he disagreed with its contents may strike some as state censorship; instead, it is a constitutionally permissible exercise of gubernatorial authority. Though his action provoked a storm of constitutionally-protected speech with a stark division between those who applauded his decision as rebalancing the state of Maine’s message to the business community and those who condemned his action as muzzling opposing viewpoints, the resolution of this vigorous debate must not rest with judicial authority of a federal court. It must rest instead with the ultimate authority of the people of the state of Maine to choose their leaders....
"It is not the business of the federal court to decide what messages the elected leaders of the state of Maine should send about the policies of the state, to tell a prior administration that its own artwork is too slanted to continue to hang on state office walls, to tell the current administration that it must not remove or replace a prior administration’s artwork, or to tell a future administration which piece of state art, the new or the old, must stay or go. The messages from the state-owned works of art are government speech and Maine’s political leaders, who are ultimately responsible to the electorate, are entitled to select the views they want to express."
Lawprof Eugene Volokh says that "sounds quite right." News story here. A question from Sergio Muñoz Sarmiento here.
"Elected state leaders ... have the right to decide what to say and what not to say, and by extension during their term in office, they are authorized to decide what the state of Maine says or does not say about itself. State of Maine Governor Paul LePage’s removal of a mural from the walls of a state office because he disagreed with its contents may strike some as state censorship; instead, it is a constitutionally permissible exercise of gubernatorial authority. Though his action provoked a storm of constitutionally-protected speech with a stark division between those who applauded his decision as rebalancing the state of Maine’s message to the business community and those who condemned his action as muzzling opposing viewpoints, the resolution of this vigorous debate must not rest with judicial authority of a federal court. It must rest instead with the ultimate authority of the people of the state of Maine to choose their leaders....
"It is not the business of the federal court to decide what messages the elected leaders of the state of Maine should send about the policies of the state, to tell a prior administration that its own artwork is too slanted to continue to hang on state office walls, to tell the current administration that it must not remove or replace a prior administration’s artwork, or to tell a future administration which piece of state art, the new or the old, must stay or go. The messages from the state-owned works of art are government speech and Maine’s political leaders, who are ultimately responsible to the electorate, are entitled to select the views they want to express."
Lawprof Eugene Volokh says that "sounds quite right." News story here. A question from Sergio Muñoz Sarmiento here.
Tuesday, April 26, 2011
"The News Media’s Misrepresentation of the Art Criminal"
A four-part series, from ARCA alum Katherine Ogden.
Monday, April 25, 2011
Sunday, April 24, 2011
"I didn’t speak up when they came for the appropriationists…"
Artist Brian Dupont on the Richard Prince decision. [via]
Friday, April 22, 2011
"There is little question that what constitutes fair use is still in the eye of the beholder after this decision."
Nicholas O'Donnell and Mitchell Stein of Sullivan & Worcester on the Richard Prince decision:
"What is clear after Cariou, however, is that artists, museums and galleries involved in any appropriative art are in a more precarious position than ever before. ... [T]he potential for a chilling effect on such works is clear; the threat of damages of this sort may simply steer artists away from creating, and museums and galleries away from showing, anything close to the edge. Would a gallery with the chance to exhibit the newly-created still lives and collages of Picasso showing Le Journal, or a museum with the chance to show the contemporary work of Duchamp and its appropriation of the Western canon, have taken the chance if privy to this decision?"
"What is clear after Cariou, however, is that artists, museums and galleries involved in any appropriative art are in a more precarious position than ever before. ... [T]he potential for a chilling effect on such works is clear; the threat of damages of this sort may simply steer artists away from creating, and museums and galleries away from showing, anything close to the edge. Would a gallery with the chance to exhibit the newly-created still lives and collages of Picasso showing Le Journal, or a museum with the chance to show the contemporary work of Duchamp and its appropriation of the Western canon, have taken the chance if privy to this decision?"
Thursday, April 21, 2011
Fisk Appeal
The Tennessean's Jennifer Brooks has the latest on the appellate proceedings in the Fisk-O'Keeffe case. Fisk filed its appellate brief on April 7. The Tennessee Attorney General -- non-neutral Super Cooper -- has until May 9 to file a response, and then Fisk has until May 23 for its reply. Brooks says the initial brief argues that "the $20 million endowment [ordered by Judge Lyle] would generate $1 million a year, when it costs Fisk [only] $130,000 annually to care for the 110-piece collection."
Rehearing En Banc Denied for Chapman Kelley (UPDATED 2X)
See here. Background here.
UPDATE: The Art Newspaper's Martha Lufkin has more, including that Kelley plans to appeal to the Supreme Court.
UPDATE 2: The Council for Artists' Rights John Viramontes is not happy.
UPDATE: The Art Newspaper's Martha Lufkin has more, including that Kelley plans to appeal to the Supreme Court.
UPDATE 2: The Council for Artists' Rights John Viramontes is not happy.
Wednesday, April 20, 2011
"It will be a substantial cut, depending on the size of the organization."
The Washington Post: "A number of Washington arts organizations are reeling because Congress cut the National Capital Arts and Cultural Affairs program by $7 million from $9.5 million in the last agreement for fiscal 2011."
"Mr. Wildenstein ... is enmeshed in at least a half-dozen lawsuits"
On the front page of today's New York Times: Venerable Art Dealer Is Enmeshed in Lawsuits.
The Art Market Monitor says "the issue is that Wildenstein has acted as more than an art dealer for many clients. They stored art in the Wildenstein vaults and trusted to Guy to administer their affairs."
The Art Market Monitor says "the issue is that Wildenstein has acted as more than an art dealer for many clients. They stored art in the Wildenstein vaults and trusted to Guy to administer their affairs."
Tuesday, April 19, 2011
Sunday, April 17, 2011
"Much of the money from that sale has been put toward a new $11.9 million reserve fund, one that the academy can turn to when operating income falls short of covering its $4.6 million budget."
The New York Times has a story on how the National Academy Museum is slowly coming back to life after being sanctioned by the AAMD for selling a couple of works three years ago.
The story explains that the sale "was controversial" because museums "are viewed" as "public trusts" since they "function as sanctuaries" for "cultural and historical artifacts."
No attempt is made, however, to reconcile that "view" with these others, also expressed in the Times, just a few months ago:
The story explains that the sale "was controversial" because museums "are viewed" as "public trusts" since they "function as sanctuaries" for "cultural and historical artifacts."
No attempt is made, however, to reconcile that "view" with these others, also expressed in the Times, just a few months ago:
- Deaccessioning is "a normal act," and to be "encouraged."
- "Deaccessioning is a healthy part of the management of any museum collection."
- Deaccessioning is "kind of a Humane Society. ... Maybe some of these works can be loved by someone else."
Tuesday, April 12, 2011
"The Village of Greenwood Lake has agreed to repeal a six-month ban on public displays of art that prompted a local artist to sue the village on First Amendment grounds."
"The repeal was a condition of a settlement between the village and ... Warwick resident Melanie Gold, who filed a lawsuit in U.S. District Court in February."
Monday, April 11, 2011
Moving the Barnes from Merion to Philadelphia is socialism or something
Michael Smerconish: "The relocation of the Barnes will be the single greatest cultural enhancement to Philadelphia during our lifetimes," but it's still wrong.
Friday, April 08, 2011
"Probably they can’t stop it, they won’t be able to stop it. And then in years to come people will get used to it."
Robert Redford on the Barnes move.
But will they ever get used to moving a work from a stairwell to its own room? It's impossible to predict.
But will they ever get used to moving a work from a stairwell to its own room? It's impossible to predict.
Thursday, April 07, 2011
Wednesday, April 06, 2011
Gallery Sued
Courthouse News Service reports that artist Dana Melamed has sued Priska C. Juschka Fine Art. She claims they owe her more than $68,000 from works sold, they gave discounts without her permission, and are refusing to return works worth $400,000. She also asks for $1 million in punitive damages.
Paddy Johnson says "certainly, $1 million in punitive damages seems excessive. Then again, so does under-representing the amount a work sold for and still failing to pay the amount owed."
Paddy Johnson says "certainly, $1 million in punitive damages seems excessive. Then again, so does under-representing the amount a work sold for and still failing to pay the amount owed."
Another Warhol Authentication Suit
Josh Baer reports that "Addison Thompson has sued the Andy Warhol Foundation and Authentication Board and Museum alleging, 'fraudulent concealment and violations of the Sherman and Donnelly Acts arising from defendants engaging in a conspiracy to monopolize the market for the authentication, offering and sale of artwork by Andy Warhol.'" Presumably, it's about this. Says Josh: "Having seen the Joe Simon case results this one probably won't go Thompson's way either."
Tuesday, April 05, 2011
More on the Gauguin Attack
The Gauguin attacked at the National Gallery last week "sustained no damage."
The attacker also explained why she attacked the painting: "I feel that Gauguin is evil. He has nudity and is bad for the children. He has two women in the painting and it’s very homosexual. I was trying to remove it. I think it should be burned. I am from the American CIA and I have a radio in my head. I am going to kill you."
The attacker also explained why she attacked the painting: "I feel that Gauguin is evil. He has nudity and is bad for the children. He has two women in the painting and it’s very homosexual. I was trying to remove it. I think it should be burned. I am from the American CIA and I have a radio in my head. I am going to kill you."
Monday, April 04, 2011
"Screaming 'This is evil,' a woman tried to pull Gauguin’s 'Two Tahitian Women' from a gallery wall Friday"
A painting is attacked at the National Gallery.
Get Artelligent
One more reminder about this interesting-sounding event: Understanding Art as an Asset.
The Richard Prince Deposition Book
Or, by its full title: Canal Zone Richard Prince YES RASTA: Selected Court Documents from Cariou v. Prince et al, including Excerpts from The Videotaped Deposition of Richard Prince, The Affidavit of Richard Prince, Competing Memoranda of Law in Support of Summary Judgment, Exhibits Pertaining to Paintings and Collages of Richard Prince and the Use of Reproductions of Patrick Cariou's YES RASTA Photographs Therein, and The Summary Ass Whooping Dealt to Richard Prince by the Hon. Judge Deborah A. Batts, as compiled by Greg Allen for greg.org in March 2011.
You can order your copy here.
You can order your copy here.
Saturday, April 02, 2011
Friday, April 01, 2011
Important New AAMD Policy on Deaccessioning
The AAMD announced a major change to its deaccessioning policy today. From now on, sales on Mondays, Wednesdays, and Fridays are prohibited; sales on Tuesdays and Thursdays are allowed.
A spokesman for the AAMD said it was important to prevent sales on Mondays, Wednesdays, and Fridays because 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.
He added that, if such sales are allowed, somebody 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 just a very, very, very, very, very, very core principle that museums conserve their works in trust for the community.
When asked why the same considerations don't apply to sales on Tuesdays and Thursdays, the spokesman said, "Those sales are different."
When asked how they are different, the spokesman replied, "Shut up. How would you like to be sanctioned?"
For more on this breaking story, see here.
A spokesman for the AAMD said it was important to prevent sales on Mondays, Wednesdays, and Fridays because 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.
He added that, if such sales are allowed, somebody 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 just a very, very, very, very, very, very core principle that museums conserve their works in trust for the community.
When asked why the same considerations don't apply to sales on Tuesdays and Thursdays, the spokesman said, "Those sales are different."
When asked how they are different, the spokesman replied, "Shut up. How would you like to be sanctioned?"
For more on this breaking story, see here.
Wednesday, March 30, 2011
Barnes News
The hearing in the Barnes case yesterday seems like it was a non-event: the Judge set a briefing schedule; the Barnes and the Attorney General have until mid-April, then the Friends have until the beginning of May to respond. Stephan Salisbury has a report in the Philadelphia Inquirer.
He also reports that yet another petition opposing the move was filed this week, this one by Richard Ralph Feudale, a lawyer and the author of Barnes Rune 2012 (Decoding the Mysteries of Pennsylvania's Barnes Foundation, A Special American Place).
Salisbury also has this quote from someone from the attorney general's office:
"He argued that his office, charged with protecting the public interest in regard to nonprofit charitable organizations, was not a neutral observer. 'We determine the public interest,' he said. 'We're an advocate. In this case, we advocated along with the Barnes Foundation [for the move], because we thought it was the best way . . . to maintain the Barnes.'"
I think that's exactly right. I've never understood this notion that it was somehow wrong for the AG to push for the move. Once he decided that, all things considered, that was the best outcome, what was he supposed to do? When Lee Rosenbaum calls, for example, for "Super Cooper" to block the Fisk deal, isn't she calling on him to take a side in the dispute? Does his having done so open the court's decision up to challenge on the ground that the attorney general favored one side in the dispute over the other? The Friends petition accuses the AG of "forfeit[ing] his neutrality" (e.g., paragraph 22), but, if he has, then hasn't Super Cooper done so as well? It's just a fundamental misunderstanding of the attorney general's role.
He also reports that yet another petition opposing the move was filed this week, this one by Richard Ralph Feudale, a lawyer and the author of Barnes Rune 2012 (Decoding the Mysteries of Pennsylvania's Barnes Foundation, A Special American Place).
Salisbury also has this quote from someone from the attorney general's office:
"He argued that his office, charged with protecting the public interest in regard to nonprofit charitable organizations, was not a neutral observer. 'We determine the public interest,' he said. 'We're an advocate. In this case, we advocated along with the Barnes Foundation [for the move], because we thought it was the best way . . . to maintain the Barnes.'"
I think that's exactly right. I've never understood this notion that it was somehow wrong for the AG to push for the move. Once he decided that, all things considered, that was the best outcome, what was he supposed to do? When Lee Rosenbaum calls, for example, for "Super Cooper" to block the Fisk deal, isn't she calling on him to take a side in the dispute? Does his having done so open the court's decision up to challenge on the ground that the attorney general favored one side in the dispute over the other? The Friends petition accuses the AG of "forfeit[ing] his neutrality" (e.g., paragraph 22), but, if he has, then hasn't Super Cooper done so as well? It's just a fundamental misunderstanding of the attorney general's role.
"We thought it fell under fair use."
Forbes.com reports that, in order to distinguish synthetic DNA from its natural counterpart in an experiment they were doing, geneticist J. Craig Venter’s team coded several famous quotes into the synthetic version, including James Joyce’s: “To live, to err, to fall, to triumph, to recreate life out of life.” But, "after announcing their work, Venter explained, his team received a cease and desist letter from Joyce’s estate, saying that he’d used the Irish writer’s work without permission."
As James Grimmelmann notes in the first comment here, "you would think the Joyce estate had learned nothing from Shloss v. Joyce" (about which see here).
As James Grimmelmann notes in the first comment here, "you would think the Joyce estate had learned nothing from Shloss v. Joyce" (about which see here).
"I thought I better recover the photograph before he goes underground, destroys it, or tries to sell it to someone who is not going to return it."
An important Czech photo, stolen from a Prague museum earlier this month, is found.
Saturday, March 26, 2011
Barnes Update (UPDATED 2X)
The Philadelphia Inquirer's Stephan Salisbury reports that the Barnes Foundation and the Pennsylvania Attorney General have filed their responses to the Friends of the Barnes's latest attempt to reopen the case opposing the move: "In [the latest] petition, the Friends of the Barnes asked Judge Stanley R. Ott, who has presided over the case since 2002, to take another look, based largely on quotes from the 2009 documentary movie The Art of the Steal. The Barnes and the attorney general argue in their responses that there is nothing new in the opponents' legal briefs or the movie, and that the Friends of the Barnes and its members cannot intervene in the case anyway because they have no legal standing."
UPDATE: The Main Line Times has more, including that the Barnes and the AG have asked for their attorney's fees. I'm not surprised.
UPDATE 2: LA Times art critic (and Art of the Steal talking head) Christopher Knight discovers a "surprise" in the motion: one of the five Philadelphia Inquirer stories cited in support of the proposition that the information in the petition is "not new" is from 2005, five months after the court ruled that the collection could be moved. That's true, but it's worth noting that there was a second petition filed in 2007 (by some of the same parties who've brought this third suit), which the court dismissed three years ago. So the 2005 article is "not new" in the sense that it preceded that second lawsuit.
UPDATE: The Main Line Times has more, including that the Barnes and the AG have asked for their attorney's fees. I'm not surprised.
UPDATE 2: LA Times art critic (and Art of the Steal talking head) Christopher Knight discovers a "surprise" in the motion: one of the five Philadelphia Inquirer stories cited in support of the proposition that the information in the petition is "not new" is from 2005, five months after the court ruled that the collection could be moved. That's true, but it's worth noting that there was a second petition filed in 2007 (by some of the same parties who've brought this third suit), which the court dismissed three years ago. So the 2005 article is "not new" in the sense that it preceded that second lawsuit.
"The case illustrates the financial risks of the art market and highlights the difficulty of valuing an artist's work."
The Wall Street Journal's Robert Frank has more on Norman Waitt's lawsuit against Gerald Peters Gallery.
Wednesday, March 23, 2011
We Demand That You Not Close the Museum You Are Not Closing (a continuing series) (UPDATED)
Brandeis is renovating the Rose. Judith Dobrzynski has the story.
UPDATE: The Boston Globe has more: "major renovations" to protect the collection "for the long haul."
UPDATE: The Boston Globe has more: "major renovations" to protect the collection "for the long haul."
Sunday, March 20, 2011
Big Fair Use News: Patrick Cariou Prevails in his Copyright Lawsuit Against Richard Prince (UPDATED 3X)
Rob Haggart has the details. The decision is here. Background, including predictions of an easy win for Prince (in response to which someone says: "I wouldn't be so sure: litigation is always uncertain, and never more so than when it comes to appropriation art"), here. Back with more after I've had a chance to read the decision.
UPDATE: I've now read the decision, and the key bit is that the court rejected the fair use defense because, as Artnet's Walter Robinson puts it, "Prince's works do not specifically comment on Cariou's originals." (Robinson says: "Face it, the notion of 'appropriation' just doesn't play well in our law courts.") The NYT's Randy Kennedy writes that "Judge Batts wrote that for fair-use exceptions to apply, a new work of art must be transformative in the sense that it must 'in some way comment on, relate to the historical context of, or critically refer back to the original works' it borrows from."
That hasn't always seemed to be a requirement in other fair use cases. In Blanch v. Koons, for example, the Second Circuit noted that Koons used "Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media" (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch's image). Quoting the Supreme Court's Campbell decision, the court said the test of transformativeness is whether the later work "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." It's hard to imagine, to take another example, Shepard Fairey's Obama image passing muster under Judge Batts's standard. (That image was many things, but a commentary on the underlying photo was probably not one of them.)
Sergio Muñoz Sarmiento says the decision "give[s] credence to my theory that courts are increasingly becoming agitated with this 'free-for-all' mentality of certain artists when it comes to appropriating and commercializing off of other artists’ works."
The Copyright Litigation Blog's Ray Dowd says "the opinion is noteworthy and will basically EXPLODE the contemporary art world."
Charlie Finch says "having a judge as an interpreter of the meaning of art remains Kafkaesque: we can trot out the entire oeuvre of Andy Warhol, Robert Rauschenberg and a thousand other artists as violators of Judge Batts’ standard. But what of photographer Cariou? Is he not an artist, as well?"
Photo Teacher Paul Turounet "wonder[s] what this might mean for artists such as Thomas Ruff, Penelope Umbrico, Doug Rickard and Michael Wolf, appropriating imagery from the internet, including various search engines, Google Streetview and Flickr?"
Finally, good summaries of the decision from The Art Newspaper's Charlotte Burns and David Walker of Photo District News.
UPDATE 2: More reactions coming in. Ed Winkleman: "The ruling was a chilling decision for artists who work in appropriation."
Peter Friedman: "We need not go so far as to conclude that Cariou’s lawsuit signals the death of appropriation art in all its various guises. Blanch v. Koons alone is proof that is not the case. But if we realize how plainly and directly Prince’s appropriations damaged Cariou’s opportunities to economically benefit from his own work, the outcome (if not all of the reasoning) of this new case is obviously correct" (emphasis added).
Greg Allen, on the other hand, still can't believe Prince "somehow lost his open & shut copyright infringement case," and says the whole thing is "basically a flabbergasting shitshow":
"If it stands, it would have major, sweeping, and stifling effects. Not only would the current operating assumptions of fair use and transformative use be ratcheted way back, but the contemporary art world would be turned upside down. It would restrict both how artists appropriate, or even refer to, copyrighted work. And it would turn galleries into copyright police, with an affirmative responsibility to clear images, sources, and references for the work they show and sell. If visual artists and the art market have been operating in some kind of an appropriation bubble, this decision would pop it. Artists would have to adopt the sampling, licensing, and rights clearing practices and infrastructures of the music industry . . . . [T]he decision has some glaring omissions and relies rather heavily on almost-20-year-old textbooks and articles from law journals, while ignoring several highly relevant, recent decisions. The most notable ignored precedent is Blanch vs. Koons (2006), which happens to involve another Gagosian artist, and which seemed to set out a workable test of transformative use."
UPDATE 3: Interesting interview with Cariou here.
UPDATE: I've now read the decision, and the key bit is that the court rejected the fair use defense because, as Artnet's Walter Robinson puts it, "Prince's works do not specifically comment on Cariou's originals." (Robinson says: "Face it, the notion of 'appropriation' just doesn't play well in our law courts.") The NYT's Randy Kennedy writes that "Judge Batts wrote that for fair-use exceptions to apply, a new work of art must be transformative in the sense that it must 'in some way comment on, relate to the historical context of, or critically refer back to the original works' it borrows from."
That hasn't always seemed to be a requirement in other fair use cases. In Blanch v. Koons, for example, the Second Circuit noted that Koons used "Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media" (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch's image). Quoting the Supreme Court's Campbell decision, the court said the test of transformativeness is whether the later work "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." It's hard to imagine, to take another example, Shepard Fairey's Obama image passing muster under Judge Batts's standard. (That image was many things, but a commentary on the underlying photo was probably not one of them.)
Sergio Muñoz Sarmiento says the decision "give[s] credence to my theory that courts are increasingly becoming agitated with this 'free-for-all' mentality of certain artists when it comes to appropriating and commercializing off of other artists’ works."
The Copyright Litigation Blog's Ray Dowd says "the opinion is noteworthy and will basically EXPLODE the contemporary art world."
Charlie Finch says "having a judge as an interpreter of the meaning of art remains Kafkaesque: we can trot out the entire oeuvre of Andy Warhol, Robert Rauschenberg and a thousand other artists as violators of Judge Batts’ standard. But what of photographer Cariou? Is he not an artist, as well?"
Photo Teacher Paul Turounet "wonder[s] what this might mean for artists such as Thomas Ruff, Penelope Umbrico, Doug Rickard and Michael Wolf, appropriating imagery from the internet, including various search engines, Google Streetview and Flickr?"
Finally, good summaries of the decision from The Art Newspaper's Charlotte Burns and David Walker of Photo District News.
UPDATE 2: More reactions coming in. Ed Winkleman: "The ruling was a chilling decision for artists who work in appropriation."
Peter Friedman: "We need not go so far as to conclude that Cariou’s lawsuit signals the death of appropriation art in all its various guises. Blanch v. Koons alone is proof that is not the case. But if we realize how plainly and directly Prince’s appropriations damaged Cariou’s opportunities to economically benefit from his own work, the outcome (if not all of the reasoning) of this new case is obviously correct" (emphasis added).
Greg Allen, on the other hand, still can't believe Prince "somehow lost his open & shut copyright infringement case," and says the whole thing is "basically a flabbergasting shitshow":
"If it stands, it would have major, sweeping, and stifling effects. Not only would the current operating assumptions of fair use and transformative use be ratcheted way back, but the contemporary art world would be turned upside down. It would restrict both how artists appropriate, or even refer to, copyrighted work. And it would turn galleries into copyright police, with an affirmative responsibility to clear images, sources, and references for the work they show and sell. If visual artists and the art market have been operating in some kind of an appropriation bubble, this decision would pop it. Artists would have to adopt the sampling, licensing, and rights clearing practices and infrastructures of the music industry . . . . [T]he decision has some glaring omissions and relies rather heavily on almost-20-year-old textbooks and articles from law journals, while ignoring several highly relevant, recent decisions. The most notable ignored precedent is Blanch vs. Koons (2006), which happens to involve another Gagosian artist, and which seemed to set out a workable test of transformative use."
UPDATE 3: Interesting interview with Cariou here.
Saturday, March 19, 2011
"Things might not have come to this point if anyone had looked at the Met's website . . ."
". . . which still lists the painting as 'Partial and Promised Gift of Jan Cowles and Charles Cowles'."
Georgina Adam has more on the "unusual lawsuit" recently brought against Gagosian Gallery.
Georgina Adam has more on the "unusual lawsuit" recently brought against Gagosian Gallery.
Friday, March 18, 2011
Tell me again about the public trust (a continuing series)
Carol Vogel has an update on the Renoir that the Clark is holding in the public trust, to be accessible to present and future generations.
"In the wake of a legal settlement announced this week, in which Norsigian agreed not to use the Adams name in selling his pictures . . ."
". . . the price has tumbled to $800 for gelatin silver and $600 for digital, sold in limited editions of 100 each."
Before the settlement, the asking price was apparently $7,500 for gelatin silver and $1,500 for digital (in editions of 50 and 250, respectively).
Before the settlement, the asking price was apparently $7,500 for gelatin silver and $1,500 for digital (in editions of 50 and 250, respectively).
Thursday, March 17, 2011
"There's a whole constituency in the art world that acts like hall monitors, policing the manners of everyone." (UPDATED)
That's Peter Schjeldahl, quoted in Judith Dobrzynski's follow-up to her New York Times article today on the growing prevalence of single-collector exhibitions. She adds that "he, like so many others, just wants to see art that's normally behind locked doors." Also: "This certainly should not be the third-rail kind of issue that some art pundits want to make it." Very few of them are.
UPDATE: The Art Market Monitor: "Dobrzynksi makes an excellent argument for the essential role of collectors in defining collecting fields and amassing collections that no institution could ever form by committee."
UPDATE: The Art Market Monitor: "Dobrzynksi makes an excellent argument for the essential role of collectors in defining collecting fields and amassing collections that no institution could ever form by committee."
"The Trust had five legs welded to the bottom of 'Lagoon,' a matter on which the artist was never consulted."
Anthony Caro disowns a work altered by its owner.
"Museums exist to educate the public and delight them; it makes sense to feature these collections if you can."
Museums around the country are embracing single-collector exhibitions.
Wednesday, March 16, 2011
More on the Adams Settlement
The New York Times has a story this morning on the Ansel Adams settlement. The gist of it is that "it is not exactly clear just what has been resolved, beyond a cessation of name calling," but it seems to me that, if the settlement ensures that Norsigian "cannot use Adams’s name in selling prints from the negatives," then the Adams Trust has gotten prety much what it wanted out of the suit.
Tuesday, March 15, 2011
Adams Settlement
The Ansel Adams lawsuit has settled:
"Under said agreement, Rick Norsigian and PRS Media agree to not use Ansel Adams' name or likeness or the ANSEL ADAMS trademark in connection with the sales, promotion or advertisement of [the works at issue]. Norsigian and PRS Media may continue to sell [such works], subject to a disclaimer approved by The [Adams] Trust, and provided they do so in a manner consistent with state and federal law. Further, both parties have agreed not to make any defamatory statements about the other or unlawfully interfere in each other's businesses."
"Under said agreement, Rick Norsigian and PRS Media agree to not use Ansel Adams' name or likeness or the ANSEL ADAMS trademark in connection with the sales, promotion or advertisement of [the works at issue]. Norsigian and PRS Media may continue to sell [such works], subject to a disclaimer approved by The [Adams] Trust, and provided they do so in a manner consistent with state and federal law. Further, both parties have agreed not to make any defamatory statements about the other or unlawfully interfere in each other's businesses."
Monday, March 14, 2011
Friday, March 11, 2011
"And one day I saw it on the wall and thought, ‘Hey, I could use money’ and so I decided to sell it."
"And now it’s a big mess."
The NYT's Randy Kennedy reports that a collector has sued Gagosian Gallery, alleging that they sold him a Mark Tansey painting that was already partially owned by the Met.
The NYT's Randy Kennedy reports that a collector has sued Gagosian Gallery, alleging that they sold him a Mark Tansey painting that was already partially owned by the Met.
Linkage
- "A warning to collectors about the notion of authenticity."
- "Sotheby’s has provided a guarantee for the work but we won’t know for some time whether they finally broke their self-imposed ban on providing the guarantees themselves."
- "Marina did not sign anything stating he could make installations or photographic or video editions of this work."
Thursday, March 10, 2011
That's the thing about legal rows
They tend to escalate.
The Art Newspaper's Charlotte Burns has the latest developments in the Ansel Adams litigation.
The Art Newspaper's Charlotte Burns has the latest developments in the Ansel Adams litigation.
Wednesday, March 09, 2011
The Next Fair Use Case
Involves Mr. Brainwash (of Exit Through the Gift Shop fame) and Run DMC. The Art Newspaper has the story.
Tuesday, March 08, 2011
"This provides us with a great cushion, so that that we can continue the quality and variety of art projects in the park."
I meant to flag this one before the weekend, but Carol Vogel's latest Inside Art column included a little report that the non-profit Madison Square Park Conservancy had sold two pieces given to it by Sol LeWitt in 2005. The sales raised $1.4 million.
The Art Market Monitor's post about it carried the headline "Madison Park Deaccessions LeWitt Sculptures," which I thought was very clever, because obviously no one has (or could have) any problem with the sale. We can all agree that the Madison Square Park Conservancy is not repulsive. So the case against deaccessioning does not reside in the non-profit status of the selling institution, as some have tried to argue. We recognize that the Madison Square Park Conservancy has a larger mission that can be advanced through the sale of these works. So too with other types of non-profits, like medical schools. So why is it so difficult to admit that museums also have larger missions that can, in the right circumstances, be served through the sale of some work?
The Art Market Monitor's post about it carried the headline "Madison Park Deaccessions LeWitt Sculptures," which I thought was very clever, because obviously no one has (or could have) any problem with the sale. We can all agree that the Madison Square Park Conservancy is not repulsive. So the case against deaccessioning does not reside in the non-profit status of the selling institution, as some have tried to argue. We recognize that the Madison Square Park Conservancy has a larger mission that can be advanced through the sale of these works. So too with other types of non-profits, like medical schools. So why is it so difficult to admit that museums also have larger missions that can, in the right circumstances, be served through the sale of some work?
Friday, March 04, 2011
"Engel said it wasn't worth the time and trouble of trying the case."
The LAT's Mike Boehm reports that Clint Arthur's pointless lawsuit against Louis Vuitton has settled, "for a $12,000 refund, plus interest — what Louis Vuitton had offered before he sued."
So to recap:
In the summer of 2008, Arthur sued LV for violating the California print disclosure statute in connection with the sale of some works by Takashi Murakami at his exhibition at L.A. MOCA earlier that year. At the time, I wrote that there was something odd about the claim:
" As I read the statute, the available recovery for a violation is 'the consideration paid by the purchaser for the [print], with interest ..., upon the return of the multiple in the condition in which received by the purchaser' -- in other words, you can return the print and get your money back (with interest). If you can show the violation was willful, you can get three times that amount (but presumably you still have to return the print). I would think that Vuitton ... has a pretty strong defense to a willfulness charge since they are not really in the art-selling business and therefore wouldn't have reason to know about something the LA Times calls 'an obscure chapter of the California Civil Code called the Fine Prints Act.' .... Vuitton has already offered the plaintiff a refund plus interest (i.e., what he would be entitled to for a non-willful violation), but he turned it down."
In 2009, a state court judge dismissed the case filed there, calling it a "prime example" of "opportunistic litigation."
Arthur's separate federal lawsuit somehow survived some early motion practice, but, eventually, last spring, most of that lawsuit was thrown out as well:
"We're left, then, with a 'gotcha' claim: that LV violated the technical requirements of the California Fine Prints Act. There really isn't any question that they did so. So Arthur is entitled to a refund; that's the remedy for a violation of the statute -- and Arthur could have had one at any point during this process. The only remaining issue would seem to be whether or not it's fair to charge LV -- not generally in the art gallery business -- with willfully violating what the LA Times called 'an obscure chapter of the California Civil Code,' such that Arthur (and, perhaps, anyone else who wants to trade in their print) is entitled to treble damages. So, at best, Arthur would be entitled to $18,000 per print instead of $6,000. It all seems so pointless to me."
And finally, the recent settlement, with Arthur finally accepting the refund that was offered to him all along.
So to recap:
In the summer of 2008, Arthur sued LV for violating the California print disclosure statute in connection with the sale of some works by Takashi Murakami at his exhibition at L.A. MOCA earlier that year. At the time, I wrote that there was something odd about the claim:
" As I read the statute, the available recovery for a violation is 'the consideration paid by the purchaser for the [print], with interest ..., upon the return of the multiple in the condition in which received by the purchaser' -- in other words, you can return the print and get your money back (with interest). If you can show the violation was willful, you can get three times that amount (but presumably you still have to return the print). I would think that Vuitton ... has a pretty strong defense to a willfulness charge since they are not really in the art-selling business and therefore wouldn't have reason to know about something the LA Times calls 'an obscure chapter of the California Civil Code called the Fine Prints Act.' .... Vuitton has already offered the plaintiff a refund plus interest (i.e., what he would be entitled to for a non-willful violation), but he turned it down."
In 2009, a state court judge dismissed the case filed there, calling it a "prime example" of "opportunistic litigation."
Arthur's separate federal lawsuit somehow survived some early motion practice, but, eventually, last spring, most of that lawsuit was thrown out as well:
"We're left, then, with a 'gotcha' claim: that LV violated the technical requirements of the California Fine Prints Act. There really isn't any question that they did so. So Arthur is entitled to a refund; that's the remedy for a violation of the statute -- and Arthur could have had one at any point during this process. The only remaining issue would seem to be whether or not it's fair to charge LV -- not generally in the art gallery business -- with willfully violating what the LA Times called 'an obscure chapter of the California Civil Code,' such that Arthur (and, perhaps, anyone else who wants to trade in their print) is entitled to treble damages. So, at best, Arthur would be entitled to $18,000 per print instead of $6,000. It all seems so pointless to me."
And finally, the recent settlement, with Arthur finally accepting the refund that was offered to him all along.
Thursday, March 03, 2011
Wednesday, March 02, 2011
Creeping back
In The Art Newspaper, Georgina Adam and Charlotte Burns report that auction house guarantees, "which disappeared during the downturn," are making a comeback, and that, "among art dealers, there are few more divisive subjects."
I reviewed the relevant legal rules a while back here.
I reviewed the relevant legal rules a while back here.
Tuesday, March 01, 2011
Artelligence Conference
For those interested in monitoring the art market, The Art Market Monitor has put together a one-day conference on "understanding art as an asset," on April 13, that you won't want to miss. Details here.
Monday, February 28, 2011
Kuspit on the Iowa Pollock
Donald Kuspit thinks "the university and state had the chance to do some human good with Mural and muffed the chance":
"Raecker’s bill is dead, ... but the issue Raecker’s bill raises remains alive. It can be put another way: Mural may be a 'national asset,' as Dove said, but how much of an educational asset is it? It gives the university, its art history department, and its museum a great deal of prestige ... but what can the students learn from it ...? Just what exactly does it contribute to their intellectual and emotional development? Would it be of greater benefit to them if it was sold and the money from the sale used to fund scholarships in perpetuity rather than whatever benefit they might gain by studying it -- and I don’t doubt there is an educational benefit? ... [W]hat lasting effect will it have on the students -- and I don’t doubt that it will have an effect ... ? Simply put, what good does it do hanging in all its glory in the university’s museum -- in any museum -- considering the good it could do if it was sold to endow a scholarship fund?"
"Raecker’s bill is dead, ... but the issue Raecker’s bill raises remains alive. It can be put another way: Mural may be a 'national asset,' as Dove said, but how much of an educational asset is it? It gives the university, its art history department, and its museum a great deal of prestige ... but what can the students learn from it ...? Just what exactly does it contribute to their intellectual and emotional development? Would it be of greater benefit to them if it was sold and the money from the sale used to fund scholarships in perpetuity rather than whatever benefit they might gain by studying it -- and I don’t doubt there is an educational benefit? ... [W]hat lasting effect will it have on the students -- and I don’t doubt that it will have an effect ... ? Simply put, what good does it do hanging in all its glory in the university’s museum -- in any museum -- considering the good it could do if it was sold to endow a scholarship fund?"
Saturday, February 26, 2011
"Deaccessioning is both legal and ethical ... and should be embraced as a tool for museum survival."
Via The Deaccessioning Blog, a student Note entitled Let Them Sell Art: Why a Broader Deaccession Policy Today Could Save Museums Tomorrow: "Instead of exiling museums for deaccessioning for financial reasons and forcing other museums to cancel loans to and exhibits with the exiled museum, the AAMD and AAM should work with their members to form and enforce a deaccessioning policy that will protect the public trust by helping museums stay open."
Or we can just let them fail.
Do you ever get the feeling that, outside a small circle of True Believers, no one's really buying the absolutist case against deaccessioning?
But speaking of the small group of True Believers, there is one bit of news in the Note (or at least it's news to me; I don't recall seeing this reported anywhere): it seems the NY Board of Regents ad hoc committee on deaccessioning has proposed an amendment to the current rules and -- big surprise! -- the idea is to maintain the status quo. They keep the basic AAMD principle -- sales proceeds can only be used to buy more art -- but now they propose to tell museums When It’s Okay to deaccession (even when the proceeds go to buy more art). There's a list of nine specific crieria -- the item is inconsistent with the mission of the institution, the item has failed to retain its identity, the museum can no longer properly care for it, etc. -- but one of them is "refinement of the collection" and that seems to me to be an exception big enough to drive a truck through. I think you can justify just about any case of deaccessioning by saying it’s to REFINE THE COLLECTION. So as a practical matter, I don’t know how much of a difference this proposed amendment to the rules would make. Which I suppose is how the museum directors want it.
Or we can just let them fail.
Do you ever get the feeling that, outside a small circle of True Believers, no one's really buying the absolutist case against deaccessioning?
But speaking of the small group of True Believers, there is one bit of news in the Note (or at least it's news to me; I don't recall seeing this reported anywhere): it seems the NY Board of Regents ad hoc committee on deaccessioning has proposed an amendment to the current rules and -- big surprise! -- the idea is to maintain the status quo. They keep the basic AAMD principle -- sales proceeds can only be used to buy more art -- but now they propose to tell museums When It’s Okay to deaccession (even when the proceeds go to buy more art). There's a list of nine specific crieria -- the item is inconsistent with the mission of the institution, the item has failed to retain its identity, the museum can no longer properly care for it, etc. -- but one of them is "refinement of the collection" and that seems to me to be an exception big enough to drive a truck through. I think you can justify just about any case of deaccessioning by saying it’s to REFINE THE COLLECTION. So as a practical matter, I don’t know how much of a difference this proposed amendment to the rules would make. Which I suppose is how the museum directors want it.
Thursday, February 24, 2011
Tell me again about the "public trust" (a continuing series)
Because who needs another Renoir, right?
How come no one seems to worry about nervous, fleeing donors when a museum ships a work like this off to Maastricht for sale at $15 million?
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?
How is it that only some sales have a chilling effect on future donations?
It's almost as if the whole thing is an exercise in smoke and mirrors.
How come no one seems to worry about nervous, fleeing donors when a museum ships a work like this off to Maastricht for sale at $15 million?
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?
How is it that only some sales have a chilling effect on future donations?
It's almost as if the whole thing is an exercise in smoke and mirrors.
"The sales are designed to secure the fiscal health of the institution (and certainly not earmarked for future acquisitions)"
Artnet's Walter Robinson reports that a German museum has been selling off some work, including a $13 million Richter, and does not plan to use the proceeds to buy more art.
What? That can't be right. Don't they know it's repulsive to sell art and not use the proceeds to buy more art? Do the Deaccession Police not have an office in Germany?
Look, this is a reminder that when people run around ranting and raving about the evils of deaccessioning, all they're really doing is enforcing a set of guidelines a private organization has adopted, for their own institutional reasons, and in their own self-interest. It's not some immutable moral principle. It's just the way one group of museum directors would like the world to be. Other museum groups have different views (in Germany apparently, as well as in the U.K.).
As I've said before, can we at least take it down a notch?
What? That can't be right. Don't they know it's repulsive to sell art and not use the proceeds to buy more art? Do the Deaccession Police not have an office in Germany?
Look, this is a reminder that when people run around ranting and raving about the evils of deaccessioning, all they're really doing is enforcing a set of guidelines a private organization has adopted, for their own institutional reasons, and in their own self-interest. It's not some immutable moral principle. It's just the way one group of museum directors would like the world to be. Other museum groups have different views (in Germany apparently, as well as in the U.K.).
As I've said before, can we at least take it down a notch?
Not his day
ARCA's Catherine Schofield Sezgin notes a story that was making the rounds yesterday of "a security guard from Corsica's Fine Arts Museum in the Palais Fesch [who] stole four paintings, submitted his ransom demand for housing through a local television station, and when he led police to his car, discovered that the window had been smashed and that the four paintings had been stolen from his car."
Tuesday, February 22, 2011
In your face, Scotland!
The LA Times has a little piece about the Getty's "new pride and joy," J.M.W. Turner's 1839 "Modern Rome -- Campo Vaccino." They're planning a big shindig in March "to celebrate the arrival and installation."
But here's a question: what about the people of Scotland?
Remember, "the painting long had resided on loan in the National Galleries of Scotland in Edinburgh." The Getty bid $44.9 million for the work at auction last year, but an export license was held up in an (ultimately fruitless) attempt to find a matching bid that would keep it in the U.K. The Scotland Herald's headline before the sale was: Scotland's loss as Turner set to be auctioned.
And indeed it is.
So why don't the deaccession police care about that loss?
I understand that, technically, the situations are not the same since the Turner was privately owned, but why am I, sitting here in New York, supposed to be all broken up if Bentonville, Arkansas takes a work away from Nashville, Tennessee, or Iowa City, Iowa, but ready to celebrate if Los Angeles takes a work away from Edinburgh? Is it a matter of pure nationalism?
What is this, the Olympics?
But here's a question: what about the people of Scotland?
Remember, "the painting long had resided on loan in the National Galleries of Scotland in Edinburgh." The Getty bid $44.9 million for the work at auction last year, but an export license was held up in an (ultimately fruitless) attempt to find a matching bid that would keep it in the U.K. The Scotland Herald's headline before the sale was: Scotland's loss as Turner set to be auctioned.
And indeed it is.
So why don't the deaccession police care about that loss?
I understand that, technically, the situations are not the same since the Turner was privately owned, but why am I, sitting here in New York, supposed to be all broken up if Bentonville, Arkansas takes a work away from Nashville, Tennessee, or Iowa City, Iowa, but ready to celebrate if Los Angeles takes a work away from Edinburgh? Is it a matter of pure nationalism?
What is this, the Olympics?
Monday, February 21, 2011
"My advice to art lovers? Do your due diligence before buying"
Good counsel from the Art Loss Register's Chris Marinello in the Financial Times.
"The issue has become so cumbersomely emotional that reaching consensus is unlikely, the legislator pushing for the sale said today."
The state legislator who proposed selling the University of Iowa Pollock (and using the money for more scholarships) has dropped the idea.
Thursday, February 17, 2011
No Standing
Citing "important new evidence," opponents of the Barnes move have filed a petition to reopen the case. What's the new evidence? Statements made in "a recent documentary movie entitled The Art of the Steal." I kid you not.
Statements made by the then-Attorney General in the documentary show that he "forfeited his neutrality" and was "an active participant," a "co-conspirator" in the move. Statements made by the then-Governor "are totally inaccurate": "it is now known" that $107 million in public monies "were being set aside by the former Governor of Pennsylvania to facilitate the transfer." The court "was grossly misled during these proceedings that the Barnes Foundation was fiscally unable to maintain its Lower Merion address when, in fact, the Governor had already set aside substantial funds of public monies to support the transfer of the collection to Philadelphia." The "same funds could have been used to maintain the Barnes Foundation at its current location." The court was thus "misled."
Really. That's the whole argument: "The major reason to reopen this matter is the fact that this Court was misled as to the role of the Attorney General and misled as tot eh availability of public funds" (typos in the original).
But here's the thing: the Friends of the Barnes petitioned to reopen the case once before, in 2007, relying explicitly on the hundred million dollar line item in the budget. There is nothing new about that issue. In 2008, Judge Ott dismissed the previous petition on standing grounds: he said "the Friends have no standing because they have no interest beyond that of the general public." "It is clear," he concluded, "that the Friends lack standing in this matter" (emphasis added).
Given that, it's incredible that the Friends would try again like this. Last time, Judge Ott decided not to grant the Foundation's request for attorney's fees. He said, "in this instance, we believe the petitioners filings were made in good faith, and the events that precipitated the filings (the state budget appropriations' coming to light and the County's offer to explore the purchase/lease-back arrangement) were of sufficient import that the attempt to reopen the issues was not arbitrary." As a result, "the petitioners' conduct did not meet the legal definition of 'vexatious.'"
It wouldn't surprise me at all if he finds that this time it does, and orders the Friends (and other petitioners) to pay the Foundation's legal fees defending the motion.
The petition is here. The Philadelphia Inquirer runs an AP story here.
Statements made by the then-Attorney General in the documentary show that he "forfeited his neutrality" and was "an active participant," a "co-conspirator" in the move. Statements made by the then-Governor "are totally inaccurate": "it is now known" that $107 million in public monies "were being set aside by the former Governor of Pennsylvania to facilitate the transfer." The court "was grossly misled during these proceedings that the Barnes Foundation was fiscally unable to maintain its Lower Merion address when, in fact, the Governor had already set aside substantial funds of public monies to support the transfer of the collection to Philadelphia." The "same funds could have been used to maintain the Barnes Foundation at its current location." The court was thus "misled."
Really. That's the whole argument: "The major reason to reopen this matter is the fact that this Court was misled as to the role of the Attorney General and misled as tot eh availability of public funds" (typos in the original).
But here's the thing: the Friends of the Barnes petitioned to reopen the case once before, in 2007, relying explicitly on the hundred million dollar line item in the budget. There is nothing new about that issue. In 2008, Judge Ott dismissed the previous petition on standing grounds: he said "the Friends have no standing because they have no interest beyond that of the general public." "It is clear," he concluded, "that the Friends lack standing in this matter" (emphasis added).
Given that, it's incredible that the Friends would try again like this. Last time, Judge Ott decided not to grant the Foundation's request for attorney's fees. He said, "in this instance, we believe the petitioners filings were made in good faith, and the events that precipitated the filings (the state budget appropriations' coming to light and the County's offer to explore the purchase/lease-back arrangement) were of sufficient import that the attempt to reopen the issues was not arbitrary." As a result, "the petitioners' conduct did not meet the legal definition of 'vexatious.'"
It wouldn't surprise me at all if he finds that this time it does, and orders the Friends (and other petitioners) to pay the Foundation's legal fees defending the motion.
The petition is here. The Philadelphia Inquirer runs an AP story here.
Wednesday, February 16, 2011
7th Circuit Wildflower Decision (UPDATED)
The Seventh Circuit has issued its decision in the Chapman Kelley Wildflowers case. You can read it here. I won't have time to get to it until later, but in the meantime here is Sergio Muñoz Sarmiento, who says it's "not a good day for artists’ rights." For background on the dispute, start here.
UPDATE: Okay, I've read the decision. On the one hand, it certainly feels like a big blow to artists' rights ("not all conceptual art may be copyrighted"). But on the other hand, the actual holding may be quite narrow. But on the other other hand, there is language in the case, not essential to the holding, that is absolutely terrifying from an artists' rights perspective.
I think what the case holds, at bottom, is simply that gardens are not copyrightable:
"A living garden like Wildflower Works is neither 'authored' nor 'fixed' in the senses required for copyright. . . . Simply put, gardens are planted and cultivated, not authored. A garden's constituent elements are alive and inherently changeable, not fixed. Most of what we see and experience in a garden . . . originates in nature, not in the mind of the gardener. At any given moment in time, a garden owes most of its form and appearance to natural forces .... Of course, a human 'author' . . . determines the initial arrangement of the plants in a garden. This is not the kind of authorship required for copyright. . . . The essence of a garden is its vitality, not its fixedness. . . . [I]ts nature is one of dynamic change."
Having said that, the court immediately adds the following qualifiers:
"We are not suggesting that copyright attaches only to works that are static or fully permanent ... or that artists who incorporate natural or living elements in their work can never claim copyright."
And it expressly distinguishes Jeff Koons's "Puppy" from Kelley's work:
"In 'Puppy' the artist assembled a huge metal frame in the shape of a puppy and covered it with thousands of blooming flowers . . . . This may be sufficient fixation for copyright (we venture no opinion on the question), but Wildflower Works is quite different. It is quintessentially a garden; 'Puppy' is not. In short, Wildflower Works presents serious problems of authorship and fixation that these and other examples of conceptual or kinetic art do not" (emphases added).
So, again, the actual holding seems fairly limited (though certainly not helpful to artists). As I mentioned, however, there is some extremely scary language earlier in the decision. But before we get to that, let me briefly mention two (more positive) points:
1. In my initial posting on the case back in 2008, I said the district court's holding that the work was not "original" enough to qualify for copyright protection was "just plain wrong" under the Supreme Court's Feist decision. The Seventh Circuit says the same thing: the district court "misunderstands the originality requirement." I said: "Whatever one may think of Kelley's work, it's impossible to deny the spark of creativity that led to it." The Court here says: "No one argues that Wildflower Works was copied; it plainly possesses more than a little creative spark."
2. Also in that initial posting, I noted that the district court had followed the First Circuit in Phillips v. Pembroke in finding that VARA does not protect site-specific art at all, and I said that "while a reasonable argument can be made that VARA doesn't prevent the removal of a site-specific work, there's no reason to completely exclude site-specific works from VARA's orbit. ... Let's say that, instead of removal, someone had come in one night and destroyed large sections of the work, or splashed red paint all over it, or otherwise defaced it. Why should the work not be protected against those sorts of things?" The Court here says, "though we need not decide [the] question," Phillips's "all-or-nothing approach to site-specific art may be unwarranted. . . . [S]ite-specific art -- like any other type of art -- can be defaced or damaged."
Now to the very scary part. Before getting to the specific holding in the case -- that works that are too garden-like are not eligible for copyright protection -- the Court first goes out of its way to point out that VARA applies only to "specific types of visual art." "[O]nly a select few categories of art" get VARA protection. Those categories are paintings, drawings, prints, sculptures, and photographs. And this does not include "sculptural works," three-dimensional works that are "'sculptural' in some aspect or effect." It has to actually be "a sculpture" -- "not metaphorically or by analogy, but really."
I say the Court went out of its way to make this point because the defendant in the case, the Chicago Park District, did not contest the district court's holding that the work is a sculpture. The Court calls it "an astonishing omission," and says:
"In short, this case raises serious questions about the meaning and application of VARA's definition of qualifying works of visual art -- questions with potentially decisive consequence for this and other moral rights claims. But the Park District has not challenged this aspect of the district court's decision, so we move directly to the question of copyrightability ...."
This is the part that, if followed by other courts, may well be, as Sergio puts it, "the kiss of death to conceptual art," as well as lots of other contemporary art-making that doesn't fit neatly into the "painting" or "sculpture" box. This just seems foolishly literalist to me (why would you exclude what a large percentage of our visual artists are doing from the orbit of the Visual Artists Rights Act?), but it's late, so let me stop here and pick it up again in the next few days.
UPDATE: Okay, I've read the decision. On the one hand, it certainly feels like a big blow to artists' rights ("not all conceptual art may be copyrighted"). But on the other hand, the actual holding may be quite narrow. But on the other other hand, there is language in the case, not essential to the holding, that is absolutely terrifying from an artists' rights perspective.
I think what the case holds, at bottom, is simply that gardens are not copyrightable:
"A living garden like Wildflower Works is neither 'authored' nor 'fixed' in the senses required for copyright. . . . Simply put, gardens are planted and cultivated, not authored. A garden's constituent elements are alive and inherently changeable, not fixed. Most of what we see and experience in a garden . . . originates in nature, not in the mind of the gardener. At any given moment in time, a garden owes most of its form and appearance to natural forces .... Of course, a human 'author' . . . determines the initial arrangement of the plants in a garden. This is not the kind of authorship required for copyright. . . . The essence of a garden is its vitality, not its fixedness. . . . [I]ts nature is one of dynamic change."
Having said that, the court immediately adds the following qualifiers:
"We are not suggesting that copyright attaches only to works that are static or fully permanent ... or that artists who incorporate natural or living elements in their work can never claim copyright."
And it expressly distinguishes Jeff Koons's "Puppy" from Kelley's work:
"In 'Puppy' the artist assembled a huge metal frame in the shape of a puppy and covered it with thousands of blooming flowers . . . . This may be sufficient fixation for copyright (we venture no opinion on the question), but Wildflower Works is quite different. It is quintessentially a garden; 'Puppy' is not. In short, Wildflower Works presents serious problems of authorship and fixation that these and other examples of conceptual or kinetic art do not" (emphases added).
So, again, the actual holding seems fairly limited (though certainly not helpful to artists). As I mentioned, however, there is some extremely scary language earlier in the decision. But before we get to that, let me briefly mention two (more positive) points:
1. In my initial posting on the case back in 2008, I said the district court's holding that the work was not "original" enough to qualify for copyright protection was "just plain wrong" under the Supreme Court's Feist decision. The Seventh Circuit says the same thing: the district court "misunderstands the originality requirement." I said: "Whatever one may think of Kelley's work, it's impossible to deny the spark of creativity that led to it." The Court here says: "No one argues that Wildflower Works was copied; it plainly possesses more than a little creative spark."
2. Also in that initial posting, I noted that the district court had followed the First Circuit in Phillips v. Pembroke in finding that VARA does not protect site-specific art at all, and I said that "while a reasonable argument can be made that VARA doesn't prevent the removal of a site-specific work, there's no reason to completely exclude site-specific works from VARA's orbit. ... Let's say that, instead of removal, someone had come in one night and destroyed large sections of the work, or splashed red paint all over it, or otherwise defaced it. Why should the work not be protected against those sorts of things?" The Court here says, "though we need not decide [the] question," Phillips's "all-or-nothing approach to site-specific art may be unwarranted. . . . [S]ite-specific art -- like any other type of art -- can be defaced or damaged."
Now to the very scary part. Before getting to the specific holding in the case -- that works that are too garden-like are not eligible for copyright protection -- the Court first goes out of its way to point out that VARA applies only to "specific types of visual art." "[O]nly a select few categories of art" get VARA protection. Those categories are paintings, drawings, prints, sculptures, and photographs. And this does not include "sculptural works," three-dimensional works that are "'sculptural' in some aspect or effect." It has to actually be "a sculpture" -- "not metaphorically or by analogy, but really."
I say the Court went out of its way to make this point because the defendant in the case, the Chicago Park District, did not contest the district court's holding that the work is a sculpture. The Court calls it "an astonishing omission," and says:
"In short, this case raises serious questions about the meaning and application of VARA's definition of qualifying works of visual art -- questions with potentially decisive consequence for this and other moral rights claims. But the Park District has not challenged this aspect of the district court's decision, so we move directly to the question of copyrightability ...."
This is the part that, if followed by other courts, may well be, as Sergio puts it, "the kiss of death to conceptual art," as well as lots of other contemporary art-making that doesn't fit neatly into the "painting" or "sculpture" box. This just seems foolishly literalist to me (why would you exclude what a large percentage of our visual artists are doing from the orbit of the Visual Artists Rights Act?), but it's late, so let me stop here and pick it up again in the next few days.
Tuesday, February 15, 2011
LaChapelle v. Rihanna
Photographer David LaChapelle is suing pop star Rihanna, claiming the video for her latest video infringes his work. The NYT's Randy Kennedy has a report here. The Daily Mail runs some side-by-side comparisons, and it seems it's another case of idea vs. expression.
Court of Appeals Affirms Wildenstein Dismissal
The New York Court of Appeals has unanimously affirmed the dismissal of a lawsuit against Guy Wildenstein arising out of the purchase of a Gauguin painting. The decision is here.
I summarized the trial court ruling here:
"The plaintiff was informed by an Amir Cohen that the painting was available and, interested in buying, 'requested Cohen to procure an appraisal.' Cohen recommended Guy Wildenstein, who then provided a written appraisal to Michel Reymondin, 'a non-party to this action whose relationship to plaintiff and the transaction at issue in not disclosed in the complaint.' Wildenstein appraised the painting at $15-17 million, allegedly without disclosing that his gallery once owned the painting. 'The complaint alleges that plaintiff received the Appraisal ..., but does not state how it obtained the Appraisal from Reymondin.' Plaintiff paid $11.3 million for the painting, which it then tried to sell at Christie's, but it failed to reach its $12 million reserve. The lawsuit followed, but the claims all failed because there was no relationship between plaintiff and Wildenstein -- the appraisal was obtained by the mystery middle man, Reymondin."
The Court of Appeals affirmed for largely the same reason, i.e. "the lack of allegations that would indicate a relationship between the parties, or at least an awareness by Wildenstein of Mandarin's existence."
At the intermediate appellate level, one judge thought the unjust enrichment claim should have survived because, on such a claim, "there is no requirement that the aggrieved party be in privity with the party enriched at his or her expense." But the Court of Appeals held that, although it is true that "privity is not required for an unjust enrichment claim," such a claim will nevertheless fail "if the connection between the parties is too attenuated."
I summarized the trial court ruling here:
"The plaintiff was informed by an Amir Cohen that the painting was available and, interested in buying, 'requested Cohen to procure an appraisal.' Cohen recommended Guy Wildenstein, who then provided a written appraisal to Michel Reymondin, 'a non-party to this action whose relationship to plaintiff and the transaction at issue in not disclosed in the complaint.' Wildenstein appraised the painting at $15-17 million, allegedly without disclosing that his gallery once owned the painting. 'The complaint alleges that plaintiff received the Appraisal ..., but does not state how it obtained the Appraisal from Reymondin.' Plaintiff paid $11.3 million for the painting, which it then tried to sell at Christie's, but it failed to reach its $12 million reserve. The lawsuit followed, but the claims all failed because there was no relationship between plaintiff and Wildenstein -- the appraisal was obtained by the mystery middle man, Reymondin."
The Court of Appeals affirmed for largely the same reason, i.e. "the lack of allegations that would indicate a relationship between the parties, or at least an awareness by Wildenstein of Mandarin's existence."
At the intermediate appellate level, one judge thought the unjust enrichment claim should have survived because, on such a claim, "there is no requirement that the aggrieved party be in privity with the party enriched at his or her expense." But the Court of Appeals held that, although it is true that "privity is not required for an unjust enrichment claim," such a claim will nevertheless fail "if the connection between the parties is too attenuated."
Monday, February 14, 2011
"There really is an opportunity cost of this money."
Tyler Cowen says that states that are cutting back on arts funding are doing the right thing:
"If you're a libertarian, the choice is obvious. If you're a progressive, it is better to spend the money on Medicaid expansion or other more worthy goals. There really is an opportunity cost of this money[;] . . . we could use those funds to save some lives. Most of the benefit of arts subsidies goes to the relatively wealthy and well-educated."
You see this in the deaccessioning debate too. A lot of people want to pretend there are no opportunity costs involved. You can keep the art (or the arts funding) and the scholarship money and the 18 academic programs and the Medicaid expansion and all the other worthy goals. There are no conflicts, no hard choices to be made. The money for everything just magically appears. If you think otherwise, you're repulsive.
Relatedly, The New Republic's Jonathan Chait says "public arts subsidies are inherently problematic. It's problematic to force people to subsidize art that offends their religion or their values. It's also problematic to have the government vet art for messages that might be politically toxic."
And Matt Yglesias sees a "huge advantage" to our system of subsidizing the arts through charitable donations: "[The system] lets you hide the ball. You never hear people getting mad over the fact that tax-exempt contributions are going to fund controversial or offensive art. It’s a pretty good model, and yet nobody ever talks about it, in part because it works precisely through the mechanism of people not talking about it."
"If you're a libertarian, the choice is obvious. If you're a progressive, it is better to spend the money on Medicaid expansion or other more worthy goals. There really is an opportunity cost of this money[;] . . . we could use those funds to save some lives. Most of the benefit of arts subsidies goes to the relatively wealthy and well-educated."
You see this in the deaccessioning debate too. A lot of people want to pretend there are no opportunity costs involved. You can keep the art (or the arts funding) and the scholarship money and the 18 academic programs and the Medicaid expansion and all the other worthy goals. There are no conflicts, no hard choices to be made. The money for everything just magically appears. If you think otherwise, you're repulsive.
Relatedly, The New Republic's Jonathan Chait says "public arts subsidies are inherently problematic. It's problematic to force people to subsidize art that offends their religion or their values. It's also problematic to have the government vet art for messages that might be politically toxic."
And Matt Yglesias sees a "huge advantage" to our system of subsidizing the arts through charitable donations: "[The system] lets you hide the ball. You never hear people getting mad over the fact that tax-exempt contributions are going to fund controversial or offensive art. It’s a pretty good model, and yet nobody ever talks about it, in part because it works precisely through the mechanism of people not talking about it."
Friday, February 11, 2011
Because we say so, that's why (UPDATED)
One way of looking at disputes like the one around the University of Iowa Pollock is as a clash of values.
On one side, you have the Art Lobby -- the people who think it's more important to keep the painting than to have $150 million in additional scholarship money.
On the other side, you have the Education Lobby -- the people who would rather have the scholarship money than the painting.
What the Art Lobby side wants to do, rather than defend, or argue for its position, is to appeal to some meta-principle -- Thou Shalt Not Sell Art -- that settles the debate. They never have to explain why it's better to keep the painting than have the additional scholarship money. They just point to their meta-principle and say, "see, it's unethical to do what you want to do. Case closed."
And then, to take it a step further, they appeal to groups like the AAMD and the AAM, who naturally oppose the sale, but that's because they are part of the Art Lobby side. The AAMD is not some neutral arbiter of the competing claims here. It's one of the claimants.
If you think it's better for the university to keep this painting than to have an additional $150 million in scholarship funds, that's fine. Explain why. Argue for it. Defend it. But appealing to the "authority" of the AAMD adds nothing to the debate.
UPDATE: Right on cue, here they come, adding nothing to the debate.
On one side, you have the Art Lobby -- the people who think it's more important to keep the painting than to have $150 million in additional scholarship money.
On the other side, you have the Education Lobby -- the people who would rather have the scholarship money than the painting.
What the Art Lobby side wants to do, rather than defend, or argue for its position, is to appeal to some meta-principle -- Thou Shalt Not Sell Art -- that settles the debate. They never have to explain why it's better to keep the painting than have the additional scholarship money. They just point to their meta-principle and say, "see, it's unethical to do what you want to do. Case closed."
And then, to take it a step further, they appeal to groups like the AAMD and the AAM, who naturally oppose the sale, but that's because they are part of the Art Lobby side. The AAMD is not some neutral arbiter of the competing claims here. It's one of the claimants.
If you think it's better for the university to keep this painting than to have an additional $150 million in scholarship funds, that's fine. Explain why. Argue for it. Defend it. But appealing to the "authority" of the AAMD adds nothing to the debate.
UPDATE: Right on cue, here they come, adding nothing to the debate.
Thursday, February 10, 2011
"If we have an asset valued at $100 million to $150 million . . ."
". . . are we not better served to have those resources deployed to actually educate Iowa students in the arts?"
The idea of selling the University of Iowa's Pollock has come up again in the state legislature. The chairman of the House Appropriations Committee has introduced a bill calling for the sale, with the sales proceeds going "into an endowment that could provide $5 million a year for scholarships for resident students at the UI majoring in art." Any sale would have to provide that the work "must be on the UI campus for at least three months every four years ..., so students could still use it for educational purposes."
This issue has been raised before, and nothing ever came of it. I suspect the same will be true this time, but, to me, one interesting aspect of the story is the involvement of the state legislature. That is, we're often told that the reason museums can't sell works is that they are held "in trust" for "the public." Presumably, the public in this case is the people of the State of Iowa. But what if that public's elected representatives vote (imagine, to make the case even stronger, unanimously) to sell the work? Or, imagine the matter is put to a direct vote by referendum, and "the public" votes overwhelmingly in favor of the sale? What then? Would it still be wrong to sell? I suppose the argument might be that the museum is protecting the interests of future generations of Iowans, who would be deprived of the opportunity to see the work (except for at least three months out of every four years), but what reason do we have to think future generations wouldn't have similar views to the current generation that just voted overwhelmingly to sell?
In any event, brace yourselves for the howls of outrageous outrage from the chorus of the perpetually outraged.
The idea of selling the University of Iowa's Pollock has come up again in the state legislature. The chairman of the House Appropriations Committee has introduced a bill calling for the sale, with the sales proceeds going "into an endowment that could provide $5 million a year for scholarships for resident students at the UI majoring in art." Any sale would have to provide that the work "must be on the UI campus for at least three months every four years ..., so students could still use it for educational purposes."
This issue has been raised before, and nothing ever came of it. I suspect the same will be true this time, but, to me, one interesting aspect of the story is the involvement of the state legislature. That is, we're often told that the reason museums can't sell works is that they are held "in trust" for "the public." Presumably, the public in this case is the people of the State of Iowa. But what if that public's elected representatives vote (imagine, to make the case even stronger, unanimously) to sell the work? Or, imagine the matter is put to a direct vote by referendum, and "the public" votes overwhelmingly in favor of the sale? What then? Would it still be wrong to sell? I suppose the argument might be that the museum is protecting the interests of future generations of Iowans, who would be deprived of the opportunity to see the work (except for at least three months out of every four years), but what reason do we have to think future generations wouldn't have similar views to the current generation that just voted overwhelmingly to sell?
In any event, brace yourselves for the howls of outrageous outrage from the chorus of the perpetually outraged.
Ascalon Settlement
I mentioned a couple months ago that David Ascalon's VARA lawsuit seemed to have settled. That's now been confirmed. The Pittsburgh Tribune-Review has the story here.
Rosie Burbidge says "this case offers an important reminder to arts owners that just because you own the physical work of art does not necessarily mean that the work is entirely yours to do whatever you choose."
Sergio Muñoz Sarmiento offers "congrats to both parties for the amicable settlement!"
Rosie Burbidge says "this case offers an important reminder to arts owners that just because you own the physical work of art does not necessarily mean that the work is entirely yours to do whatever you choose."
Sergio Muñoz Sarmiento offers "congrats to both parties for the amicable settlement!"
"My problem is that the figure is difficult to justify . . ."
". . . and detracts from the larger discussion about how to preserve, protect, and secure our cultural heritage."
Art Theft Central's Mark Durney on the $6 billion figure often said to represent the scope of the illicit art trade on an annual basis.
Art Theft Central's Mark Durney on the $6 billion figure often said to represent the scope of the illicit art trade on an annual basis.
Tuesday, February 08, 2011
One more time, the public trust is not served by having museums shut down
Paddy Johnson has more on the closing of the Jersey City Museum.
She says I "think the museum should deaccession some of its holdings so it can remain open," which I guess is fair enough, though I would amend that slightly to say that I have no idea how deep their troubles run, and whether deaccessioning could save them from closing, but . . . if it could, how could anyone be against it? Paddy mentions that the museum doesn't have any fundraising staff. What if the deaccessioning proceeds could be used to hire some excellent fundraisers? What if a large enough endowment could be established to keep the museum open, and an overwhelming majority of its collection intact? If that's the case, why not consider it?
After all, there's no reason to be so touchy about the works that would be sold. Think of it as a kind of Humane Society: maybe some of the works can be loved by someone else.
She says I "think the museum should deaccession some of its holdings so it can remain open," which I guess is fair enough, though I would amend that slightly to say that I have no idea how deep their troubles run, and whether deaccessioning could save them from closing, but . . . if it could, how could anyone be against it? Paddy mentions that the museum doesn't have any fundraising staff. What if the deaccessioning proceeds could be used to hire some excellent fundraisers? What if a large enough endowment could be established to keep the museum open, and an overwhelming majority of its collection intact? If that's the case, why not consider it?
After all, there's no reason to be so touchy about the works that would be sold. Think of it as a kind of Humane Society: maybe some of the works can be loved by someone else.
"There’s plenty to go around here."
The NYT's Randy Kennedy reports that LACMA and the Getty have "jointly acquired a huge collection of" Mapplethorpe prints, negatives, and letters. Sounds like a part-gift/part-sale, with the total collection valued at over $30 million. The two museums "will collaborate on exhibitions and publications using both the photographs and archives."
I've said this before, but if it's so wonderful for two museums to share a collection (and it is! it is!), then why are people so worked up about the Fisk-Crystal Bridges deal?
Presumably it would not be problematic for Fisk and Crystal Bridges to team up and acquire an important collection, just as the two museums are doing here.
Then why can't they enter into a sharing arrangement after-the-fact? We end up with two museums co-owning a body of work, just as they will here, plus, for those who can be bothered to care about such things, Fisk avoids having to shut its doors. What is repulsive about that?
I've said this before, but if it's so wonderful for two museums to share a collection (and it is! it is!), then why are people so worked up about the Fisk-Crystal Bridges deal?
Presumably it would not be problematic for Fisk and Crystal Bridges to team up and acquire an important collection, just as the two museums are doing here.
Then why can't they enter into a sharing arrangement after-the-fact? We end up with two museums co-owning a body of work, just as they will here, plus, for those who can be bothered to care about such things, Fisk avoids having to shut its doors. What is repulsive about that?
Thursday, February 03, 2011
Linkage
- The NEA's Rocco Landesman on supply and demand.
- "Clowns everywhere can breathe easier."
- Litigation is in the air in New York.
- A victory for Christie's.
- "An obscure legal dispute that has turned into a full-scale diplomatic feud between the United States and Russia."
- Transforming prisoners into artists.
- Interview with Mark Durney.
- "The public has the right to take pictures of public buildings from public spaces."
- Fake works are a dime a dozen. How about fake Guggenheims?
"So much for the public trust and the public interest."
I can't recommend highly enough this brief essay on deaccessioning in the Broad Streeet Review by Gresham Riley, the former president of the Pennsylvania Academy of the Fine Arts.
It's rhetorically very interesting, a little sneaky even.
He begins by paying homage to "the most important [deaccessioning] guideline," i.e., "the stipulation that the earnings realized from the sale of a work of art must be restricted to the acquisition of other art." "Nothing in the art museum world," he correctly observes, "possesses quite the sacred cow status as this particular guideline; to breach it is to become a pariah."
He says the "essential purpose" of the rule is that it "forces museum boards to distinguish between cultural and financial assets. Objects in the permanent collection must not be treated as simply one set of fungible properties among others."
So far, nothing remarkable. It seems like we're in for yet another lecture about preserving the collection for future generations and blah blah blah.
But then he quickly pivots, noting the "compelling fact" that "art museums are under enormous financial pressure, and how they finance their operations will increasingly call for creative thought." "Within this context," he says, "I believe a fresh look at deaccession is justified."
First of all, he argues, the current rules "fail to accomplish their intended purposes— namely, to protect the public interest and to encourage prospective donors to donate art works to museums. According to this theory, without firm deaccession guidelines, donors will lack confidence in the willingness of museums to keep what is given to them."
"But," he says, "the existing policy is in fact an exercise in smoke and mirrors, providing neither guarantees of public access nor commitments to maintain possession." On the one hand, "because of limited exhibition space, most museums’ collections are consigned to storage." In addition, the current rules "don’t prohibit a museum from selling ...; they merely limit the use of proceeds from the artwork that’s sold."
Wow. Just wow.
He continues: "Nor do the current guidelines place restrictions as to whom an artwork might be sold. There are no prohibitions against selling to private collectors .... Consequently, a museum can unilaterally remove a work of art from the public domain altogether .... So much for the public trust and the public interest."
Remember my Museum Directors Hall of Fame? Gresham Riley just got his own wing.
He concludes by calling for "new, more flexible guidelines" which would allow sales proceeds to be used for "a number of object-related (and more importantly, budget-relieving) activities and staff positions." Like what?
Like: "pay[ing] the salary of a conservator and/or the expenses associated with a conservation laboratory."
Yuck! Repulsive!
Or: "the addition of education professionals to help interpret the collection to the public, or curators to help maintain the collection."
Eww! Stalinesque! Appalling! Horrible! I hereby call on the Deaccession Police to call on the AAMD to sanction Mr. Riley (and anyone he has ever associated with) at once.
The big finale:
"Current deaccession guidelines perpetuate a museum culture in which objects are ends in themselves, more important than their use to educate, to inspire, to stimulate, to empower—even more important than their care and preservation. ... Rethinking deaccession guidelines would not only reduce some of the smoke and mirrors associated with museum operations. It might also stimulate novel ideas about financing museums while legitimately expanding their basic mission."
Like I said: Hall. Of. Fame.
It's rhetorically very interesting, a little sneaky even.
He begins by paying homage to "the most important [deaccessioning] guideline," i.e., "the stipulation that the earnings realized from the sale of a work of art must be restricted to the acquisition of other art." "Nothing in the art museum world," he correctly observes, "possesses quite the sacred cow status as this particular guideline; to breach it is to become a pariah."
He says the "essential purpose" of the rule is that it "forces museum boards to distinguish between cultural and financial assets. Objects in the permanent collection must not be treated as simply one set of fungible properties among others."
So far, nothing remarkable. It seems like we're in for yet another lecture about preserving the collection for future generations and blah blah blah.
But then he quickly pivots, noting the "compelling fact" that "art museums are under enormous financial pressure, and how they finance their operations will increasingly call for creative thought." "Within this context," he says, "I believe a fresh look at deaccession is justified."
First of all, he argues, the current rules "fail to accomplish their intended purposes— namely, to protect the public interest and to encourage prospective donors to donate art works to museums. According to this theory, without firm deaccession guidelines, donors will lack confidence in the willingness of museums to keep what is given to them."
"But," he says, "the existing policy is in fact an exercise in smoke and mirrors, providing neither guarantees of public access nor commitments to maintain possession." On the one hand, "because of limited exhibition space, most museums’ collections are consigned to storage." In addition, the current rules "don’t prohibit a museum from selling ...; they merely limit the use of proceeds from the artwork that’s sold."
Wow. Just wow.
He continues: "Nor do the current guidelines place restrictions as to whom an artwork might be sold. There are no prohibitions against selling to private collectors .... Consequently, a museum can unilaterally remove a work of art from the public domain altogether .... So much for the public trust and the public interest."
Remember my Museum Directors Hall of Fame? Gresham Riley just got his own wing.
He concludes by calling for "new, more flexible guidelines" which would allow sales proceeds to be used for "a number of object-related (and more importantly, budget-relieving) activities and staff positions." Like what?
Like: "pay[ing] the salary of a conservator and/or the expenses associated with a conservation laboratory."
Yuck! Repulsive!
Or: "the addition of education professionals to help interpret the collection to the public, or curators to help maintain the collection."
Eww! Stalinesque! Appalling! Horrible! I hereby call on the Deaccession Police to call on the AAMD to sanction Mr. Riley (and anyone he has ever associated with) at once.
The big finale:
"Current deaccession guidelines perpetuate a museum culture in which objects are ends in themselves, more important than their use to educate, to inspire, to stimulate, to empower—even more important than their care and preservation. ... Rethinking deaccession guidelines would not only reduce some of the smoke and mirrors associated with museum operations. It might also stimulate novel ideas about financing museums while legitimately expanding their basic mission."
Like I said: Hall. Of. Fame.
Wednesday, February 02, 2011
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