"To the dismay of many street artists, it remains unclear whether copyright law affords protection for unauthorized street art."

Hughes Hubbard & Reed's Lena Saltos and Angela Lelo:  Unchartered Territory: Enforcing An Artist's Rights In Street Art.

Tell me again about the public trust (two key post-war works edition)

MoMA is selling a Dubuffet and a Mathieu.

"Théorème d’Alexandroff entered Moma’s collection in 1964 as part of a bequest from the American lawyer Samuel Rosenman; the Dubuffet work was bequeathed to the museum in 1990 by Mary Sisler."

That's interesting, because I thought I heard that (part of) the rationale for the AAMD position on deaccessioning is a concern with the message sales can send to potential donors:  Why wouldn't somebody say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?

I must have misheard.

"Paddle8, the online auction house which merged with now-embattled competitor Auctionata last May, has secured an investor to buy it out for an undisclosed amount ..." (UPDATED)

". . . while its parent company Auctionata AG has filed for preliminary insolvency, representatives for both firms confirmed today."

UPDATE:  Tim Schneider:  "Auctionata and Paddle8's ... difficulties suggest that the real flaw here is the midlevel digital-auction business itself. All the signs suggest that the market niche just isn't growing fast enough to sustain these two firms, either independently or combined. So regardless of whether Auctionata re-capitalizes or Paddle8 buys its freedom, it's plausible that neither will be long for this world. Online auctions––and online art sales more generally––may be the future. But sometimes the future is still too distant to save us."

"I deny. I denounce. This fake art." (UPDATED)

Richard Prince has disavowed a work of his depicting Ivanka Trump.  It's unclear what his denial, denunciation, and disavowal will mean.  From Randy Kennedy's New York Times story:

"Joshua Holdeman, a Manhattan art adviser and a former vice chairman at Sotheby’s, said he believed Mr. Prince’s excommunication of the work would probably not cause collectors or museums to treat it as illegitimate in the long run and he added that it might indeed increase its value.

"'As far as the market is concerned, if an artist says a work isn’t by him, but it’s clear that he made it and presented it as his work, well it kind of is what it is,' Mr. Holdeman said. 'My intuition about this is that when history plays out, this will probably end up being a more culturally rich object than if this whole episode hasn’t happened.'"

Hyperallergic's Benjamin Sutton agrees "it may have the unintended consequence of making the work more (rather than less) valuable."  Good legal analysis from Nicholas O'Donnell here.  And a very interesting piece from Jerry Saltz on the “aesthetics” of the move.  He points out that there is a long tradition of artists creating work out of thin air:

"This is using language as law, as in 'I now pronounce you man and wife' or 'I sentence you to five years.' ...Whatever else these artists and Prince did they reduced art to some invisible essence, the will of the artist, making the artist primarily a conceptual creator or destroyer of worlds. ... But on Wednesday Prince moved things in the other direction, using that biblical power not to make but to take away — not to bestow but withdraw the art content of the work. This drop-dead simple yet loaded act is actually a quite profound and radical innovation, one that immediately suggests there may be dozens of new conceptual gestures and possibilities in this strange new conceptual universe artists find themselves now living in."

UPDATE:  Kenny Schachter isn't having it.

"French Court Acquits Art Mogul Guy Wildenstein of Tax Fraud"

Wall Street Journal story here.

"One of the main reasons experts can no longer make themselves heard is the insidious threat of legal action that awaits their impartial opinions."

Tim Hunter in The Art Newspaper.

"I don’t think anyone should get tangled up with the IRS if they don’t have to, for one. You get mauled."

Hannah Cole interviews Susan Crile about her Tax Court victory.

"Loved by some and loathed by others, the Legs quickly became an iconic local landmark and the subject of a protracted legal dispute, beginning in 2008 and continuing today."

Adelaide Dunn (Advanced Topics in Art Law Class of 2016) reviews a documentary film about a zoning controversy over a Larry Rivers sculpture in the Hamptons.

"A New York art gallery owner was ordered ... to pay $500 for every day she continues to ignore inquiries by Joseph Statkun ..." (UPDATED)

". . . a contemporary artist who won a default judgment on claims the gallery cropped one of his paintings without permission."

UPDATE:  Judgment paid in full.

Disavowal

There's been some discussion of a recent Southern District decision dismissing a breach of fiduciary duty lawsuit against an art advisor having to do with another "disavowed" Cady Noland work.  See, for example, The Art Market Monitor here ("Did Cady Noland Case Clarify Role of Art Advisors?").  I think the facts/posture of the case were too weird to draw any general conclusions from it.  Basically, a collector purchased a Noland work from a gallery with a rescission clause providing for a refund if she disavowed the work.  Which she did.  The gallery returned part of the purchase price, but not all.  The art advisor's role in the transaction was unclear:  "despite the suggestion in plaintiff's briefing that [the collector] 'retained' and 'paid' [the advisor], ... the Amended Complaint nowhere alleges as much."  And it also wasn't clear to the Judge what the advisor was supposed to have done wrong.  The inclusion of the rescission clause "affirmatively benefited" the collector; the problem was just that the gallery failed to pay back the money as agreed.  You get the sense from reading the decision that the Court felt like the collector's real beef was with the gallery -- who for some reason has not been served.  All in all a pretty strange case and not one that I think will provide much guidance going forward.

Does California's new "autograph law" apply to works of art?

Sheppard Mullin says it might.

"After years of litigation, we have gotten rid of all of her claims and we are entitled to go forward with ours."

The New York Times:  Case Against Robert Motherwell’s Foundation Is Dismissed.

This one too has been long-running.  Background, from 2009, here.

"The outlook for New York’s largest art museums is a little unsettling."

The always-interesting Adrian Ellis on how things might look for museums over the next four years:  "A Trump presidency is anxiety-inducing not because of any direct financial impact, but because of its potential impact on the world economy, and therefore on New York philanthropy and tourism. Perhaps more significantly, a culture war between scapegoated elite liberal and humanities institutions and a populist presidency seems likely. This climate may in turn affect both their overall appeal to the narrowing band of philanthropists and put at risk the fiscal privileges they enjoy under section 501(c)(3) of the federal tax code."

"In a more ethical world, to spend tens of millions of dollars on works of art would be status-lowering, not status-enhancing."

Dwight Garner's NYT review of Peter Singer's new essay collection led me to this 2014 piece, where he (Singer) asks, "In a world in which more than six million children die each year because they lack safe drinking water or mosquito nets, or because they have not been immunized against measles, couldn’t you find something better to do with your money?"

The world's biggest art gallery

Bloomberg had a story recently on Park West Gallery, which "sells pictures and sculptures at thousands of live auctions held on more than 100 [cruise] ships each year" and "has had annual sales as high as $400 million and counted more than 2 million customers."

The controversy around this has been going on for years, and Tyler Cowen had some simple advice here.

"We now have so much faith in the legal system."

After Knoedler Suit, a Passion Undimmed.

"However, there may be a different group of artists who deserve their own separate pantheon—those who have made judicial, rather than art, history—for expanding artistic freedom and enabling other artists to create work without fear of prosecution."

Daniel Grant in The Observer:  Freedom of Expression? Fair Use? Thank These Artists You’ve Probably Never Heard Of.

Artist Pension Trust News

It's merging with MutualArt.com.  The Art Market Monitor calls it "one of the more curious announcements in the art world" and says:

"What the combined companies can do together that they could not do apart is not readily apparent. Nor is there an obvious business model for either company as a separate entity or combined."

Background on Artist Pension Trust here.

Tyler Cowen on How Trump Should Support the Arts

The ground rules:  "I applied several standards to my recommendations. First, they must save the federal government money, to appeal to the Republican Congress. Second, they should stand a chance of appealing to Trump, given his stances on other issues. Third, they should offer a reasonable chance of improving the quality of the arts in the U.S., and fourth, the arts community should not hate every aspect of the changes."

The recommendations:

1.  End the transfer of 40% of the NEA budget to state arts councils; and
2.  Restore NEA funding for individual artists.

I stole that pithy summary from Michael Rushton, who adds:  "The two recommendations are driven by a common goal: help fund more interesting, innovative art. Transfers to state arts councils don’t do much for that goal, since they are driven by local politics and the need to serve constituencies on building projects and established arts organizations. Even at the federal level, grants to composers and artists have a chance of doing more to generate interesting art than traditional grants to orchestras and museums."  (His conclusion:  "Of Cowen’s recommendations, I am solidly behind (2), on the fence on (1). But at least he is trying to suggest an end for arts policy, which in turn suggests ways of criticizing alternative means to those ends and suggesting better ones. More like this, please.")

Jamie Martin to Sotheby's

"The scientist James Martin — who for 20 years conducted art fraud investigations for the F.B.I. and played a central role in significant forgery investigations — will join Sotheby’s this week after the acquisition of his firm, Orion Analytical."

"Lowe proclaims that his workshop seeks to 'redefine the relationship between the original and the copy.'"

There was a really interesting piece in last week's New Yorker on "The Factory of Fakes" -- Adam Lowe's 3D reproduction project, Factum.  A taste:

"Factum made its reputation in 2007, with a replica of Paolo Veronese’s monumental painting 'The Wedding at Cana,' which Napoleon presented to a new museum, the Louvre, after ripping it off the wall of a refectory in Venice in 1797. The painting’s place in the refectory, which was designed by Palladio, had never been filled; Lowe installed his copy in the exact spot. Factum’s noninvasive protocol, in which their scanner’s lasers captured every whorled brushstroke without touching the canvas, was in stark contrast to the Louvre’s restoration of the painting, in the nineteen-nineties, during which it accidentally fell onto some scaffolding and was gored in five places. ... When Italians witnessed the unveiling of the Veronese replica, in the creamily lit space where the artist intended his masterpiece to be seen, many of them wept. Bruno Latour, the French theorist, championed the 'Cana' project, and he and Lowe later wrote an essay about it, in which they referred to a 'migration of the aura' from original to copy."

"The experts, as it turned out, were just as bad as the students at spotting the fakes and in fact were *more likely* to say that the genuine MoMA works were fake than they were to call out the fakes."

New York Magazine:  It Is Pretty Easy to Get Art Experts to Fall for Fakes.

Noah Charney would love to be a forgery collector

He explains here:  "Stripped of the fraud component, what you have is an extremely skillfully executed painting, beautiful and with a heck of an interesting story behind it. It becomes a relic of the story in which it featured, but it can also be admired for its aesthetic value."

Getty Images won the (billion dollar) lawsuit brought against it by Carol Highsmith

Story here.  Background here.

"The good news is that after a years-long battle and a lot of legal costs, she finally won."

Daniel Grant looks back at the Crile decision:  "Are You Really an Artist? It’s the IRS Who Actually Decides."

"Christie’s, Sotheby’s and eBay are now demanding to have their legal bills repaid ..."

". . . after twice beating class action litigation aimed at forcing them to pay royalties to artists under California’s art resale law."

Background here.

"'Sotheby’s was not involved with Bouvier’s resale of the Salvator Mundi to Rybolovlev and it derived no financial benefit whatsoever from the sale,' the complaint states." (UPDATED 2X)

A preemptive strike by Sotheby's relating to the Rybolovlev-Bouvier battle.

UPDATE:  More from the Times.

UPDATE 2:  More from Bloomberg.

Fixation

ARTnews has an interesting series of contributions on the question how to fix the art world (part 1, part 2).  Some of the responses touch on art law issues, including these suggestions from Christy MacLear of the Rauschenberg Foundation:

"Copyright:

"Set them free. Images for scholars, teachers, museums, and stewards. Images to be reused creatively by other artists. Even fair use comes with fear and some still seek a free pass or approval. Stop asking—start using—go forth and flourish. Share smartly and avoid a fear of legal retribution; we all trust you. Use art to teach and share knowledge or inspiration. We love more people loving art.

"Deductibility:

"Gifts of art to charities propel our culture but inure no direct benefit to the artist. ... An artist’s contribution to society must be recognized for more than simply the value of raw materials. Art must be valued as a donation equally for the creator as it is for the collector. Wealth and tax equality for all."

Christie’s Ned Schefer has excellent taste in online reading material

As evidenced here.

"The hits keep coming, but Prince doesn't seem to care."

artnet's Eileen Kinsella has a report on the latest Richard Prince lawsuit (including a quote from my post yesterday).

VAT insanity

Norway edition.

Deja Vu All Over Again

Another lawsuit against Richard Prince.

Here is a previous example.  And another.  And another.  I'm probably missing some.

This is why I called the Second Circuit's Prince-Cariou decision a "missed opportunity."  Nobody has any idea what's fair use and what's not in the fine art context.  Prince-Cariou could have helped clear that up; instead, it made things worse.

The jig is up, the news is out

I'm honored to be included on this list of art law renegades from Sergio Muñoz Sarmiento.

"Stripping Is Not Performance Art, Nor Tax Free"

Says New York's Appellate Division.

Motion to Dismiss Denied in the Jeff Koons Gazing Ball Lawsuit (UPDATED)

Dan Duray has the story here.  Background here.  More after I've had a chance to read the decision.

UPDATE:  "The case is a reminder that big ticket transactions in the art world, which can be tricky affairs even when dealing with unique works, are more convoluted when involving editions or multiples to be manufactured by an artist."

Picasso electrician update

"He now claims that the works were given to him in a rubbish bag by Jacqueline, after the artist’s death."

Background here.

"French law forbids national museums from selling anything in their collections, unlike many museums in the United States, which can de-accession works."

Did American museums' promiscuous deaccessioning practices contribute to the decision by Spencer and Marlene Hays to leave their incredible collection to France?

Maybe some day American museums will understand that they hold their works in the public trust, to be accessible to present and future generations, and they shouldn't be sold off in the normal course.

"In the art market, repeat sales account for a fairly small fraction of total sales. ... Thus, any art index based on repeat sales—such as the Mei-Moses index—is unlikely to be considered representative of any market segment."

Sotheby's has bought the Mei Moses art index, for an undisclosed price.  I'm with Columbia Business School's Arturo Cifuentes, quoted in the header above.  As Felix Salmon put it several years ago, the index is "a creature of massive survivorship bias. The Mei Moses index looks at auction pairs: works of art which have been sold at auction twice. This method gives a very good idea of what has happened to the value of any given work of art over time, but it’s a very bad way of determining what has happened to the art market as a whole, since the kind of works which get auctioned multiple times are decidedly not representative of the broader art world."

"The score was settled thanks to outraged posts on social media."

artnet:  Vivienne Westwood Accused of Plagiarizing Artist’s Design.

Given what's in the story, I don't think the "accused of" is necessary there.

2017 National Cultural Heritage Law Moot Court Competition

Details here.

Tell me again about the public trust (nearly 70 antiquities originally from Egypt and other countries edition)

The Toledo Museum of Art is selling.  Don't be alarmed by the fact that "modern international cultural heritage laws make it impossible to acquire such antiquities, meaning the Toledo museum is unlikely to ever be able to replace the objects if leaders would choose to do so."

It's not like those nearly 70 objects, having fallen under the aegis of a museum, were held in the public trust, to be accessible to present and future generations.  That's a totally made up thing. No one ever says that.

"New Authentication Lawsuit Filed Against Agnes Martin Catalogue Raisonné"

Nicholas O'Donnell has the details, and a preliminary analysis.  The complaint is here.

Another example of the indeterminacy of fair use

Courtesy of Clancco. Southern District said fair use on motion to dismiss. Second Circuit disagreed.

As I've said, no one has any idea.

"Whatever its fate, the tale of the contested Monet shows that the world of art dealing is as opaque as any pondscape."

Kelly Crow in the WSJ:  Art Dealer Claims Monet in 1MDB Scandal.

"But now he says all 24 of the Golubs he bought from the Gascards are fake."

Graham Bowley reports in the Times on a lawsuit filed by Wall Street trader Andrew Hall against an art history professor and her son.

The problem of the art market is how do you build a set of legal rules to govern a marketplace where even the most sophisticated participants (the Times notes that Hall was "capable of earning a $100 million bonus in a single year," has amassed a collection of 5,000 works, and has his own private museum) can't tell the difference between the real and the fake?

A related story is unfolding here.

And an interesting observation from Blake Gopnik:

"There’s one other take-home from all this ...: Any case where science does need to be invoked is a case where the forgery is so good, and so very like what we expect from the artist in question, that it does all the aesthetic work that an original would. And that means the fake can happily be folded in with the real works we know, without doing much harm at all or even making much of a difference. ... Any time expert eyes can’t agree on whether a picture is real or fake—or when it turns out that they all agree that a fake is real—they are actually letting us know that it’s a case that’s barely worth resolving."

The "transformative" gift to MoMA ...

... from the Cisneros Collection gives me a chance to re-up this piece from last year:  What culture? What public?

More on the Shvo indictment

From ARCA here.  The Real Deal here.  Background here.

"Today I put myself forward as a candidate for the 2018 election."

Tania Bruguera is running for office in Cuba:

"Pushing barriers has been Ms. Bruguera’s signature. She made waves in December 2014 when she attempted to stage an open-mike performance in one of Havana’s most emblematic plazas, a gesture for which she was arrested and had her passport confiscated for several months."

"Some observers warned that if decided in Hoffman’s favor, the case could have meant that legal agreements ensuring a transaction’s secrecy could be used to effectively prohibit future sales of the art they governed."

Isaac Kaplan at Artsy on the Marguerite Hoffman confidentiality lawsuit, discussed last week here.

Why do (some) museums prohibit photography?

Five reasons.

News you can use

Artsy:  What It Takes to Recover a Stolen Work of Art.

"Courts and the U.S. Copyright Office have been pretty resistant to the notion that the design of letters is copyrightable."

The Wall Street Journal has more on the Dash Snow estate's claim against McDonald's.

Should the U.S. adopt a payment-in-kind income tax program for artists?

This law review article by Julia Bogdanovich argues no.  (h/t)

"The Frans Hals Revelations Cast Doubt on Both Technical Expertise and Connoisseurship"

The Art Market Monitor on the recent news that Sotheby's has reimbursed the buyer who purchased a painting attributed to Frans Hals for $10 million.

"Yet another major clothing company is facing allegations that it stole the work of an independent artist without permission or payment."

Artsy:  Kohl’s Is the Latest Fashion Retailer Accused of Stealing an Artist’s Work.

"Dash Snow’s Estate Sues McDonald’s for Copyright Infringement"

Carey Dunne has the details at Hyperallergic.

"The suit claims Oremland violated professional boundaries and induced a patient, John Pierce, to give him at least a dozen rare works of art by masters such as French modernist Henri Matisse and Italian Renaissance artist Raphael."

KQED:  Art and Psychiatry On Trial: The Strange Case of Pierce v. Oremland.

"A Civil War painting that shows a soldier carrying a Confederate flag into battle will be displayed at the Big Fresno Fair, averting a First Amendment showdown this week in U.S. District Court"

Story here.  Background here.

The Fifth Circuit brings some sense to the Marguerite Hoffman breach of confidentiality lawsuit

This has been going for for six and half years.  Background here, here, and here.  Briefly, Hoffman sued collector David Martinez and L&M gallery for breach of the confidentiality clause in the sale of a Rothko.  The District Court threw out the claims against Martinez, but let stand a $500,000 verdict against the gallery.  (Hoffman had reportedly sought more than $22 million.)  The Fifth Circuit has now thrown out the verdict against the gallery too.  You can read the decision here.

There were always three things that struck me as really odd about the case.

First, my very first reaction to the claim, way back in 2010, was to note the strangeness of the core claim "that, because Martinez agreed to keep the transaction confidential, he could never re-sell the work. That is, he is said to have breached the confidentiality clause not in the usual way such clauses are breached -- i.e., by blabbing about it -- but by the mere act of selling."  The Fifth Circuit refuses to read the confidentiality provision as "permanently prevent[ing] the public sale of the [work]."

Second, I never understood the damages theory in the case.  Hoffman's theory seemed to be that her damages were the amount she "gave up by selling the work privately (with a confidentiality clause) rather than at auction, as if sales at auction always do better than private sales."  The Fifth Circuit rejects this "auction premium" theory as hypothetical and speculative.

And last, the lawsuit always seemed to be, as The Art Market Monitor put it, "self-defeating."  If the concern was to not draw attention to the fact that Hoffman sold the Rothko ... well, here we are six and a half years later still talking about the fact that Hoffman sold the Rothko.  I would also assume that the legal fees for six and a half years of litigation were not insignificant.

In any event, the end at last of a pretty bizarre case.

"In other words, when you donate your painting to the auction, you get karma, joy, and societal good, but you get zero tax deduction."

Hannah Cole:  Can I Get a Tax Deduction For the Artwork I Made? Short Answer, No.

Brian Frye on the Detroit Bankruptcy

Self-recommending.  It's not primarily about the museum association deaccessioning rules, but I am naturally drawn to paragraphs like this:

"And yet, it is unclear why it is 'ethical' to sell artworks in order to buy artworks, but 'unethical' to sell artworks for other purposes. For example, under the AAM and AAMD guidelines, it is 'unethical' for an art museum to sell a work of art in order to avoid bankruptcy. As a consequence, art museums facing financial crises have been forced to close, when the sale of a single artwork could have covered their expenses. Most recently, the Corcoran Museum of American Art found itself in precisely this situation, and we lost an American institution. Would it really have been 'unethical' for the Corcoran to have sold an artwork in order to maintain its existence? Would it really be 'unethical' for a museum to sell an artwork from its collection in order to provide free admission? Would it really be 'unethical' for a university art museum to sell an artwork in order to provide scholarships?"

Yes, would it?

"There are now three lawsuits claiming that Leigh Keno or Leslie Keno and/or one of their companies have not paid their auction house bills."

Details in the Maine Antique Digest here.  At least one involves allegations of shill bidding. Background here.

"That I would be able to ever pronounce these words is something I had no longer dared to hope for." (UPDATED)

NYT:  2 van Gogh Paintings Stolen From Amsterdam Are Recovered in Italy.

UPDATE:  Jonathan Jones:  Gangsters' use of paintings as currency shows a profound belief in art.

Met lays off 34 employees (UPDATED)

Story here.

UPDATE:  There's also this:  "The museum also expects to reduce the number of annual exhibitions over the next few years, perhaps to 40 from 55."  That's fine; just remember it's a choice.

Michael Rushton on whether museums should provide free admission

Self-recommending (even without the interesting detour into deaccessioning).

"Are museums for sale?"

A big thank you to the Art, Cultural Institutions and Heritage Law Committee of the International Bar Association for including me as a panelist in yesterday's session:  Are museums for sale? The role of the private collector and corporate sponsor.  (I was on Panel 1 -- "Will de-accessioning be the new normal?"  To which my basic response was/is:  isn't it already the new normal?  Haven't we been told it shouldn't be such a touchy subject?)

"[Negishi] has intervened in some areas of my paintings, but the intellectual authorship of the works is mine."

Via Clancco, news of a co-authorship claim in Spain by a former studio assistant of the artist Antonio de Felipe.  I don't know what the story is in Spain, but the problem with this sort of claim under U.S. law is that co-authorship requires that the parties intended to be recognized as co-authors, and that's obviously not the case in most artist-studio assistant situations.

Getty Images moves to dismiss Highsmith lawsuit

Story here.  Background here.

"Of course, I’m pleased by the verdict. But it was a horrible thing to go through.”

Peter Doig talks to The Globe and Mail about his recent trial:  "It took up so much time and energy not to mention, of course, money."

He believes the "larger take-away" from the case is that "a living artist should be the first and last authenticator."

But what about the possibility that an artist might be mistaken, or dishonest?

"'Sometimes, of course, there may be an agenda' – a disputatious ex-lover, 'someone the artist had bad dealings with – and they may say, "I didn’t make that work." But that is so, so rare, I think.' Most people, Doig said, would 'just take it on the chin and say, "Yeah, I did do it."'"

Marie Dooley says the case "demonstrates that authentication, even by the living artist himself, can prove to be a costly endeavor for all parties involved."  Exactly.

"Art collector ... Michael Shvo has been indicted by the Manhattan District Attorney for tax evasion related to a scheme to avoid sales tax on expensive art purchases." (UPDATED)

Story here.

UPDATE:  More details on the alleged scheme here.  And here:

"The DA said that between 2010 and 2016, Shvo falsely told auction houses that purchases he made would be shipped to an out-of-state address in the Cayman Islands or other foreign countries, thus avoiding sales tax. Instead, they went to his offices and homes in New York state.... Two moving companies, Hedley’s Inc and Bestguy Moving, are also charged with participating in the scheme.They allegedly provided the auction houses and galleries with improper shipping documentation to conceal the delivery destinations. Shvo is even alleged to have fraudulently used New York Resale Certificates, which allow art dealers to purchase items exclusively for resale without paying tax."

"Sentences handed down in high-profile case over Drouot thefts"

The Art Newspaper:  "[T]he Paris Criminal Court convicted 38 of 49 defendants in a high-profile trial that opened in March over a complicated web of thefts within the [UCHV], the former art handlers’ union of the Hôtel Drouot in Paris. The group ... held a monopoly on art handling at the auction house from 1860 until 2010."  Background here.

"If a living artist has to endure years of expensive litigation and a full-blown trial to defend their position on whether they authored a work of art, what hope do experts, who are usually brought in to opine on authorship once an artist has passed away and can no longer vouch for their work, have?"

"On the other hand, it’s also not unheard of for an artist to try and disavow a work that they created for reasons of personal animus or because they no longer wish to be associated with the work."

"We might be sympathetic to a plaintiff in the case of a different set of facts."

So said Amy Adler in response to the recent Peter Doig case.

Hazel Rowland collects some examples of different sets of facts here.

Are we sympathetic?

"It is impossible to talk about the case without making it sound ridiculous; indeed, it *is* ridiculous, as in 'an exceptionally easy target for ridicule.'"

America’s only known primatologist-turned-copyright-law-professor weighs in on the monkey selfie case:

"There are many reasons that copyright law does not and should not deem Naruto to be an 'author,' ranging from the purely practical (e.g., How do we know the monkey’s name is 'Naruto,' and that he was the one that snapped the photo? What if no human had been there to see him do so — is there still a copyright, and does he own it? Insofar as copyright in a work endures for the life of the author plus 70 years, who’s keeping track of this wild macaque’s lifespan, and how will we know when it’s over?) to the more abstract: Copyright’s fundamental rationale is that bestowing protection on works is a means of providing 'authors' with an incentive that they otherwise would not have to create those works in the first place; non-humans (and machines, for that matter) can’t be 'authors' because they won’t be and can’t be incentivized by the existence of copyright protection for their works."

California bans painting depicting Confederate flag from County Fair art show

The Center for Individual Rights objects.  So does the LA Times editorial board.

“[T]he move to the transformative analysis, thought by many to be the solution to fair use woes, has actually made things worse for the visual arts.”

Speaking of excellent points by Amy Adler (who by the way co-teaches the best art law seminar in the world), she has a terrific new law review article out:  Fair Use and the Future of Art.

I’ve never thought the transformative test was remotely helpful either.

And one more interesting recent Adler piece here.

"No longer is it prudent to leave a body of work to one’s next of kin and hope for the best."

The Financial Times:  How an artist's legacy became big business.

Related:  What Artists Should Do to Protect Their Legacies before Dying.

Another "what we learned from the Knoedler scandal" story

This one from Laura Gilbert in The Art Newspaper.

A previous example here.

I continue to think the answer is "not much."

Weighing In

Artnet collects reactions to the Peter Doig case from various experts, all interesting and very much worth reading.

Amy Adler makes an excellent point here:

"[L]et’s say Doig had lied. I don’t think VARA gives you a right to disavow a work you actually created, unless it’s been significantly modified. In defense of the theory of the lawsuit, there may be circumstances where an artist does lie and could with one word wipe out $10 million of value; what recourse does an owner have under those circumstances? We might be sympathetic to a plaintiff in the case of a different set of facts."

Relatedly, there seems to be a sense, in some of these pieces and elsewhere, that the Judge in the Doig case set a bad precedent, or made life more difficult for artists going forward.  I don't think that's quite right.  All this case did was expose the risks to artists that were already there.  Before the Doig case, an artist who denied the authenticity of his work faced the possibility of a lawsuit.  After the Doig case, an artist who denies the authenticity of his work faces the possibility of a lawsuit. Nothing has changed.  This was always dangerous territory, as Doig sadly found out.

Another Richard Prince lawsuit

The Art Newspaper's Julia Halperin has the details, including that "[u]nlike the plaintiffs in the previous cases, Salazar—who posts to Instagram under the name @mynxiiwhite—is not a professional photographer. According to her website, she is a makeup artist who has toured with Kanye West and Kelly Clarkson as well as a model who has appeared on the cover of Elle Japan and Vogue Italia."

"As one of my former Corcoran colleagues said about the two case studies, ‘The Corcoran is dead. Delaware lives.'"

The Washington Post's Peggy McGlone had a story last week on the demise of the Corcoran Gallery: Homeless art, lost jobs and low enrollment: Two years later, Corcoran's breakup still stings.

Two years ago, when this was all going down, I asked:  Did the Deaccession Police Kill the Corcoran?

It seems that's exactly what ended up happening, as Tim Schneider explains:

"I'm chiefly appalled by how the US's economically ludicrous museum standards factored in. Whether their fear was authentic or simply a smoke screen for what sounds suspiciously like an inside job, the trustees reportedly opted for this plan partly because they knew they could not sell any of the Corcoran's assets to raise money for operating expenses without being institutionally waterboarded by both the [AAM] and (although McGlone doesn't mention it) the [AAMD]. For the uninitiated, the sacred standards of these organizations decree that museum holdings can only be placed on the market to fund new acquisitions, not grubby terrestrial line items like, you know, staying solvent. Case in point: The AAM excommunicated the Delaware Art Museum in 2014 for selling select works from its collection to pay construction debts on a major architectural expansion, while the AAMD imposed major sanctions for the same supposed offense. But as Delaware's chief executive points out to McGlone, the DAM survived its exile and is now thriving. The Corcoran, on the other hand, effectively reduced itself to a zombie institution willingly serving up its limbs to scavengers. All of which underscores the American nonprofit sector's illogical orthodoxy on de-accessioning: Preserving the supposed sanctity of a museum's collection is meaningless if the institution has to die for the cause. And if you ask me, it's far more barbaric to give the public an honor killing than a museum where art and business are allowed to sensibly mix."

Well said.  And speaking of Schneider, he, and friend of the blog Brian Frye, will be taking part in a panel discussion tomorrow night at WhiteBox in New York on the intersection between art, technology, and business.

BREAKING: Doig Wins (UPDATED)

The New York Times:  The Artist Peter Doig Wins a Case Involving a Painting's Attribution.

But of course, nobody really won here.

UPDATE:  More here from artnet's Dushko Petrovich.  He closes with a quote from one of Doig's dealers:  "It is our hope that this verdict will have at least one good outcome—that artists maintain the unfettered right to authenticate their own work."  Unfortunately, I don't think that's the case.  If an artist had the unfettered right to authenticate his own work, the case would have been dismissed earlier; it would never have come to trial.  Instead, what happened here is that the court treated the artist just as any third-party authenticator:  the ruling was that he happened to be right about the facts in this instance (i.e., the painting was by Doige not Doig).  But if he had been mistaken about that -- if he misremembered, or the status of the work was more ambiguous (say Doig had painted it while a teenager but he didn't regard it as a legitimate work) -- the outcome could have been different.  So I don't think artists should be especially heartened by the decision.  The case still stands as a warning that an artist who disclaims authorship of a work -- even on facts as ridiculous as these -- faces the possibility of thousands of hours of wasted working time and stress and hundreds of thousands of dollars in legal fees.

Still monkeying around

The Washington Post reported last week that, in the Monkey Selfie appeal, a "prominent anthropologist at the University of Notre Dame" has filed an amicus brief arguing that "[t]here is no dispute that Naruto created the images in question. Naruto is, therefore, the author."  That misses the point, I think.  That's a scientific conclusion.  The question in the case is a legal one:  does it make sense to consider animals to be authors in order to achieve the purposes of the Copyright Act?  On that question, Mike Masnick and Jordan Weissmann have the better of the argument.

"And so now, Von Saher will likely head to the Ninth Circuit for the third time, and the case will pass into its second decade."

I don't generally cover a lot of restitution stuff, but I did write a piece for the Journal of Art Crime on the Norton Simon-Von Saher case a few years back.  Nicholas O'Donnell reports that the museum recently won a "stunning" victory on summary judgment.

Deja vu all over again

The Art Newspaper reports that the Artist Pension Trust has made its first distributions to participants.  That's nice, but it's also at least the third time in the last six months that I've read this story.  Here's the New York Times back in March.  Here's ARTNEWS in June.  Some background here.

Lawsuit Over Koons Gazing Ball Sculpture

Stories by Dan Duray here and Brian Boucher here.

"What Happened on the Last Day of Peter Doig’s Ridiculous Trial"

artnet's Dushko Petrovich has you covered.  Another report here.

"Those fateful seconds, however, have resulted in what Doig called 'thousands of hours' of wasted working time and stress."

I was away last week, but the big art law story continues to be what artnet news rightly calls the "bizarre" authentication trial against Peter Doig.  You can read their account here.  Background here.  Deborah Solomon says the case "amounts to artist harassment."

That seems clearly true, but, to my mind, the lesson of the case is that anytime anyone (including the artist who supposedly made it) denies the authenticity of a work of art, they run the risk of incurring thousands of hours of wasted working time and stress ... not to mention who knows how much in legal fees.

The trial was scheduled to resume today.  I'll post further updates as they appear.

"Retroactive extensions of copyright throw the entire reasoning behind copyright into reverse."

Alex Tabarrok on copyright protectionism.

Does VARA need to be updated?

I'm quoted in this piece on the subject in the Observer.

"The denial sets up a likely appellate court battle that could determine the fate not just of the plaintiff artists’ resale royalties, but of the underlying statute."

Los Angeles Business Journal:  "Trial Judge Denies Artists Request to Reconsider Royalties Decision."  "While the law has been trimmed by an appellate court ruling last year, Fitzgerald’s decision, if upheld by the 9th U.S. Circuit Court of Appeals, could effectively moot the entire statute."  Background here.

Getty Images Lawsuit

The billion dollar demand may lead you to think of the recently-filed lawsuit against Getty Images as less than serious, but it's not a joke at all, it raises some very interesting issues.  Read about it here. Here is a link to the complaint.

The selfie monkey is appealing

Story here.  Appropriate reaction from Mike Masnick here.  Background here.

Is a copyright small claims court a good idea?

Kevin Smith doesn't think so, at least not in the form envisioned by the recently introduced CASE Act:  "I think that the proposed legislation would make it easier for Big Content, and especially for the copyright trolls who are often their vanguard, to bully ordinary individuals and increase the phenomena of copyright enforcement by fear, rather than through the law."

Another risk of being in the authentication game

artnet:  "French scholar Marc Restellini has braved death threats over his efforts to authenticate works by the Italian artist Amedeo Modigliani."

"There’s something strange about the view that universities should never sell their art, no matter what."

It's an interesting, and undeniable, feature of the deaccessioning debate that any time someone from outside the art world looks at the issue -- anyone, that is, who is not worried about being banished from the cool kids table in the cafeteria -- they find the deaccessioning taboo to be nonsensical. (Some previous examples here, here, here, and here.)

The latest is Harvard lawprof Noah Feldman, reacting, in his latest Bloomberg column, to the revelation that Fisk University sold two paintings a few years ago (sold them "under the radar," according to the New York Times ... and don't get me started on the Times's role in all this craziness). Feldman writes:

"The real question is whether a university should treat its works of art as commodities to be sold in a pinch or as fetishes to be worshipped and preserved no matter what. The former view may be a bit crude. But the latter view is absurd for an institution facing financial strain and deep cuts to its education mission. History, legacy and atmosphere can enhance the educational experience. But ultimately, they are supposed to serve education, not take priority over it. Give Fisk a break. Or give it a donation."

He's right that it's absurd -- not just wrong or misguided, but absurd -- and why anyone takes the deaccession police the least bit seriously remains one of life's great mysteries to me.

"Had the dealer named a different buyer, the gallery 'would have refused to sell the works at all to Buia,' the complaint states."

Mary Boone Gallery sues.

Smelled in the Public Trust

A National Poo Museum has opened in England.

“Mr. Schneiderman said that state law requires sales tax to be paid when possession of a good is transferred to a buyer within New York State and that the gallery, in handing over art to shipping companies that were not common carriers like FedEx or the United States Postal Service, was legally transferring possession to the buyer at that point.”

Randy Kennedy had a report in the NYT yesterday that Gagosian Gallery has agreed to pay New York State $4.3 million in back sales tax, interest, and penalties.  There were a number of different issues in play, but one of them is the one I quoted in the header above – and that kind of silly formalism has never made any sense to me.  If it’s a legitimate out-of-state sale – there’s no game-playing going on, the buyer genuinely has a home somewhere else – why should it matter whether the work ships by FedEx or by common carrier or by horse and buggy?

There is an art connection in the 1MDB embezzlement case

On the matter generally, see here.  On the art connection, see Kelly Crow at the Wall Street Journal and Eileen Kinsella at artnet.  And the Art Market Monitor says:

"The unanswered question surrounding Jho Low’s adventure in the art market is what he was hoping to accomplish with his art and real estate purposes. The assumption is that he was hoping to make quick gains by investing in art and real estate using borrowed money from 1MDB and multiplying that with leverage from other sources. But most of Low’s purchases were made at the top end of the market. In that range, Low was behaving more like a trophy or status buyer than a speculator."