More Bull (UPDATED 2X)

More coverage today of the Fearless Girl controversy.

First, Kriston Capps in The Atlantic:  Why Wall Street’s Charging Bull Sculptor Has No Real Case Against Fearless Girl.

And a piece in The Christian Science Monitor, with fresh quotes from:

Amy Adler:  "The possibility of changed meaning is, unsure, painful for an artist, but also something we should celebrate as a public policy matter. I think that’s exactly what any kind of arts policy ought to encourage. That dynamism of meaning that we see in the evolution of the space.”

And Sergio Muñoz Sarmiento:  "The way that the art market is now, works of art are selling for millions of dollars. The courts of law are no longer saying 'This is about pure expression.' This is probably now commercial activity. It’s no different than selling trinkets on eBay or selling goods on Fifth Avenue. Art may not be about expression anymore. It’s about pure commodity."

And Alfred Steiner joins the fray:  "The artist may have made the work for a particular reason, but they lose control over that meaning over time."

UPDATE:  Ann Althouse quotes an artist/IP lawyer who makes the case (as some others, including Di Modica's lawyers, have) that the real issue is not VARA but the fact that Fearless Girl is an unauthorized derivative work:  "Fearless Girl is a work of art that incorporates Charging Bull without permission of the copyright owner. Unauthorized use of a copyrighted work — unless it falls within some narrow exceptions — is straight up copyright infringement. ... You can’t control how people view your copyrighted work necessarily, but you can certainly prohibit them from using it without authorization. The relevant factual question would be, does Fearless Girl use the bull sculpture?"  To which she responds:  "Note that the 'Fearless Girl' statue is not attached to 'Charging Bull.' She's not riding it or grabbing it by the horns or even right up in its face. ... There's some distance between the 2 sculptures. It is possible to look at them independently and see them one at a time without the other necessarily intruding into your field of vision. You, the viewer, can also choose to position yourself so as to see them together and think of them together. The 'Charging Bull' sculptor wants to own the space in the vicinity of his work. If he's right, it would seem that artists could push around museum curators for grouping pieces together."

UPDATE 2:  Greg Fallis points out that Fearless Girl is "an extremely clever advertising scheme" by an investment fund called State Street Global Advisors; it was "commissioned as part of an advertising campaign developed by McCann, a global advertising corporation[,] ... to be presented on the first anniversary of State Street Global’s 'Gender Diversity Index' fund, which has the following NASDAQ ticker symbol: SHE."  And he says Di Modica has a point:  "I love the Fearless Girl and I resent her. She’s an example of how commercialization can take something important and meaningful — something about which everybody should agree — and shit all over it by turning it into a commodity. Fearless Girl is beautiful, but she is selling SHE; that’s why she’s there."

Or, as Paul Graham puts it:  "[T]he Fearless Girl is part of a corporate PR campaign that has totally p0wned Polite Opinion."

Another VARA Dispute

The New York Times reports that an artist "is suing Trinity Church in Lower Manhattan for moving his bronze re-creation of a huge sycamore tree that once stood in the churchyard."  According to the Times, his claim (or one of his claims) is that VARA "prohibits the removal of sculptures created to be installed permanently at a particular site."  More from Daniel Grant in The Art Newspaper here.

Those types of claims under VARA have not fared well in the past.

Anyway, big week for VARA in the news.

Bull (UPDATED)

Lots more coverage of the Fearless Girl-Charging Bull controversy, mentioned earlier here.  Here is James Barron in the NYT.  Here is the Washington Post.  And NPR here.

In Slate Christina Cauterucci claims that Di Modica makes a "very valid argument" that the city has altered his work -- potentially in violation of VARA -- "by adding another sculpture in direct conversation with his work without his sign-off."

At Above the Law, Joe Patrice responds:  "The hell are you talking about? Nothing about Fearless Girl diminishes the Bull or undermines Di Modica’s reputation as an artist."

Patrice also quotes NYU lawprof Chris Sprigman:  "God help any museum if this were the law. Imagine museums placing artwork and painter A asserting an intellectual property right not to be placed next to painter B."

Mike Masnick makes a similar point:  "The idea that a visual artist could block someone else from placing a work near their own work because it might change how people see the original would create major headaches around the globe. Imagine museum curators being forced to move works of art because an artist protests about how the work next to his or her own negatively impacts how people view it. That's insane."

As does NYU's Amy Adler (quoted here):  "At the end of the day, the artist has no claim, ... Under moral rights in this country, while you can sue for someone actually physically changing a sculpture, changing a sculpture by placing another sculpture near it is simply not actionable, ... We don’t want to let artists start suing curators because they don’t like who their work is displayed next to."  (She also adds:  "A policy that would allow one artist to stop another artist’s work would be a mistake. All public art is ideally in dialogue with the space it exists in. And that includes other sculptures.")

Nicholas O'Donnell says that "VARA confers a 'right of integrity' on works of recognized stature. ... The right of integrity is exactly what it sounds like: a protection against the physical, not the conceptual, integrity of the work."

And a dissenting view, from this Artsy piece:  "[T]eacher and lawyer Sergio Muñoz Sarmiento, who founded New York’s Art & Law Program, thinks [VARA] could have a more expansive application. As it stands, the wording of the law never explicitly limits the definition of manipulation to physical alterations.  As such, Sarmiento believes that Di Modica does have 'legitimate claims' under VARA—which, despite being frequently invoked [in] this and other cases, remains 'very untested' in court. Sarmiento also noted that, depending on what constitutes the work, Charging Bull may also have been physically modified. The cobblestone around and under the bull ... was extended during the installation of Fearless Girl, through the addition of more stones ...."

UPDATE:  Picasso suing to remove that damn girl sculpture by Degas.

"LA Gallery Says It Was Sold Forged Warhols"

Story here.  The gallery -- the one that says it was ripped off -- claims to have "the laregest gallery-owned Warhol collection in the world.” Will Goetzmann says the "varieties of art market fraud are endless."  The Art Market Monitor says "the scam underscores a truism of art forgery, it more often takes place in obscure corners of markets where less might be known and buyers might be more easily fooled."

"An invoice cannot be said to be dispositive of ownership."

An interesting art-related decision in the matrimonial context.  The question was whether certain works of art purchased during the marriage were the husband's separate property or were jointly held.  The court held that the fact that the invoice was in the husband's name alone was not the end of the inquiry:  "We conclude that title to personalty cannot be determined by relying solely upon an invoice. In determining title to the artwork in question, all the facts and circumstances of the acquisition and indicia of ownership must also be considered."

Physical Graffiti (UPDATED 4X)

The 5Pointz case is going to trial; cross motions for summary judgment were denied.  I think it's being a little overhyped -- it's been called a "major win" for the artists and "a groundbreaking decision" -- but all that really happened is the Court ruled that the question whether the works are of "recognized stature" is a question of fact for a jury to decide.  In 2013, the Court had already decided that their ephemeral nature didn't disqualify graffiti works from VARA protection.

Amy Adler notes that "there’s something ironic about trying to preserve an art form that’s about transience." (Relatedly, I'll be curious to see the plaintiffs' damages theory at trial.)

UPDATE:  More from the New York Times.

UPDATE 2:  Ann Althouse:  "How can the artists can win this? Relying on Visual Artists Rights Act of 1990, they claim entitlement to notice in writing 90 days before the destruction of the art, which, they say, would have given them the opportunity to remove or photograph the work. The artists are not arguing that the owner can't tear down his building."

UPDATE 3:  Tim Schneider:  "[D]ue to the terms of the Visual Artists Rights Act (VARA), a jury will likely decide whether the [artists] receive monetary damages largely based on whether their destroyed artworks achieved 'recognized stature' in the eyes of supposed industry experts. ... [T]his question reveals the degree to which art is ensconced as an insider's niche, especially here in the US. It isn't just that self-interested experts work daily to reinforce the perception that art depends on their opinions. It's that our legislators have literally made their judgments on this topic the law of the land."

UPDATE 4:  Related: a letter from the Art Law Committee of the New York City Bar Association on the "recognized stature" requirement.

"The old typewriter turned out to be the smoking gun in the case."

A statement from the FBI on the Spoutz forgery case (via The Art Market Monitor).

Tell me again about the public trust (Toledo Museum of Art selling off over 140 pieces edition)

Because the proceeds will go into something called a "new acquisitions fund," the sale is ethical. Because the proceeds will go into something called a "new acquisitions fund," it doesn't matter that, having fallen under the aegis of a museum, those 140 works were held in the public trust, to be accessible to present and future generations.  No potential future donor will ask, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?  Don't be so touchy.

"In an age where some artists are calling for the destruction of art, others are calling for its preservation."

Link here.

Incidence in Versailles

The Art Newspaper reports that a French court has ruled that artist resale royalties must always be paid by the seller (rather than the buyer).  Michael Rushton says the "evidence suggests that sellers would bear the burden regardless of the legal ruling," that the question is answered "by economics, not by the legal assessment of who needs to pay."

Nothing to Fear

Nicholas O'Donnell calls bull on possible copyright infringement claims against the "Fearless Girl" sculpture that was recently installed in the Financial District.

"F.B.I. Reunites a Rockwell, Stolen 40 Years Ago, With Its Owners"

New York Times story here.

"Their theory for now is that the thieves dragged the coin through the museum, out the window and then along the railway track, possibly reaching a park on the opposite bank of the river near the Hackescher Markt, a public square in Berlin that is home to a number of late-night bars and cafes."

Thieves stole a 220-pound gold coin -- about the weight of a refrigerator -- from a museum in Berlin.

"Edelman Arts, the company of former Wall Street financier turned art dealer Asher Edelman, filed a lawsuit seeking to complete a $26.8 million sale of four works by Keith Haring and one by Edvard Munch."

Story here.

Do we need more security at museums?

Earlier this month, a visitor to the National Gallery in London slashed a Thomas Gainsborough painting.  (It went back on view yesterday.)  Noah Charney has a suggestion:

"There is no such thing as a risk-free museum, but there is a way to minimize risk of damage and theft, a way that many top museums have chosen (the Louvre, the Prado, the Van Gogh, the Uffizi, to name a few), but which the National Gallery has not — install airport-style security at the entrance. It is a modest inconvenience to museum-goers, but one that they will be used to, from travel in this day and age: moving single-file through a metal detector and having their bags scanned before entering the museum to explore freely. This method would prevent attacks with metal objects, like knives and screwdrivers, and would be a strong deterrent to any attacks at all — potential perpetrators are likely to be scared off by having to pass under the scrutiny of security and move slowly into the museum, clearly filmed on CCTV, and with nervous or suspicious behavior likely to be noted before they even enter. In an era of concern over terrorist attacks on populous sites, this is also a good idea. Of course, a determined baddie can still find ways to damage art, but the risk is mitigated."

"Prosecutors seek 4 years for ex-Field Museum worker who stole nearly $1 million"

Story here.

Could blockchain pave the way for resale royalties? (UPDATED)

Interesting discussion here.

UPDATE:  Michael Rushton tweets:  "That there might be a technology for facilitating it does not make resale royalties a sound idea."

Artist convicted of murder

South African photographer Zwelethu Mthethwa, represented by Jack Shainman Gallery.  Story here.

Held in the public ruff

The Museum of the Dog is coming to New York.

"The jury could have determined that the actual use made by Defendants of the Plaintiff's work was worth $75,000 per infringing copy."

Findlaw:  Sculptor Wins Big in 9th Cir. After Billionaire Copies His Work.

Decision here.  Background here.

"Art Dealer Ordered to Repay Profits From Painting Sale"

Story here.  Decision, by Justice Ramos, here.

Lawsuit Over Stolen Johns Drawings

Artlyst:  "A Canadian gallery has brought a federal complaint against a New York art dealer alleging he tried to give works by the American ‘Pop’ artist Jasper Johns official provenances."

This arises from the theft of works by a longtime studio assistant of Johns, which resulted in an 18-month prison sentence for the assistant.

Greg Allen says the new suit "is bonkers. Dorfman [the dealer] is in deep, pocketed millions, yet not in jail."

"Selfie Snapper Smashes Kusama Pumpkin Sculpture at Hirshhorn Museum"

Story here.  Will Goetzmann tweets that's a "[r]isk of people interacting [with] art. Her work is engaging and fun. Keep it accessible."

"Removal of Student Painting in Capital Leads to Federal Lawsuit"

New York Times story here.  Analysis from First Amendment scholar Eugene Volokh here.

Eight Years for Spider-Man

NYT story here.

"Rubin Museum of Art co-chair claims couple conned her into paying $18M for knockoffs of ancient Indian jewelry"

Daily News story here.  "'While Rubin was quite knowledgeable about various art forms, she had no particular expertise in jewelry,' the suit says."

"We’re looking at each other, and we’re like, ‘I think he just stole those? We should probably do something.'"

The Boston Globe:  Attempted art heist foiled by BU students.

"I think you've been leading a fraudulent life for a very long time."

"A Michigan art dealer was sentenced Thursday to more than three years in prison for what prosecutors said was an extensive scheme to sell fake works purportedly by renowned artists."

"Sotheby’s called it 'undoubtedly a forgery' based on research conducted by Orion Analytical, a scientific analysis firm that Sotheby’s acquired last year"

NYT:   Sotheby’s Files Second Lawsuit Over Works It Calls Fake.

"[Orion's] Mr. Martin said that he took 21 paint samples from many different areas of the paint layer and found the 20th-century pigment throughout the work, including in areas of the painting that were never restored. 'It’s a bit like taking the pulse of a corpse 21 times,' he said."

"If you are not going to charge for admission you have to find a way to support it."

Charles Saatchi is selling off 100 works from his art collection to help fund free admission to his gallery.

Of course, if a U.S. museum did this in order to provide free admission, there would be rioting in the streets. As Tim Schneider points out:

"Saatchi's sell-off represents one clear advantage their founders hold over public nonprofit institutions. In the US, influential professional associations like the AAMD ... hold that it's cultural sacrilege to deaccession even a single work to cover operational costs, let alone more than one... despite that they also judge it A-OK to divest pieces in order to bankroll new acquisitions. ...  That may not make private museums better places to appreciate art than public ones. But in at least one important respect, it does empower them to run as better businesses."

"All images of public-domain artworks in the Metropolitan Museum of Art’s collection — about 375,000 — are now free for anyone to use however they may please."

"The museum announced on Tuesday that it had changed its open access policy to allow free, unrestricted use of any images of artworks in the public domain, using the license designation Creative Commons Zero."

"In an unusual case that marks the second time in recent years that an artist has been pressured over a failure to authenticate a work ..."

"... actor David Spade has filed a lawsuit against photographer Peter Beard, his wife Nejma, and former Beard dealer Peter Tunney over a work he purchased 15 years ago and is currently trying to sell."

It's hard to tell exactly what's going on, but this seems like a much more complicated case than Peter Doig's. Spade apparently bought the works from Tunney's Time Is Always Now gallery, which, at one Time (but not Now), clearly represented Beard.

"I threw away $100m of Picasso and Matisse art, says dealer in Paris theft trial."

"Neither the investigating judge nor other defendants at the trial believe Birn’s claims."

"Ms. Rosales, I’m not putting you back in jail."

The NYT:  Dealer in Art Fraud Scheme Avoids Prison:

"In her sentencing, the judge, Katherine Polk Failla of Federal District Court in Manhattan, cited defense arguments that Ms. Rosales had been intimidated and abused by her former boyfriend, who is also charged in the case and whom the defense described in court papers as the mastermind of the scheme. She also feared being separated from her daughter, according to the defense."

"Ms. Bruguera, one of the marquee artists in the new lineup, said ... that she did not want her work to be included in the show because she felt that Ms. Block’s exchange initiative relied too closely on the Cuban government, which she opposes."

NYT:  Artist Pulls Her Work From Bronx Museum of the Arts Cuba Exhibition.

"The livestream is part of Mr. LaBeouf’s latest art project, 'He Will Not Divide Us,' a collaboration with the artists Nastja Sade Ronkko and Luke Turner."

"The actor and performance artist Shia LaBeouf was arrested early Thursday morning on misdemeanor assault and harassment charges while protesting President Trump at a livestream art installation in Queens."

"This is the second painting that has been deemed a fake in what may be a widening old masters’ forgery case that could go back several years."

I'm a little late on this one, but Sotheby's is suing a collector who consigned what was thought to be a Parmigianino to it in 2012.  It sold for $842,500.

Tim Schneider connects the story to some other recent Sotheby's-related news:  "The testing that pegged 'St. Jerome' as counterfeit was performed by Orion Analytical, the scientific-research firm that Tad Smith and company just acquired last month to help combat the industry's persistent forgery problem. While the house undoubtedly would have preferred to uncover the foul play pre-sale, the Parmigianino case doubles as a niche marketing opportunity. If you're a dealer or collector specializing in artwork of ANY past era, wouldn't you prefer to do business with Sotheby's––the auction house that can now definitively prove the legitimacy of the works it offers as a normal part of the consignment process––instead of Christie's, which has made no obvious effort to update its practices on this potentially costly front?"

Motion to dismiss in the Golub fraud case

Story here.  Background here.

"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.