Monday, February 24, 2014
"The courts have taken an approach to fair use that we do not believe was originally intended."
The NYT's Patricia Cohen had an interesting piece over the weekend on efforts by photographers' groups to push back against expansive interpretations of fair use. Alfred Steiner thought it misled by failing to "emphasize [the] crucial difference between one copy (artwork) and many copies (movie)." For more on that distinction, see here.
60 Minutes on art forger Wolfgang Beltracchi
You can watch it here. Deborah Solomon and Jillian Steinhauer were unimpressed.
Derek Fincham says "it was a reminder of how little safeguards protect genuine works of art from forgeries." I would say it's a reminder of how little difference there sometimes is between genuine works of art and forgeries.
Derek Fincham says "it was a reminder of how little safeguards protect genuine works of art from forgeries." I would say it's a reminder of how little difference there sometimes is between genuine works of art and forgeries.
Saturday, February 22, 2014
"Bateman said Randolph College’s Maier Museum of Art is not a 'museum' but part of a 'non-profit institution that owns art.'"
"As a result it operates not according to the rules and regulations that govern museums but the fiduciary responsibilities of an institution of higher education, said Bateman."
Bateman is Randolph College's President, and I think he's clearly right. For those interested in this issue of university-owned artworks -- I mean really interested in grappling with the complexities rather than doing the usual Ohmigod Repulsive routine -- I would start with the law review articles mentioned here and here.
It's also interesting to compare Randolph's approach to that taken by the Brandeis administration during the Rose debacle. Brandeis started out by conceding too much rhetorical ground to the Deaccession Police. They thought if we have a "museum," we are bound by their rules. So they came up with what turned out to be a disastrous plan to "close" the Rose. But that put them on the defensive right from the start. Randolph, on the other hand, made the decision to stand up to the deaccession bullies, to refuse to accept their way of framing the debate. As Bateman says in the article linked above: "They [the AAMD and the other deaccession bullies] have a single position and they don’t want anyone to think about these issues in any way other than the way they want you to think about it." I think he just summed up about five years of my blogging on this subject in one sentence.
Bateman is Randolph College's President, and I think he's clearly right. For those interested in this issue of university-owned artworks -- I mean really interested in grappling with the complexities rather than doing the usual Ohmigod Repulsive routine -- I would start with the law review articles mentioned here and here.
It's also interesting to compare Randolph's approach to that taken by the Brandeis administration during the Rose debacle. Brandeis started out by conceding too much rhetorical ground to the Deaccession Police. They thought if we have a "museum," we are bound by their rules. So they came up with what turned out to be a disastrous plan to "close" the Rose. But that put them on the defensive right from the start. Randolph, on the other hand, made the decision to stand up to the deaccession bullies, to refuse to accept their way of framing the debate. As Bateman says in the article linked above: "They [the AAMD and the other deaccession bullies] have a single position and they don’t want anyone to think about these issues in any way other than the way they want you to think about it." I think he just summed up about five years of my blogging on this subject in one sentence.
Friday, February 21, 2014
Their sword's grown old and rusty
The big news this week is that the Corcoran Gallery is giving up the ghost. Carol Vogel has the details.
For now, I'll just say that it's a massive instance of the Ellis Rule -- the deal "ensure[s] that the Corcoran’s art collection would remain in public institutions." So, while the usual suspects will fall over themselves in the usual competition to see who can be THE MOST OUTRAGED by this OUTRAGEOUS OUTRAGEOUSNESS, my initial reaction is that I'm with David Ross: "I agree this is sad, and that the Corcoran has long been a tragic institution, but this is not such a bad outcome."
Or, as Tim Schneider tweeted:
"After firestorm over (now remote) possibility of Detroit Institute of Art having to deaccession/sell parts of their permanent collection, a bit surprised I haven't seen more relief over fact that Corcoran Gallery of Art's collection will stay safe (ie public) w/Natl Gallery. Which isn't to say the whole scenario is good news. It's messy and from a historical standpoint, sad. But it could be worse. Just imagine outrage if announcement was that Corcoran would be selling off works to keep limping forward, recoup losses, or pay creditors."
Yes, imagine the outrage. But is it really better to transfer the entire collection to the National Gallery than to have given them some of the collection in exchange for the cash needed to keep the Corcoran afloat?
Are we sure about that?
For now, I'll just say that it's a massive instance of the Ellis Rule -- the deal "ensure[s] that the Corcoran’s art collection would remain in public institutions." So, while the usual suspects will fall over themselves in the usual competition to see who can be THE MOST OUTRAGED by this OUTRAGEOUS OUTRAGEOUSNESS, my initial reaction is that I'm with David Ross: "I agree this is sad, and that the Corcoran has long been a tragic institution, but this is not such a bad outcome."
Or, as Tim Schneider tweeted:
"After firestorm over (now remote) possibility of Detroit Institute of Art having to deaccession/sell parts of their permanent collection, a bit surprised I haven't seen more relief over fact that Corcoran Gallery of Art's collection will stay safe (ie public) w/Natl Gallery. Which isn't to say the whole scenario is good news. It's messy and from a historical standpoint, sad. But it could be worse. Just imagine outrage if announcement was that Corcoran would be selling off works to keep limping forward, recoup losses, or pay creditors."
Yes, imagine the outrage. But is it really better to transfer the entire collection to the National Gallery than to have given them some of the collection in exchange for the cash needed to keep the Corcoran afloat?
Are we sure about that?
Tuesday, February 18, 2014
"A guard asked the man to put it down, but instead he threw it to the ground, smashing it" (UPDATED)
NYT: Ai Weiwei Vase Is Destroyed by Protester at Miami Museum.
Six thoughts from Ann Althouse.
UPDATE: There's video of the incident.
Six thoughts from Ann Althouse.
UPDATE: There's video of the incident.
Who's Faking Whom?
Just learned of a First
Department decision from November that could wreak some serious havoc on the
world of authentication litigation. The decision is here.
Briefly, Dealer A sells some work to Dealer B and sues for non-payment.
In defense, Dealer B claims (among other things) that “some or all” of the
works are fakes. Dealer A denies this: he says that, during the
period of time Dealer B had possession of the works, “either [Dealer B] or some
other custodian forged the authentic works that [he] originally gave to [Dealer
B].”
The trial court (Justice
Kornreich again)
holds that “the only opinion that can shed any light on the authenticity of the
Returned Works is that of an expert who has examined the originals and the
Returned Works and has the wherewithal to detect a forgery” -- in other words,
an authentication expert who saw the works before they were sold and can look
at them again now. The First Department affirmed. “The motion court
correctly determined that ... the testimony of an expert who viewed the
consigned works before they left [Dealer A] and who can testify that they
were forgeries when they left and were forgeries on their return.” “This,” they
add, “is consistent with how art work and forgeries are identified,
authenticated and detected.” No biggie.
But imagine an ordinary
authentication lawsuit. A collector buys a work from a gallery, with a
warranty of authenticity. Some time later, the collector discovers (let’s
imagine conclusively) that the work is a fake and sues the gallery. The
gallery can now say, “Wait a minute. The Pollock I sold you was
genuine. Yes, this is a fake, but how do we know it’s not a fake created
by you ‘or some other custodian’ in the two years since the work left the
gallery?” Unless the collector can produce an expert who examined the
work before the sale and can say it’s the same as the one he now has in his
possession, he loses. That can’t be right, yet it seems to be what the
case says.
Now, the facts in this First
Department case were kind of odd – Dealer B had passed the works on to another
party, who “had custody of the art for 2 to 6 years” leading up to the
lawsuit – so maybe the intention was to limit it to similar situations where
“chain of custody” is an issue. But again, there is nothing in the
language of the decisions themselves that is so limited. Definitely worth
watching to see how this develops.
Monday, February 17, 2014
“In essence, plaintiffs’ breach of contract cause of action alleges that, with the benefit of hindsight, it appears to have entered into a bad bargain”
I finally got around to reading the decision on the motion to dismiss Ron Perelman’s lawsuit against Gagosian Gallery. I had gotten the impression from the headlines in the press (see for example here, here, here) that it was something of a victory for Perelman, but it turns out to have been a pretty decisive victory for Gagosian.
The court threw out the breach of contract and unjust enrichment claims, as well as the breach of fiduciary duty claim: “plaintiffs’ allegations make clear that they were experienced and sophisticated business investors who entered into negotiated, arm’s-length transactions with defendants, which does not give rise to a fiduciary relationship. … Moreover, plaintiffs’ reliance on the fact that Perelman and Gagosian were friends for 20 years, ‘socialized together,’ were ‘business acquaintances,’ had ‘worked together’ previously and invested together, to establish a fiduciary relationship is unpersuasive.”
All that’s left is the “fraud” claim, which alleges that, as part of a complicated “exchange” transaction, the gallery “knowingly” “overvalued” the works Perelman got back. Apparently the gallery put in some evidence that this was not the case, but “these Invoices are not the type of conclusive documentary evidence upon which the Court generally relies on a pre-answer motion to dismiss.” So the claim survived for now.
For background on the case, here is Felix Salmon in 2012 correctly observing that “you don’t become a fiduciary because you’re friends, or because you’re knowledgeable, or any of those other reasons.” He said the suit was “utterly ridiculous, and will almost certainly get thrown out of court.” Close.
The court threw out the breach of contract and unjust enrichment claims, as well as the breach of fiduciary duty claim: “plaintiffs’ allegations make clear that they were experienced and sophisticated business investors who entered into negotiated, arm’s-length transactions with defendants, which does not give rise to a fiduciary relationship. … Moreover, plaintiffs’ reliance on the fact that Perelman and Gagosian were friends for 20 years, ‘socialized together,’ were ‘business acquaintances,’ had ‘worked together’ previously and invested together, to establish a fiduciary relationship is unpersuasive.”
All that’s left is the “fraud” claim, which alleges that, as part of a complicated “exchange” transaction, the gallery “knowingly” “overvalued” the works Perelman got back. Apparently the gallery put in some evidence that this was not the case, but “these Invoices are not the type of conclusive documentary evidence upon which the Court generally relies on a pre-answer motion to dismiss.” So the claim survived for now.
For background on the case, here is Felix Salmon in 2012 correctly observing that “you don’t become a fiduciary because you’re friends, or because you’re knowledgeable, or any of those other reasons.” He said the suit was “utterly ridiculous, and will almost certainly get thrown out of court.” Close.
Sunday, February 16, 2014
Flagrant egregiousity
A couple of follow-up points on Randolph College's recent sale of a $25 million Bellows. (Not to be confused with the Pennsylvania Academy of the Fine Arts recent sale of a $40 million Hopper. The former is the Worst Thing That's Ever Happened. The latter is nothing for anyone to be concerned about.)
First, I like how Randolph's president deals with the slippery slope objection:
"Randolph’s collection contains significant works, Dr Bateman said, that aren’t up for sale, such as works by Georgia O’Keeffe and Edward Hopper. Asked if the logic of selling off the Bellows shouldn’t concern those afraid that similar arguments could be made to sell the O’Keeffe or the Hopper, Dr Bateman said that wasn’t the case. 'We know how much money we need and it can be done with these [already planned] sales,' he said."
That's a good answer, but what really interests me is: how come we never hear the same question with the "good" kind of deaccessionings? How come no one ever asks if the "logic of selling off the Hopper" shouldn't concern those afraid that similar arguments could be made to sell lots of other masterpieces? I saw some people criticize the Hopper sale, but only on its own merits (just as one could criticize the Randolph sale on its own merits). But you never see anyone criticize sales-to-buy-more-art on slippery slope grounds. That's reserved exclusively for sales where the proceeds are used for other purposes. Strange.
I also wanted to call attention to the statement issued by the AAM on the sale. Here it is, in its entirety:
"The sale of George Bellows’s 'Men of the Docks' by the Maier Museum of Art at Randolph College is a flagrant, egregious violation of our Code of Ethics for Museums, showing total disregard of an important tenet common to the charter of all museums: collections are held in the public trust. And the public’s trust is the coin of the realm for museums. Strict adherence to the highest standards and best practices has made museums of all types among the most trusted sources of information for the American people. And the sale of 'Men of the Docks' threatens that lofty status. Further, the trust of both the public and elected officials at all levels of government has enabled museums to remain largely a self-regulated industry; this action belies that distinction. The 3,500 museum members of the American Alliance of Museums—and especially our 441 college museum members—vigorously protest the sale of a great American artistic treasure."
Is it me, or are they not even trying any more? The "coin of the realm"? What is that supposed to mean in this context? This action belies what distinction? Who is going to be convinced by this kind of rhetoric that didn't already completely agree with their position? What then is the point? It's almost as if they felt like they had to say something so the Deaccession Police couldn't criticize them for not saying anything.
Their statement on the Pennsylvania Academy's Hopper sale was less publicized, so, as a public service, I am reproducing it here:
"The sale of Edward Hopper's 'East Wind Over Weehawken' by the Pennsylvania Academy of the Fine Artse is a flagrant, egregious violation of our Code of Ethics for Museums, showing total disregard of an important tenet common to the charter of all museums: collections are held in the public trust. And the public’s trust is the coin of the realm for museums. Strict adherence to the highest standards and best practices has made museums of all types among the most trusted sources of information for the American people. And the sale of 'East Wind Over Weehawken' threatens that lofty status. Further, the trust of both the public and elected officials at all levels of government has enabled museums to remain largely a self-regulated industry; this action belies that distinction. The 3,500 museum members of the American Alliance of Museums vigorously protest the sale of a great American artistic treasure."
It's the coin of the realm, people. What more do you need to know? You can read the whole statement here.
Oh, one other important distinction between the two sales: the (bad) Randolph sale was to the National Gallery in London, so the work remains in the public domain. The (good) PAFA sale was to an anonymous private buyer.
As usual, it all makes perfect sense.
First, I like how Randolph's president deals with the slippery slope objection:
"Randolph’s collection contains significant works, Dr Bateman said, that aren’t up for sale, such as works by Georgia O’Keeffe and Edward Hopper. Asked if the logic of selling off the Bellows shouldn’t concern those afraid that similar arguments could be made to sell the O’Keeffe or the Hopper, Dr Bateman said that wasn’t the case. 'We know how much money we need and it can be done with these [already planned] sales,' he said."
That's a good answer, but what really interests me is: how come we never hear the same question with the "good" kind of deaccessionings? How come no one ever asks if the "logic of selling off the Hopper" shouldn't concern those afraid that similar arguments could be made to sell lots of other masterpieces? I saw some people criticize the Hopper sale, but only on its own merits (just as one could criticize the Randolph sale on its own merits). But you never see anyone criticize sales-to-buy-more-art on slippery slope grounds. That's reserved exclusively for sales where the proceeds are used for other purposes. Strange.
I also wanted to call attention to the statement issued by the AAM on the sale. Here it is, in its entirety:
"The sale of George Bellows’s 'Men of the Docks' by the Maier Museum of Art at Randolph College is a flagrant, egregious violation of our Code of Ethics for Museums, showing total disregard of an important tenet common to the charter of all museums: collections are held in the public trust. And the public’s trust is the coin of the realm for museums. Strict adherence to the highest standards and best practices has made museums of all types among the most trusted sources of information for the American people. And the sale of 'Men of the Docks' threatens that lofty status. Further, the trust of both the public and elected officials at all levels of government has enabled museums to remain largely a self-regulated industry; this action belies that distinction. The 3,500 museum members of the American Alliance of Museums—and especially our 441 college museum members—vigorously protest the sale of a great American artistic treasure."
Is it me, or are they not even trying any more? The "coin of the realm"? What is that supposed to mean in this context? This action belies what distinction? Who is going to be convinced by this kind of rhetoric that didn't already completely agree with their position? What then is the point? It's almost as if they felt like they had to say something so the Deaccession Police couldn't criticize them for not saying anything.
Their statement on the Pennsylvania Academy's Hopper sale was less publicized, so, as a public service, I am reproducing it here:
"The sale of Edward Hopper's 'East Wind Over Weehawken' by the Pennsylvania Academy of the Fine Artse is a flagrant, egregious violation of our Code of Ethics for Museums, showing total disregard of an important tenet common to the charter of all museums: collections are held in the public trust. And the public’s trust is the coin of the realm for museums. Strict adherence to the highest standards and best practices has made museums of all types among the most trusted sources of information for the American people. And the sale of 'East Wind Over Weehawken' threatens that lofty status. Further, the trust of both the public and elected officials at all levels of government has enabled museums to remain largely a self-regulated industry; this action belies that distinction. The 3,500 museum members of the American Alliance of Museums vigorously protest the sale of a great American artistic treasure."
It's the coin of the realm, people. What more do you need to know? You can read the whole statement here.
Oh, one other important distinction between the two sales: the (bad) Randolph sale was to the National Gallery in London, so the work remains in the public domain. The (good) PAFA sale was to an anonymous private buyer.
As usual, it all makes perfect sense.
Artist Pension Trust After 10 Years
Daniel Grant gives a status report. Some background, from when it was just starting out, here.
"The only way Starbucks will be hurt by this is if it decides to sue rather than laugh"
Kal Raustiala and Chris Sprigman on the legality of "Dumb Starbucks."
Monday, February 10, 2014
"I don’t want to be the judge who has a Picasso destroyed.
Preliminary injunction granted blocking the removal of "a large curtain painted by Pablo Picasso that has decorated the Four Seasons Restaurant since its opening in 1959."
Friday, February 07, 2014
Why do the Deaccession Police hate the British?
Carol Vogel reports today that Randolph College has sold a George Bellows painting to the National Gallery for $25.5 million. I haven't bothered to check, but I'm sure the usual suspects are rending their garments. But as Vogel tells it, it sounds like a pretty good deal all around: "It is the first major American painting to enter the National Gallery’s collection. The acquisition is also the start of a partnership between Randolph and the museum. Curators will go to Randolph to lecture; students from the college will be invited to do internships at the museum; and it is possible, officials at the college said, that from time to time, Randolph will be able to borrow the painting."
Most importantly, the work stays in "the public trust." Or have we decided the British don't count as part of the public?
Most importantly, the work stays in "the public trust." Or have we decided the British don't count as part of the public?
Thursday, February 06, 2014
I think we may need a ruling from the Deaccession Police on this
Here's a fascinating one.
A Portuguese bank owned a bunch of Mirós. "Crippled by debt and management irregularities," the bank was taken over by the Portuguese government, which sought to recoup some of its losses by selling the work.
But aha ... the moment the works became owned by the government, they became "cultural property" that it would be outrageous to sell.
If the bank had sold the works and used the proceeds to pay its creditors (including the government), I assume that would have been non-controversial. But by switching the order around (seizing the works and then attempting to sell), the government boxed itself into a corner.
A Portuguese bank owned a bunch of Mirós. "Crippled by debt and management irregularities," the bank was taken over by the Portuguese government, which sought to recoup some of its losses by selling the work.
But aha ... the moment the works became owned by the government, they became "cultural property" that it would be outrageous to sell.
If the bank had sold the works and used the proceeds to pay its creditors (including the government), I assume that would have been non-controversial. But by switching the order around (seizing the works and then attempting to sell), the government boxed itself into a corner.
"How does someone so capable of protecting his own art interests get taken in by a scam of this magnitude?"
ARTINFO's Rozalia Jovanovic reports on a lawsuit brought by "art dealer and former Wall Street shark Asher Edelman."
The biggest art forgery case in Canadian history?
The keyboardist for the Barenaked Ladies claims to be one of the victims.
Wednesday, February 05, 2014
It's held in the public trust ...
... but we don't want the public to actually get to, you know, see it. Controversy over a MoMA plan for its sculpture garden.
Sunday, February 02, 2014
"Artist Files Suit Over Missing Empire State Building Paintings"
Randy Kennedy has the story in the NYT.
Friday, January 31, 2014
Tuesday, January 28, 2014
"The rescue fund for Detroit pensioners and the Detroit Institute of Arts has gotten a $40-million boost from the W.K. Kellogg Foundation"
More money-putting where mouth is.
I'm liking this new model of dealing with deaccessioning. The next time an institution is in desperate need of cash -- the next National Academy or Fisk or Brandeis -- instead of screeching about how the proposed sale offends their sense of "ethics," people can go ahead and contribute the needed funds. Someone should start a deaccessioning kickstarter.
I'm liking this new model of dealing with deaccessioning. The next time an institution is in desperate need of cash -- the next National Academy or Fisk or Brandeis -- instead of screeching about how the proposed sale offends their sense of "ethics," people can go ahead and contribute the needed funds. Someone should start a deaccessioning kickstarter.
Sunday, January 26, 2014
Jasper Johns Takes The Stand (UPDATED)
In the trial of a former foundry owner "who stands accused of creating at least 13 fake sculptures and selling or trying to sell them." Background here.
UPDATE: A guilty plea in the case.
UPDATE: A guilty plea in the case.
Wednesday, January 22, 2014
"Bottom line: the conversation re: the DIA has turned the corner, but the museum is not home free." (UPDATED)
Judith Dobrzynski summarizes the day's developments in Detroit.
UPDATE: Some thoughts from Nicholas O'Donnell: "[I]t seems unlikely at this point that Orr will even propose an actual sale of the DIA collection, let alone try to go through with it."
UPDATE: Some thoughts from Nicholas O'Donnell: "[I]t seems unlikely at this point that Orr will even propose an actual sale of the DIA collection, let alone try to go through with it."
Tuesday, January 21, 2014
More on Richard Serra and the Fight for Public Art
As a follow up to my post
last week, the following is a letter to the editor from Serra that the Times
declined to publish:
Richard Serra
To The Editor:
Martha Schwendener’s recent article “Shifting His
Tectonic Plates” (January 10) referred to the Federal government’s destruction
of my sculpture “Tilted Arc” and went on to claim, incorrectly, that “in the
aftermath of that fiasco” I stopped fighting for the rights of artists creating
public sculpture. In fact, I waged a
five-year battle against the misrepresentations, false promises and deceptions
of the General Services Administration, and most importantly took my case to
court with the aim of defending the right of artists to make work free from censorship,
defacement or destruction by government agencies. Although I lost the case, with the court
allowing the government to establish a precedent for property rights over free
expression, I have never stopped speaking out for the moral rights of all artists.Richard Serra
Monday, January 20, 2014
Enhancement
The NYT's Graham Bowley had a good piece last week on the practice known as "enhanced hammer" -- where, in addition to waiving the seller's commission, the auction houses are also giving consignors part of the buyer's premium as well. Felix Salmon adds his usual interesting commentary, pointing out that, in a case where the seller gets to keep all of the buyer's premium (as apparently happened with Peter Brant's recent sale of "Balloon Dog"), it opens up the possibility that the seller could be the buyer of his own work: "If Brant was the high bidder, the total cost to him of selling
the work would have been tiny, compared to the benefit he got in terms
of personal reputation and the increased value of other works in his
collection."
Thursday, January 16, 2014
"Even a good-faith purchaser for value cannot acquire title to stolen goods" (UPDATED)
I'm a little late getting to this one, but the Baltimore Museum of Art has prevailed on summary judgment in a custody battle over a Renoir stolen from the museum in 1951. Patricia Cohen has the story here.
UPDATE: Fox Rothschild comments: "This case highlights that provenance is key! ... All buyers of fine are advised to gather as much documentary evidence from the seller at the time of purchase and to keep receipts and any other documentation to show when, where and how the item was acquired in case a dispute over title arises."
UPDATE: Fox Rothschild comments: "This case highlights that provenance is key! ... All buyers of fine are advised to gather as much documentary evidence from the seller at the time of purchase and to keep receipts and any other documentation to show when, where and how the item was acquired in case a dispute over title arises."
"ACA could have accepted the higher price that accompanies certainty of authenticity, but chose instead to accept the risk that the painting was a forgery."
The Second Circuit has affirmed Judge Cederbaum's summary judgment decision in a case involving a fake Milton Avery painting, discussed earlier here. I'll post a link when I find one.
Monday, January 13, 2014
A Way to Save the DIA?
Apparently a group of local and national foundations have formed a human circle around the Detroit Institute to block the sale of any art. Actually, scratch that. They haven't done that at all. What they've done is pledged $330 million towards a deal that would save the art.
I think the technical legal term for this under the bankruptcy statute is Putting Your Money Where Your Mouth Is. Much more effective than simply pounding the table and repeating that museums never ever sell art, it just isn't done.
John Gallagher and Mark Stryker have the story in the Detroit Free Press. They point out that "the pledges do not by themselves mean that the ... DIA art [is] now beyond the reach of creditors. Rather, the commitments are intended and expected to play a part in ... 'an overall balanced settlement of disputes in the bankruptcy.' In other words, there is no deal until all the various claims in the broader bankruptcy case have been settled." More from Randy Kennedy (and others) in the NYT.
One way to look at the proposed deal is as a sale of the collection by the DIA to the foundations ... who then gift it back to the museum. Or maybe as the museum paying to remove the works from the bankruptcy process. I guess the creditors might then argue that the "purchase price" was too much of a bargain and demand more.
I think the technical legal term for this under the bankruptcy statute is Putting Your Money Where Your Mouth Is. Much more effective than simply pounding the table and repeating that museums never ever sell art, it just isn't done.
John Gallagher and Mark Stryker have the story in the Detroit Free Press. They point out that "the pledges do not by themselves mean that the ... DIA art [is] now beyond the reach of creditors. Rather, the commitments are intended and expected to play a part in ... 'an overall balanced settlement of disputes in the bankruptcy.' In other words, there is no deal until all the various claims in the broader bankruptcy case have been settled." More from Randy Kennedy (and others) in the NYT.
One way to look at the proposed deal is as a sale of the collection by the DIA to the foundations ... who then gift it back to the museum. Or maybe as the museum paying to remove the works from the bankruptcy process. I guess the creditors might then argue that the "purchase price" was too much of a bargain and demand more.
On Richard Serra and the Fight for Public Art (UPDATED)
The NYT's Martha Schwendener had a review of (our client) Richard Serra’s current show at Gagosian Gallery in New York. She’s of course entitled to her aesthetic opinions, but the assertion that Serra hasn’t done enough to “fight for the rights of artists creating public sculpture” is just bizarre. Greg Allen has a great response here. For those interested in the Tilted Arc controversy -- and Serra’s related fight for the rights of artists creating public sculpture -- this is a good place to start.
UPDATE: More from Sergio Muñoz Sarmiento.
UPDATE: More from Sergio Muñoz Sarmiento.
Thursday, January 09, 2014
"An experimental printmaking studio can move ahead with part of its lawsuit against a prominent Manhattan abstract painter based on a dispute arising from a collaboration of new artwork, a Manhattan State Supreme Court judge has ruled." (UPDATED)
The artist is Christopher Wool. The story is here. The decision is here [$]. Straightforward application of the statute of frauds.
UPDATE: Laura Gilbert has more in The Art Newspaper.
UPDATE: Laura Gilbert has more in The Art Newspaper.
Monday, January 06, 2014
Thursday, January 02, 2014
Who can keep track at this point?
In The Art Newspaper, Laura Gilbert says the number of Knoedler lawsuits now totals eight.
"In fact, all these allegations are so patently inadequate that the court can only conclude that they were brought solely for the purposes of harassment or embarrassment, without any consideration of their legal sufficiency."
Catching up on some pre-holiday news, I see that Justice Kornreich was really unimpressed with the Calder estate's lawsuit against Klaus Perls's estate: "plaintiffs are attempting to litigate issues that necessarily stretch back decades without any personal knowledge or contemporaneous records, where nearly all of the people who had personal knowledge of the facts are dead. Rarely has the court encountered a better justification for the statute of limitations."
She had little patience for all the stuff that got commentators excited about the case, calling the allegations "an incoherent stew of irrelevance and innuendo": "Briefly, allegations of tax fraud by defendants are the sole concern of the United States government and have nothing whatsoever to do with this case. Any curiosity in the Perls' method of keeping their own business records is immaterial, as there is no allegation that the estate ever relied on those records for any purpose. That Klaus Perls may have deposited some of the proceeds from the sale of Calder works into a Swiss bank account does not amount to fraud against plaintiffs, nor does it give plaintiffs the right to see the records of that account. That Klaus never disclosed to the estate that Calder also maintained a Swiss bank account is also immaterial, as it was not his obligation to do so."
The decision is here. The New York Times is here. Judith Dobrzynski says, so far, she's with the judge. Lee Rosenbaum was skeptical from the start.
She had little patience for all the stuff that got commentators excited about the case, calling the allegations "an incoherent stew of irrelevance and innuendo": "Briefly, allegations of tax fraud by defendants are the sole concern of the United States government and have nothing whatsoever to do with this case. Any curiosity in the Perls' method of keeping their own business records is immaterial, as there is no allegation that the estate ever relied on those records for any purpose. That Klaus Perls may have deposited some of the proceeds from the sale of Calder works into a Swiss bank account does not amount to fraud against plaintiffs, nor does it give plaintiffs the right to see the records of that account. That Klaus never disclosed to the estate that Calder also maintained a Swiss bank account is also immaterial, as it was not his obligation to do so."
The decision is here. The New York Times is here. Judith Dobrzynski says, so far, she's with the judge. Lee Rosenbaum was skeptical from the start.
Tuesday, December 24, 2013
"The lawsuit claims the gallery’s conduct is 'self-dealing that can only be described as Byzantine.'"
Daniel Schnapp has news of a lawsuit by Michael Ovitz against Perry Rubinstein Gallery.
Saturday, December 21, 2013
"Ms. Sonnabend’s name is now dutifully listed among the founders in the museum’s lobby."
Holland Cotter explains how MoMA's new Sonnabend show is in part "a byproduct of legal hassles":
"[Rauschenberg's] 'Canyon' plays a major role here. The show revolves around it in a very
basic way. Because it incorporates the remains of a bald eagle, an
endangered species, the work could not be sold. When Sonnabend died and
her collection was appraised for tax purposes, her heirs ... valued the
unmarketable 'Canyon' at zero; the Internal Revenue Service, however,
estimated that it was worth $65 million and was prepared to tax the estate accordingly. A deal was struck. If the piece was donated to a museum, the estate tax
on it would be dropped. Both the Met and MoMA badly wanted it, and
Sonnabend’s heirs made conditions for a gift. The receiving institution would be required to mount an exhibition in
Sonnabend’s honor and inscribe her name in the museum’s list of founding
donors."
"The elephant labored and produced a mouse."
That's how one defense lawyer summed up the result in the strange, "self-defeating" breach of confidentiality suit brought by Marguerite Hoffman. The jury awarded her $500,000. "Hoffman’s lead attorney had suggested a figure as high as $22.4 million in closing arguments," according to The Dallas Morning News. I never really understood the damages theory in the case (among other things). The one thing that seems clear is that many more people know about Hoffman's sale than would have had the case not been brought.
"The ownership of the artwork has been fiercely contested during a three-week trial in which Fawcett's final wishes and her relationship with O'Neal were dissected."
Ryan O'Neal has won possession of a Warhol portrait of Farrah Fawcett.
Oh the horror
I picked a good week to be busy with the day job because I was able to avoid the spectacle of the usual suspects reacting to the issuance of Christie's final report on the value of certain works in the DIA's collection. Some merely threw up, but others fainted and had to be revived with smelling salts. Still others remain in their beds, unable to go on in a world where values are assigned to artworks. It's just too much to bear. (This aversion to ever valuing art explains the well-known practice of museums not to insure their collections.)
In any case, if you can handle it, here is a report from Mark Stryker in the Detroit Free Press. Here is Randy Kennedy in the Times. The report itself is here. Be strong.
In any case, if you can handle it, here is a report from Mark Stryker in the Detroit Free Press. Here is Randy Kennedy in the Times. The report itself is here. Be strong.
Tuesday, December 17, 2013
The Jenack Decision
Was running around today, but the big news was that the Court of Appeals issued its decision in the Jenack case. The decision is here. Tons of coverage, including Graham Bowley in the NYT, Laura Gilbert in The Art Newspaper, and Nicholas O'Donnell at The Art Law Report. The bottom line, as Gilbert puts it, is that the court "reversed an earlier decision that had alarmed auctioneers and those in
the trade because, if upheld, it could have required them to disclose
sellers’ identities" if they wanted to create a binding contract. A few quick thoughts:
1. Footnote 10 seems to vindicate the Olsoff Interpretation -- that the lower court decision was "narrow and technical" and "deal[t] only with the evidence that is required if an auction purchaser defaults." The footnote says: "Of course, if Jenack had other written documentation of this transaction that provided the seller's name, that certainly would satisfy the [statute of frauds], but there is no such documentation in the record" (my emphasis). Of course!
2. Though I think the decision is ultimately the right one, there's still something odd about the statutory interpretation the court employs to get there. The relevant statutory provision says that, in the case of a sale at public auction, the statute of frauds can be satisfied if, at the time of sale, the auctioneer "enters in a sale book," among other information, (a) "the name of the purchaser" and (b) "the name of the person on whose account the sale was made." But, says the court, since "it is well settled that an auctioneer serves as a consignor's agent," the relevant sale book (or "clerking sheet") provided "the name of the person on whose account the sale was made" by listing the name of the auctioneer (Jenack). But if that's the case, it seems the court has read prong (b) right out of the statute: the provision at issue only applies to sales at public auction -- but since the auctioneer is (always) the consignor's agent, prong (b) will always, by definition, be satisfied. The court has redrafted the statute to say only the buyer's name must be entered in the sale book.
3. The main sense you get, reading the decision, was that the court felt like the buyer here was getting away with something -- that he was "using the Statute of Frauds as a means of evading a just obligation" -- and they just weren't going to let him do that. Sometimes that's what it comes down to.
1. Footnote 10 seems to vindicate the Olsoff Interpretation -- that the lower court decision was "narrow and technical" and "deal[t] only with the evidence that is required if an auction purchaser defaults." The footnote says: "Of course, if Jenack had other written documentation of this transaction that provided the seller's name, that certainly would satisfy the [statute of frauds], but there is no such documentation in the record" (my emphasis). Of course!
2. Though I think the decision is ultimately the right one, there's still something odd about the statutory interpretation the court employs to get there. The relevant statutory provision says that, in the case of a sale at public auction, the statute of frauds can be satisfied if, at the time of sale, the auctioneer "enters in a sale book," among other information, (a) "the name of the purchaser" and (b) "the name of the person on whose account the sale was made." But, says the court, since "it is well settled that an auctioneer serves as a consignor's agent," the relevant sale book (or "clerking sheet") provided "the name of the person on whose account the sale was made" by listing the name of the auctioneer (Jenack). But if that's the case, it seems the court has read prong (b) right out of the statute: the provision at issue only applies to sales at public auction -- but since the auctioneer is (always) the consignor's agent, prong (b) will always, by definition, be satisfied. The court has redrafted the statute to say only the buyer's name must be entered in the sale book.
3. The main sense you get, reading the decision, was that the court felt like the buyer here was getting away with something -- that he was "using the Statute of Frauds as a means of evading a just obligation" -- and they just weren't going to let him do that. Sometimes that's what it comes down to.
Monday, December 16, 2013
Resale Royalty Report
The Copyright Office has issued its long-awaited report on resale royalties. You can read it here. The NYT's Patricia Cohen has a brief story here. Art in America's Tracy Zwick is here (I'm quoted in that one). The Art Newspaper's Julia Halperin is here. Judith Dobrzynski comments here ("Still, it remains very unclear whether Nadler’s bill can get through Congress — or even get on the schedule").
Sunday, December 15, 2013
Ann Freedman Defamation Settlement
Laura Gilbert has the story in The Art Newspaper: "The suit was based on a New York magazine article published in
August in which Grassi criticised Freedman’s due diligence in
researching a group of Abstract Expressionist paintings that turned out
to be fakes. As part of the settlement, Grassi retracted his statements." Background here.
Holland Cotter has the answer for Detroit
Here it is: "If it proves that the worst seems about to happen, the art world should
get itself out to Detroit en masse and put its communal spirit to good
use: Form a human circle around the building and, in one voice, just say
no."
That should work.
Earlier in the same article, he had noted: "Like all insular communities, the art world is a consensus culture. Week after week, the same people say the same things about the same shows."
Yes, they do.
That should work.
Earlier in the same article, he had noted: "Like all insular communities, the art world is a consensus culture. Week after week, the same people say the same things about the same shows."
Yes, they do.
Wednesday, December 11, 2013
"The deal would raise roughly $500 million from a consortium of national and local charitable foundations and funnel the money into retiree pensions on behalf of the value of the art at the DIA." (UPDATED)
A grand bargain in Detroit?
UPDATE: The Art Market Monitor says the discussions are "a reminder to the shrieking and fretting arts writers who framed the issue as a moral cause when it was a political fight between various Detroit-area constituencies."
And applause from the DIA.
UPDATE: The Art Market Monitor says the discussions are "a reminder to the shrieking and fretting arts writers who framed the issue as a moral cause when it was a political fight between various Detroit-area constituencies."
And applause from the DIA.
Tuesday, December 10, 2013
Morel v. AFP: How The Case Was Won (UPDATED)
Find out next Monday.
UPDATE: You'll have to wait a little longer to find out. I'm told the panel has been postponed. Date TBD.
UPDATE: You'll have to wait a little longer to find out. I'm told the panel has been postponed. Date TBD.
Monday, December 09, 2013
"It’s pretty hard to see how a market which has doubled in a decade can be considered to be 'tepid' and 'in a doldrums'" (UPDATED)
Felix Salmon goes to town on the James Stewart state-of-the-art-market piece I mentioned over the weekend. The Art Market Monitor identifies the piece's "most serious" failure:
"The crux of Stewart’s complaint is that not all works are selling at tremendous prices. But the necessary ingredient of a healthy market is discrimination. If all works sell well, there’s no market just a mad rush to acquire an undifferentiated mass of work. And that would be the worst sign of all for art."
UPDATE: Further thoughts from Kathryn Tully at Forbes.com.
"The crux of Stewart’s complaint is that not all works are selling at tremendous prices. But the necessary ingredient of a healthy market is discrimination. If all works sell well, there’s no market just a mad rush to acquire an undifferentiated mass of work. And that would be the worst sign of all for art."
UPDATE: Further thoughts from Kathryn Tully at Forbes.com.
Saturday, December 07, 2013
Is the art market really going through the roof?
James B. Stewart says no. Jim Cramer says it's a "brilliant piece." Marion Maneker says not so much: "Stewart is sadly pedestrian in his analysis. Makes you wonder how much else he's gotten disastrously wrong."
"If the defendants are found liable, some legal experts say, it could have broad implications for the art world by threatening to turn such confidentiality agreements into restrictions or even prohibitions of resales."
The Wall Street Journal has an update on Marguerite Hoffman's strange, "self-defeating" lawsuit for breach of a confidentiality provision in an agreement for a Rothko she sold. The trial starts in Dallas next week.
The agreement provided that the parties would makes "maximum effort to keep all aspects of this transaction confidential," and the claim is that the buyer breached that promise, not by talking about the transaction to anyone, but instead by selling the work at auction, where, although "the Sotheby's catalog and website didn't name Mrs. Hoffman as a prior owner," the "publicity surrounding the auction ... outed her as a previous seller."
The agreement provided that the parties would makes "maximum effort to keep all aspects of this transaction confidential," and the claim is that the buyer breached that promise, not by talking about the transaction to anyone, but instead by selling the work at auction, where, although "the Sotheby's catalog and website didn't name Mrs. Hoffman as a prior owner," the "publicity surrounding the auction ... outed her as a previous seller."
Thursday, December 05, 2013
Speaking of removing art from the market
We know that museums themselves would never do anything as
"grim
and venal" as "putting
a pricetag on," or "monetizing,"
art.
That would never happen.
Wait ... hold on a second. This just in:
the Pennsylvania Academy of Fine Arts
just sold a Hopper for $40 million.
Tough break for PAFA. I guess this will lead
to its dissolution, a kind of nonprofit
controlled liquidation, if you will. Donors will stop
giving. And let's hope the surrounding counties hadn't agreed to a special tax for its benefit
because, if so, man have
they blown that.
Anyway, back to Detroit. What I don't get is why the creditors can't understand that MUSEUMS DO NOT SELL ART. It just isn't done. It's grim and venal and simply doesn't happen. What, I wonder, could ever give anyone the opposite idea?
Anyway, back to Detroit. What I don't get is why the creditors can't understand that MUSEUMS DO NOT SELL ART. It just isn't done. It's grim and venal and simply doesn't happen. What, I wonder, could ever give anyone the opposite idea?
Philip Kennicott has an idea for "removing as much art as possible from the market"
"Would an art easement work, in which museums sold the right to sell their art, but held on to the art itself?"
Who exactly would pay them for "the right to sell their art" (without getting the art itself)?
Who exactly would pay them for "the right to sell their art" (without getting the art itself)?
Wednesday, December 04, 2013
The Day's DIA
Today's big Detroit news was that Christie's finished the appraisal that people have been waiting for.
Two points for now.
A lot of the press coverage is giving the impression that the entire collection was valued at under $1 billion. This Washington Post article, for instance, under the headline "Detroit Institute of Arts works worth less than thought, surprising many," says:
"Some thought the Detroit Institute of Arts collection — which includes Van Gogh, Tintoretto and Rembrandt works, among others — could be worth upward of $8 billion, but city manager Kevyn Orr told the Free Press that Christie’s estimate for the works started below $1 billion."
Or here's CNNMoney. The headline: "Detroit's art worth $452 million to $866 million." The lead:
"Detroit's city-owned art collection is worth between $452 million and $866 million, far less than most expected, according to a preliminary estimate by Christie's auction house."
But that's not true. As Randy Kennedy's NYT story correctly points out, "Christie’s examination was limited to works that were bought entirely or in part with city funds .... So the appraisal covers only a small part of the collection in terms of numbers — less than 5 percent of the museum’s 66,000 works." He adds that "art experts enlisted by The Detroit Free Press this year to conduct a quick, unofficial appraisal had said that 38 of the museum’s masterpieces alone would be worth at least $2.5 billion in the current art market." (Mark Stryker notes that only 6 of those 38 were included in Christie's appraisal.)
So this appraisal doesn't tell us what the value of "the collection" is.
The second thing I wanted to mention is that the museum seems to have settled on its talking points. From Kennedy's article:
"The museum’s director, Graham W. J. Beal, has said that any sale of art will most likely lead to the museum’s dissolution; donors would stop giving, and the museum will lose a crucial tax stream established last year by surrounding counties to provide the museum with badly needed operating revenue."
First there's the sky-is-falling business again. The sale of any of the art will lead to the museum's dissolution. Any of the art. (Because, as we all know, museums never ever under any circumstances sell art. Any of it.) But why would it lead to dissolution? Presumably for the two reasons that come after the semicolon: (1) donors would stop giving and (2) the museum will lose the tax revenue from last year's millage.
Let's start with the second one. As I've said before, they don't have to lose the millage. If it happens, that would just be a punishment imposed by the surrounding counties. (Also known as Kicking Someone When They're Down.) More importantly, the millage is supposed to bring in $23 million a year for 10 years. The city could in theory decide to sell $460 million worth of art (settle down, not advocating it, just making a point) and "replace" the $230 million in millage moneys and still have another $230 million left over. There would be no "dissolution" of the museum. So: stop.
On the other point, I know I'm missing the deaccession outrage gene, but it just completely escapes me. If the city comes through this desperate, horrific process and, at the end of the day, the museum remains standing but in a somewhat diminished capacity -- say it's 90 or 95% of what it was pre-bankruptcy -- are we supposed to think that the response of potential donors is going to be hell no, I'm not donating anything to that museum. If the city goes through a Chapter 9 bankruptcy again, they may sell the work I donated! In what world does that make any sense? Particularly since, even in the midst of this desperate, horrific, unprecedented process, the city has bent over backwards (to this point anyway) to look only at works that were not donated. (Again, "Christie’s examination was limited to works that were bought entirely or in part with city funds.") If the city survives this and comes back to life, wouldn't donors be flocking to help the museum? I find the whole thing just baffling.
As I've said before, send better talking points.
Two points for now.
A lot of the press coverage is giving the impression that the entire collection was valued at under $1 billion. This Washington Post article, for instance, under the headline "Detroit Institute of Arts works worth less than thought, surprising many," says:
"Some thought the Detroit Institute of Arts collection — which includes Van Gogh, Tintoretto and Rembrandt works, among others — could be worth upward of $8 billion, but city manager Kevyn Orr told the Free Press that Christie’s estimate for the works started below $1 billion."
Or here's CNNMoney. The headline: "Detroit's art worth $452 million to $866 million." The lead:
"Detroit's city-owned art collection is worth between $452 million and $866 million, far less than most expected, according to a preliminary estimate by Christie's auction house."
But that's not true. As Randy Kennedy's NYT story correctly points out, "Christie’s examination was limited to works that were bought entirely or in part with city funds .... So the appraisal covers only a small part of the collection in terms of numbers — less than 5 percent of the museum’s 66,000 works." He adds that "art experts enlisted by The Detroit Free Press this year to conduct a quick, unofficial appraisal had said that 38 of the museum’s masterpieces alone would be worth at least $2.5 billion in the current art market." (Mark Stryker notes that only 6 of those 38 were included in Christie's appraisal.)
So this appraisal doesn't tell us what the value of "the collection" is.
The second thing I wanted to mention is that the museum seems to have settled on its talking points. From Kennedy's article:
"The museum’s director, Graham W. J. Beal, has said that any sale of art will most likely lead to the museum’s dissolution; donors would stop giving, and the museum will lose a crucial tax stream established last year by surrounding counties to provide the museum with badly needed operating revenue."
First there's the sky-is-falling business again. The sale of any of the art will lead to the museum's dissolution. Any of the art. (Because, as we all know, museums never ever under any circumstances sell art. Any of it.) But why would it lead to dissolution? Presumably for the two reasons that come after the semicolon: (1) donors would stop giving and (2) the museum will lose the tax revenue from last year's millage.
Let's start with the second one. As I've said before, they don't have to lose the millage. If it happens, that would just be a punishment imposed by the surrounding counties. (Also known as Kicking Someone When They're Down.) More importantly, the millage is supposed to bring in $23 million a year for 10 years. The city could in theory decide to sell $460 million worth of art (settle down, not advocating it, just making a point) and "replace" the $230 million in millage moneys and still have another $230 million left over. There would be no "dissolution" of the museum. So: stop.
On the other point, I know I'm missing the deaccession outrage gene, but it just completely escapes me. If the city comes through this desperate, horrific process and, at the end of the day, the museum remains standing but in a somewhat diminished capacity -- say it's 90 or 95% of what it was pre-bankruptcy -- are we supposed to think that the response of potential donors is going to be hell no, I'm not donating anything to that museum. If the city goes through a Chapter 9 bankruptcy again, they may sell the work I donated! In what world does that make any sense? Particularly since, even in the midst of this desperate, horrific, unprecedented process, the city has bent over backwards (to this point anyway) to look only at works that were not donated. (Again, "Christie’s examination was limited to works that were bought entirely or in part with city funds.") If the city survives this and comes back to life, wouldn't donors be flocking to help the museum? I find the whole thing just baffling.
As I've said before, send better talking points.
Tuesday, December 03, 2013
"Many legal specialists and government officials say they expect Detroit will be found eligible for bankruptcy protection." (UPDATED 5X)
Big day in the Detroit bankruptcy proceeding.
UPDATE: It's on. More later.
UPDATE 2: The Detroit Free Press's Mark Stryker on what it could mean for the DIA:
"In announcing the city of Detroit is eligible for bankruptcy, Judge Steven Rhodes created a benchmark for selling city assets, including art, but did not rule on whether he would allow the sale of treasures at the Detroit Institute of Arts. Rhodes said that when deciding whether to sell any asset, the city 'must take extreme care that the asset is truly unnecessary in carrying out its mission.' Rhodes also said that a one-time infusion of cash from the sale of city assets would not solve Detroit’s insolvency. Rhodes, who mentioned the DIA by name, did not expressly remove the art from possible sale."
More later!
UPDATE 3: Here's the New York Times story. The takeaway: "The judge made it clear that public employee pensions were not protected in a federal Chapter 9 bankruptcy, even though the Michigan Constitution expressly protects them. 'Pension benefits are a contractual right and are not entitled to any heightened protection in a municipal bankruptcy,' he said."
UPDATE 4: Here is a sword-rattling tatement from the DIA: "The DIA remains hopeful that the Emergency Manager will recognize the City's fiduciary duty to protect the museum art collection for future generations and that he will abide by the Michigan Attorney General's opinion that the City holds the art collection in trust and cannot use it to satisfy City obligations. If the art is placed in jeopardy, the DIA remains committed to take action to preserve this cultural birthright for future."
UPDATE 5: Finally (for tonight), here is Randy Kennedy in the Times on what the ruling means for the art specifically. DIA director Graham Beal does his sky-is-falling routine, claiming that the sale of any art (even 8% of the collection) would lead to a "nonprofit controlled liquidation," whatever that is.
UPDATE: It's on. More later.
UPDATE 2: The Detroit Free Press's Mark Stryker on what it could mean for the DIA:
"In announcing the city of Detroit is eligible for bankruptcy, Judge Steven Rhodes created a benchmark for selling city assets, including art, but did not rule on whether he would allow the sale of treasures at the Detroit Institute of Arts. Rhodes said that when deciding whether to sell any asset, the city 'must take extreme care that the asset is truly unnecessary in carrying out its mission.' Rhodes also said that a one-time infusion of cash from the sale of city assets would not solve Detroit’s insolvency. Rhodes, who mentioned the DIA by name, did not expressly remove the art from possible sale."
More later!
UPDATE 3: Here's the New York Times story. The takeaway: "The judge made it clear that public employee pensions were not protected in a federal Chapter 9 bankruptcy, even though the Michigan Constitution expressly protects them. 'Pension benefits are a contractual right and are not entitled to any heightened protection in a municipal bankruptcy,' he said."
UPDATE 4: Here is a sword-rattling tatement from the DIA: "The DIA remains hopeful that the Emergency Manager will recognize the City's fiduciary duty to protect the museum art collection for future generations and that he will abide by the Michigan Attorney General's opinion that the City holds the art collection in trust and cannot use it to satisfy City obligations. If the art is placed in jeopardy, the DIA remains committed to take action to preserve this cultural birthright for future."
UPDATE 5: Finally (for tonight), here is Randy Kennedy in the Times on what the ruling means for the art specifically. DIA director Graham Beal does his sky-is-falling routine, claiming that the sale of any art (even 8% of the collection) would lead to a "nonprofit controlled liquidation," whatever that is.
Saturday, November 30, 2013
“It might take us a while but we will get this [passed]."
A resale royalty bill will be re-introduced in Congress in the new year.
A Deaccessioning Solution
In a review of a William Kentridge piece now up at the Met, Holland Cotter says:
"The piece ... has recently been acquired jointly by the Metropolitan and the San Francisco Museum of Modern Art. ... [S]urely the nature of the purchase establishes a salutary practical model, in a time when cash is tight and art prices sky-high, for institutional resource-sharing in the future."
As I've said before, if it's a salutary thing for Museum A and Museum B to buy work jointly, then it's got to be a salutary thing for Museum A, in a time when cash is tight, to sell a 50% interest in a work (or works) to Museum B. The result is exactly the same. It's a kind of modified Ellis Rule.
"The piece ... has recently been acquired jointly by the Metropolitan and the San Francisco Museum of Modern Art. ... [S]urely the nature of the purchase establishes a salutary practical model, in a time when cash is tight and art prices sky-high, for institutional resource-sharing in the future."
As I've said before, if it's a salutary thing for Museum A and Museum B to buy work jointly, then it's got to be a salutary thing for Museum A, in a time when cash is tight, to sell a 50% interest in a work (or works) to Museum B. The result is exactly the same. It's a kind of modified Ellis Rule.
Wednesday, November 27, 2013
"The court gave short shrift to any nonmonetary interests, which might seem like an odd result in a moral rights case"
Rebecca Tushnet on the 5Pointz decision: "This VARA dispute makes some interesting moves on
irreparable harm."
Hey, they're just looking out for the public trust
NYT: "Sicily’s regional government has set a travel ban on 23 of the island’s
most important artworks, a decree that says such works, many of which
were recently lent to museums in the United States and elsewhere, should
not circulate abroad except under extraordinary circumstances."
Tuesday, November 26, 2013
"In the filing, the creditors argued that Orr is not moving aggressively enough to monetize the art." (UPDATED)
The battle for Detroit's art heats up.
UPDATE: More from Nicholas O'Donnell: "The upshot ... is that the court cannot compel the sale of DIA’s collection. This cannot be repeated enough, since coverage continues to miss that point. The only real question is if the city resolves to sell the collection, can the museum stop it? The view here is that it cannot, but expect much more ink to be spilled in court on that issue."
UPDATE: More from Nicholas O'Donnell: "The upshot ... is that the court cannot compel the sale of DIA’s collection. This cannot be repeated enough, since coverage continues to miss that point. The only real question is if the city resolves to sell the collection, can the museum stop it? The view here is that it cannot, but expect much more ink to be spilled in court on that issue."
Monday, November 25, 2013
"I don’t think there’s a Pollock expert in the world that would look at that painting and agree it was a Pollock." (UPDATED)
Patricia Cohen in the NYT on an authentication dispute involving Pollock mistress Ruth Kligman. There was a long Vanity Fair piece on this about a year ago.
UPDATE: ARCAblog rounds up some reactions.
UPDATE: ARCAblog rounds up some reactions.
Bubble puzzles
Matthew Yglesias in Slate (writing not about the art market, but the same question arises there, I think): "A bubble is most likely to be occurring when conventional wisdom says there is no such bubble."
"If it does come to pass that the Wolkoffs find themselves on the hook for whatever absurd figure a lawyer convinces a compliant New York jury to cough up, it will be a legal outrage."
The New York Post editorial board is not impressed with Judge Block's decision in the 5Pointz case: "It says much about the dismal state of property rights in this city that the judge who authorized the Wolkoffs’ plans to demolish their building practically invited those who had painted on it to file in civil court for damages for the loss of their artistic works. He did so by suggesting that the US Visual Artists Rights Acts may well protect the 'ephemeral nature' of graffiti on a building. Translation: The owners may have to pay damages for painting their own building!"
Friday, November 22, 2013
BREAKING: $1.2M Jury Verdict in Morel v. AFP
Reports Mark Jaffe. Eric Goldman was right that AFP was going to be writing a check to Morel some day.
"Many commentators ... have implied that the case is a slam dunk for Jenack, which is just not so."
Nicholas O'Donnell on the oral argument at the Court of Appeals in the Jenack case: "The view here is that the buyer (Rabizadeh) got the better of the argument, but one has to wonder how the equities will weigh on the court in a case where the winning bidder simply repudiated a voluntary transaction."
Thursday, November 21, 2013
The Knoedler List
The Art Newspaper has the list of Knoedler buyers, what they paid, and what the gallery paid Rosales. Greg Allen tweets: "Knoedler paid Rosales $1m for that 1949 Newman, then shopped it to a museum for $18m. #theyknew."
Wednesday, November 20, 2013
5Pointz Opinion (UPDATED 2X)
The Judge issued his decision -- a really interesting one -- in the 5Pointz VARA case today. I'll post a link when I find one. [UPDATE: Here we go.]
He begins by noting that "[t]his marks the first occasion that a court has had to determine whether the work of [a graffiti] artist -- given its ephemeral nature -- is worthy of any protection under the law" (p. 2).
He ends up answering yes ... in theory ... VARA "makes no distinction between temporary and permanent works of visual art" (p. 25), it "protects even temporary works from destruction" (p. 26). He left open the question whether the works qualified as works of "recognized stature" for purposes of VARA protection (a question "best left for a fuller exploration of the merits after the case has been properly prepared for trial, rather than at the preliminary injunction stage," p. 24).
But he still denied the injunction, because the artists couldn't show irreparable harm: "plaintiffs would be hard-pressed to contend that no amount of money would compensate them for their paintings":
"[P]aintings generally are meant to be sold. Their value is invariably reflected in the money they command in the marketplace. Here, the works were painted for free, but surely the plaintiffs would gladly have accepted money from the defendants to acquire their works" (p. 25).
He adds that "the ineluctable factor which precludes ... injunctive relief" was "the transient nature of the plaintiffs' works." They "always knew that the buildings were coming down." "Particularly disturbing is that many of the paintings were created as recently as this past September, just weeks after the City Planning Commission gave final approval to the defendants' building plans. In a very real sense, plaintiffs' have created their own hardships" (p. 26).
So the transient nature of the works precludes injunctive relief ... but it doesn't preclude "potentially significant monetary damages if it is ultimately determined after trial that the plaintiffs' works were of 'recognized stature'" (p. 27). And here's where it gets really interesting.
He closes by noting that the City Planning Commission required 3,300 square feet of the exterior of the new buildings to be made available for art. But the defendants, he says, "can do more":
"They can make much more space available, and give written permission to Cohen to continue to be the curator so that he may establish a large, permanent home for quality work by him and his acclaimed aerosol artists. For sure, the Court would look kindly on such largesse when it might be required to consider the issue of monetary damages; and 5Pointz, as reincarnated, would live" (p. 27).
Is it me, or do you get the feeling he's trying to tell them something?
UPDATE: Foley Hoag on the moral of the story: "[T]his case is a cautionary tale for artists and property owners alike. ... Given a slightly different fact pattern, the artists might have successfully blocked demolition. If an artist and a property owner contemplate a piece of artwork that will be intrinsically connected to a building, it is in everyone’s best interest to actively address that fact before the art is created. The parties could agree to a VARA waiver, find a way for the art to be detachable, or make the art a 'work for hire,' in which case the artist would receive compensation, but VARA protections would not attach. If the parties can’t agree on one of those options, it might be best for the artist to find a different canvas, and for the owner to find a different artist. Otherwise, artists risk having to combat unexpected attempts to demolish their work, and property owners risk having their rights in their property limited for the duration of the artist’s life."
UPDATE 2: Sergio Muñoz Sarmiento comments here, fixating on fixation.
He begins by noting that "[t]his marks the first occasion that a court has had to determine whether the work of [a graffiti] artist -- given its ephemeral nature -- is worthy of any protection under the law" (p. 2).
He ends up answering yes ... in theory ... VARA "makes no distinction between temporary and permanent works of visual art" (p. 25), it "protects even temporary works from destruction" (p. 26). He left open the question whether the works qualified as works of "recognized stature" for purposes of VARA protection (a question "best left for a fuller exploration of the merits after the case has been properly prepared for trial, rather than at the preliminary injunction stage," p. 24).
But he still denied the injunction, because the artists couldn't show irreparable harm: "plaintiffs would be hard-pressed to contend that no amount of money would compensate them for their paintings":
"[P]aintings generally are meant to be sold. Their value is invariably reflected in the money they command in the marketplace. Here, the works were painted for free, but surely the plaintiffs would gladly have accepted money from the defendants to acquire their works" (p. 25).
He adds that "the ineluctable factor which precludes ... injunctive relief" was "the transient nature of the plaintiffs' works." They "always knew that the buildings were coming down." "Particularly disturbing is that many of the paintings were created as recently as this past September, just weeks after the City Planning Commission gave final approval to the defendants' building plans. In a very real sense, plaintiffs' have created their own hardships" (p. 26).
So the transient nature of the works precludes injunctive relief ... but it doesn't preclude "potentially significant monetary damages if it is ultimately determined after trial that the plaintiffs' works were of 'recognized stature'" (p. 27). And here's where it gets really interesting.
He closes by noting that the City Planning Commission required 3,300 square feet of the exterior of the new buildings to be made available for art. But the defendants, he says, "can do more":
"They can make much more space available, and give written permission to Cohen to continue to be the curator so that he may establish a large, permanent home for quality work by him and his acclaimed aerosol artists. For sure, the Court would look kindly on such largesse when it might be required to consider the issue of monetary damages; and 5Pointz, as reincarnated, would live" (p. 27).
Is it me, or do you get the feeling he's trying to tell them something?
UPDATE: Foley Hoag on the moral of the story: "[T]his case is a cautionary tale for artists and property owners alike. ... Given a slightly different fact pattern, the artists might have successfully blocked demolition. If an artist and a property owner contemplate a piece of artwork that will be intrinsically connected to a building, it is in everyone’s best interest to actively address that fact before the art is created. The parties could agree to a VARA waiver, find a way for the art to be detachable, or make the art a 'work for hire,' in which case the artist would receive compensation, but VARA protections would not attach. If the parties can’t agree on one of those options, it might be best for the artist to find a different canvas, and for the owner to find a different artist. Otherwise, artists risk having to combat unexpected attempts to demolish their work, and property owners risk having their rights in their property limited for the duration of the artist’s life."
UPDATE 2: Sergio Muñoz Sarmiento comments here, fixating on fixation.
Tuesday, November 19, 2013
Tell me again about the public trust (it's pronounced dee-AK-session edition)
The Toledo Art Museum has sold more than 200 works and "another 50 works are scheduled to be auctioned in January." "It costs money and takes up space to store works that are never going to be displayed, so why not find a different home for them on the open market?"
"The case centers on a relatively simple question: does one of Warhol’s depictions of Fawcett belong to her longtime lover, Ryan O’Neal, or should it join its twin at her alma mater, the University of Texas at Austin?"
Trial's about to start in Los Angeles. "Fawcett decreed in her will that all her artwork go to the school, yet O’Neal insists that Warhol gave him a copy of the portrait as a gift and it belongs to him."
Sunday, November 17, 2013
Here's my question for those who say there is a "bubble" in the art market
What is the right price for the Bacon that sold for $142 million this week?
$127.41 million?
$93.8 million and forty three cents?
This isn't Snapchat or Twitter. There's no P/E ratio to look at, or revenues, or any of the other metrics by which you can make claims about the "true" value of the asset in question. There are no "fundamentals" when it comes to art. As Peter Schjeldahl says, "any price—many millions, a buck fifty—paid for any work of art is absurd." What makes this one any more or less absurd than any other?
$127.41 million?
$93.8 million and forty three cents?
This isn't Snapchat or Twitter. There's no P/E ratio to look at, or revenues, or any of the other metrics by which you can make claims about the "true" value of the asset in question. There are no "fundamentals" when it comes to art. As Peter Schjeldahl says, "any price—many millions, a buck fifty—paid for any work of art is absurd." What makes this one any more or less absurd than any other?
Tuesday, November 12, 2013
Monday, November 11, 2013
Two publics are better than one
The Fisk-Crystal Bridges sharing arrangement marches on, with the works remaining at all times in the public trust ... and now benefiting the public in Arkansas as well as the public in Tennessee. It's a win-win. Besides sharing the financial burden, having a second venue is fair to the collection, which gets more visibility.
"When authenticators are afraid to practice their profession, it has a far reaching effect."
Nicholas O'Donnell reports on some proposed legislation in New York that would help protect "authenticators."
Saturday, November 09, 2013
"Sources tell Local 4 the dollar amount the EM will need to help clear the city's balance sheet is about $200 million out of the museum."
Suppose that's the worst case scenario -- the museum has to come up with $200 million and then they'll be left alone. Is that the end of the world, all things considered? Does the Detroit Institute, minus $200 million worth of work, cease to exist? The museum has been -- conservatively -- estimated to hold $2.5 billion worth of art. (And it could be a lot more.) But even on that conservative estimate, it would come out of this, in a worst case scenario, with 92% of its collection intact. (And that assumes that 8% would just be sold off completely; what if, instead, they entered into a Fisk-like joint ownership arrangement for some part of the collection?) Of course nobody wants to lose that 8% (except, I suppose, the people in the city whose museum acquires it, assuming it's a museum that acquires it), but it's important to keep straight what's at stake here. Assuming Local 4's sources are correct, it seems a little over-dramatic to me to talk about "closing the museum."
"I love the work and it’s going to tear my heart out to see it torn down, but as a judge I have to apply the law." (UPDATED)
"I can’t grant the injunction."
The Daily News on the 5Pointz case.
UPDATE; Some thoughts from Sergio Muñoz Sarmiento here.
The Daily News on the 5Pointz case.
UPDATE; Some thoughts from Sergio Muñoz Sarmiento here.
Friday, November 08, 2013
Thursday, November 07, 2013
New Art Law Book
I've been meaning to mention that my friend Judith Prowda has just published the excellent Visual Arts and the Law: A Handbook of Professionals.
Wednesday, November 06, 2013
"Federal District Judge Frederic Block said he would be 'hard-pressed' to stop the building’s owners ... from tearing it down."
Here's one report on today's preliminary injunction hearing in the 5Pointz VARA case.
"Gates questions why anyone would donate money to build a new wing for a museum rather than spend it on preventing illnesses that can lead to blindness." (UPDATED)
Bill Gates takes the Peter Singer utilitarian line on philanthropy.
UPDATE: A reader points me to this related op-ed by Robert Reich from 2007.
UPDATE: A reader points me to this related op-ed by Robert Reich from 2007.
Tuesday, November 05, 2013
"If a fake is good enough to fool experts, then it’s good enough to give the rest of us pleasure, even insight."
Blake Gopnik looks on the bright side of art forgery.
"For VARA to apply, the work must be of 'recognized stature.'"
"Since over the artists have repeatedly repainted the warehouse walls, 5Pointz might have a hard time establishing that the graffiti there is of 'recognized stature'. The constant repainting might lead the court to conclude that the graffiti artists did not have any expectation for their paintings to be permanent, which would remove the case from the scope of VARA. Moreover, Thomas F. Cotter, a professor specializing in intellectual property at the University of Minnesota Law school, noted that extending VARA protections to 5Pointz would seem to leave the Wolkoffs with no practical legal means of tearing down their own building, which “wouldn’t make a great deal of sense."
The American University IP blog on the 5Pointz graffiti case.
The American University IP blog on the 5Pointz graffiti case.
Monday, November 04, 2013
Pop
Felix Salmon is seeing signs that the art market "bubble" is about to burst. (Is it me, or is Felix Salmon always seeing signs that the art market bubble is about to burst?)
The Art Market Monitor responds here (and suggests no, it's not me).
I'm not sure the "bubble" metaphor makes much sense as applied to the art market in the first place. I think this may be closer to the mark.
The Art Market Monitor responds here (and suggests no, it's not me).
I'm not sure the "bubble" metaphor makes much sense as applied to the art market in the first place. I think this may be closer to the mark.
Thursday, October 31, 2013
A point about 5Pointz
And, on the subject of graffiti art, another interesting recent art law story is the VARA lawsuit brought by a group of artists to block the destruction of 5Pointz, "the graffiti mecca in Long Island City." They got a preliminary injunction, with a fuller hearing scheduled for next week. Here is one news report.
One interesting aspect of the case is the temporary nature of the works at issue. The building owner points out that the website for the program notes that pieces are generally "left on display for anywhere from one day to two years," and are "typically displayed for a mere matter of days, weeks, or months, only to be painted over and replaced with a new image." (I know that's to some extent a disputed fact in the case, but let's assume it's so for the moment.) How should this affect our thinking about VARA's application? Imagine that the practice was that each work stayed up for 24 hours and no more. Could it be a VARA violation to paint over (or tear down) that work?
One interesting aspect of the case is the temporary nature of the works at issue. The building owner points out that the website for the program notes that pieces are generally "left on display for anywhere from one day to two years," and are "typically displayed for a mere matter of days, weeks, or months, only to be painted over and replaced with a new image." (I know that's to some extent a disputed fact in the case, but let's assume it's so for the moment.) How should this affect our thinking about VARA's application? Imagine that the practice was that each work stayed up for 24 hours and no more. Could it be a VARA violation to paint over (or tear down) that work?
A "distracting, frothy combination of art, money, celebrity and urban exploit"
I also missed covering all the Banksy-related goings on over the last couple weeks, but Roberta Smith has a good rundown.
"In the wake of the appellate decision there still remains uncertainty about the extent to which one artist’s use of another artist’s imagery in creating a follow-on work is protected from a copyright lawsuit"
"Moreover, it remains unclear—when there is a suit—what sort of evidence a court must consider in refereeing the dispute ...."
Michael Straus, Chairman of the Warhol Foundation, on where we are after Prince-Cariou.
I agree.
Michael Straus, Chairman of the Warhol Foundation, on where we are after Prince-Cariou.
I agree.
The Murkiest Realm
Also in the Times this week, Patricia Cohen on a lawsuit by the Calder estate against his longtime dealer, Klaus Perls, claiming that he "surreptitiously held on to hundreds of Calder’s works and swindled the artist’s estate out of tens of millions of dollars." As Cohen tweets: "Theft, betrayal, Swiss accounts, code names, hush money, fakes. What more could you want ...." Christopher Knight has a favorite detail in the story: "'Madame Andre' wasn't a person, but a nickname for the Perls Swiss bank account." The New Yorker's David Grann (whose name may be familiar to regular readers of the blog) says: "Swiss bank accounts, allegations of betrayal & fraud, & more evidence that the art world is the murkiest realm." Or, as Michael Wolff puts it: "Seriously, are there any honest people in art? Or just a corrupt industry?" For her part, Lee Rosenbaum "find[s] many of the charges by Calder grandson Rower against the late dealer Klaus Perls hard to believe."
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