Apparently if you get a timed ticket to Thomas Heatherwick's new "Vessel" at Hudson Yards, they make you sign a photo release.
Cornell Tech's James Grimmelmann isn't having it:
"What a bad idea — and also a badly drafted clause. … It's even broader than photographs taken inside the Vessel. It also covers photographs 'depicting or relating to the Vessel' even if not taken from inside. So if you 'agree' to the license, it even applies to your later photographs of the Vessel taken from across the river. It also applies to 'audio recordings'(!) again regardless of where they were recorded. So if you go into the Vessel and then make a podcast about your visit, they claim a right in that too. On the other hand, they do stop short of claiming full ownership of your photos, audio, and video. They take only a license to use your media, plus a personal promise that you won't make commercial uses. So noncommercial postings are okay, it appears. But because they only take a personal promise not to make commercial uses, they have no recourse if *someone else* makes a commercial use of your media. So: Go to the Vessel. Take a photo or a video. Put it online with a Creative Commons Attribution license. You're not making a commercial use, and anyone else who does never agreed to the Vessel's terms. It's always amusing to see a clause this overreaching and also this badly drafted, like watching the mustache-twirling villain slip on the banana peel he dropped and fall face-first into a giant cake."
UPDATE: The New York Times picks up the story: Following Outcry, Hudson Yards Tweaks Policy Over Use of Vessel Pictures. It's a good example of how, in the age of social media, this kind of copyright overreach is no longer tenable. The backlash can be brutal.
Monday, March 18, 2019
Tuesday, March 12, 2019
"It doesn’t benefit anyone when there are thousands, if not millions, of works of art that are languishing in storage."
So says Glenn Lowry in this piece by Robin Pogrebin, not realizing that, when it comes to the public trust, "does this benefit anyone?" is not a relevant question. What matters is ethics: being really, extremely, very ethical. And non-repulsive.
Lowry was already in my Deaccessioning Hall of Fame.
He's joined now by Gary Tinterow:
"'If an institution is faced with an existential threat, isn’t it better for the institution to survive with some works of art than no works of art?' countered Gary Tinterow, director of the Museum of Fine Arts, Houston, defending the Shelburne Museum in Vermont’s decision to sell $25 million worth of art in 1996."
(Deaccession Police answer: no, because that would be unethical.)
Anne Pasternak adds that "there is increasing discussion these days about revisiting the strictures of deaccessioning policies. But she acknowledged 'there is a lot of fear around this conversation.'"
And Charles Venable asks:
"What is the balance between almost obsessively art collecting and spending vast amounts of resources on it? Are we really just addicts collecting objects that our curators bring in generation after generation?"
Or, as I said just a couple days ago, even assuming there is such a thing as the public trust (and there's not) "the point of the trust should not be just to keep accumulating [works of art] but to benefit the public -- and that could be by diversifying the collection, or providing free admission, or upgrading the facilities, or anything that improves their access to and engagement with the collection."
A frightening thought, I know. You can see why there's a lot of fear around the conversation.
Lowry was already in my Deaccessioning Hall of Fame.
He's joined now by Gary Tinterow:
"'If an institution is faced with an existential threat, isn’t it better for the institution to survive with some works of art than no works of art?' countered Gary Tinterow, director of the Museum of Fine Arts, Houston, defending the Shelburne Museum in Vermont’s decision to sell $25 million worth of art in 1996."
(Deaccession Police answer: no, because that would be unethical.)
Anne Pasternak adds that "there is increasing discussion these days about revisiting the strictures of deaccessioning policies. But she acknowledged 'there is a lot of fear around this conversation.'"
And Charles Venable asks:
"What is the balance between almost obsessively art collecting and spending vast amounts of resources on it? Are we really just addicts collecting objects that our curators bring in generation after generation?"
Or, as I said just a couple days ago, even assuming there is such a thing as the public trust (and there's not) "the point of the trust should not be just to keep accumulating [works of art] but to benefit the public -- and that could be by diversifying the collection, or providing free admission, or upgrading the facilities, or anything that improves their access to and engagement with the collection."
A frightening thought, I know. You can see why there's a lot of fear around the conversation.
Sunday, March 10, 2019
"Supreme Court Holds that Copyright Owners Must Wait for Registration to Sue"
Resolving a circuit split (some had held that just applying for registration was enough). News story here. Opinion here. Good summary of what it means here.
Saturday, March 09, 2019
"With sale of Rothko, is SFMOMA creating a heritage, or dismantling one?"
I'm a little late to it, but San Francisco Chronicle art critic Charles Desmarais has a piece on SFMOMA's decision to sell a major Rothko and use the proceeds to diversify its collection. He discusses a number of reactions to the news, including mine:
"Donn Zaretsky, publisher of the Art Law Blog, is a ceaseless opponent of the strict guidelines museum associations place on the use of deaccession funds (they can only be used to buy works of art that are meant to enhance the collection, and not be sold off to raise money for general operating support or capital needs). He titled a post, 'Tell me again about the public trust (1960 Rothko edition).' It was a reference to the argument, correct in my view, that museums have an ethical responsibility to preserve and cultivate collections for the benefit of their communities."
And then he goes on to say:
"Few who demand that museum collections be respected as a public trust would say that every object has equal status, and an equally permanent claim. Rather, it is the collection as a whole that should be preserved for future generations. I, for one, have no problem with pruning the tree to promote greater vigor of the larger organism."
This is interesting, in a couple of ways.
First, this is the first time I've seen someone assert that, when it comes to the public trust, not every object has "equal status" or an "equally permanent claim." The idea seems to be that some works are held more in the public trust than others -- that some are held extremely in the public trust and others are held in the public trust but not so much. But if this is true, how do we know which works are in which category? Is there a database somewhere that includes their level of public trust-ness along with their provenance and exhibition histories? "This work is a 7 on the Public Trust Scale and that one is a 4"?
The other idea here, and this one I have heard others express from time to time, is that it's not the individual works in a museum's collection that are held in the public trust but, rather, the collection as a whole. The analogy, I take it, is to an investment portfolio. If I am the trustee of your trust, it doesn't matter if I sell off this Google stock or those shares in Apple so long as the portfolio as a whole is not dissipated. The same is true here, the argument goes: it doesn't matter if you sell the Rothko "stock" as long as you replace it with other artist stocks.
It's an interesting move, and probably the only way to salvage anything of the "public trust" argument, but ultimately I think it's not persuasive. First of all, Google and Apple shares in a trust can be sold and the proceeds used for things other than buying different stocks -- they can be used to pay trustee commissions and accounting fees and legal fees (thank God), for example -- and, much more importantly for present purposes, there is a beneficiary of the trust and the point of the trust is to benefit that beneficiary and if that means selling stocks to pay for their education expenses, or housing, or medical expenses, that's perfectly fine, in fact it's the whole point of the trust. In the public trust analogy, the beneficiary is, well, the public and the point of the "trust" should not be just to keep accumulating shares of stock (works of art) but to benefit the public -- and that could be by diversifying the collection, or providing free admission, or upgrading the facilities, or anything that improves their access to and engagement with the collection.
Look, at the end of the day the notion of the public trust is just a metaphor, meant to express the (absolutely correct) idea that the collection is really important to us and the works that make it up should not be disposed of lightly. But when we have a good reason to -- whether it's to buy more art, or to diversify the collection, or to keep from going out of business, or anything else that counts as a good reason -- that should be fine, it's not a violation of any sort of trust, it's not unethical, it's not Stalin-esque. The public trust (if it existed) should be for the benefit of the public.
"Donn Zaretsky, publisher of the Art Law Blog, is a ceaseless opponent of the strict guidelines museum associations place on the use of deaccession funds (they can only be used to buy works of art that are meant to enhance the collection, and not be sold off to raise money for general operating support or capital needs). He titled a post, 'Tell me again about the public trust (1960 Rothko edition).' It was a reference to the argument, correct in my view, that museums have an ethical responsibility to preserve and cultivate collections for the benefit of their communities."
And then he goes on to say:
"Few who demand that museum collections be respected as a public trust would say that every object has equal status, and an equally permanent claim. Rather, it is the collection as a whole that should be preserved for future generations. I, for one, have no problem with pruning the tree to promote greater vigor of the larger organism."
This is interesting, in a couple of ways.
First, this is the first time I've seen someone assert that, when it comes to the public trust, not every object has "equal status" or an "equally permanent claim." The idea seems to be that some works are held more in the public trust than others -- that some are held extremely in the public trust and others are held in the public trust but not so much. But if this is true, how do we know which works are in which category? Is there a database somewhere that includes their level of public trust-ness along with their provenance and exhibition histories? "This work is a 7 on the Public Trust Scale and that one is a 4"?
The other idea here, and this one I have heard others express from time to time, is that it's not the individual works in a museum's collection that are held in the public trust but, rather, the collection as a whole. The analogy, I take it, is to an investment portfolio. If I am the trustee of your trust, it doesn't matter if I sell off this Google stock or those shares in Apple so long as the portfolio as a whole is not dissipated. The same is true here, the argument goes: it doesn't matter if you sell the Rothko "stock" as long as you replace it with other artist stocks.
It's an interesting move, and probably the only way to salvage anything of the "public trust" argument, but ultimately I think it's not persuasive. First of all, Google and Apple shares in a trust can be sold and the proceeds used for things other than buying different stocks -- they can be used to pay trustee commissions and accounting fees and legal fees (thank God), for example -- and, much more importantly for present purposes, there is a beneficiary of the trust and the point of the trust is to benefit that beneficiary and if that means selling stocks to pay for their education expenses, or housing, or medical expenses, that's perfectly fine, in fact it's the whole point of the trust. In the public trust analogy, the beneficiary is, well, the public and the point of the "trust" should not be just to keep accumulating shares of stock (works of art) but to benefit the public -- and that could be by diversifying the collection, or providing free admission, or upgrading the facilities, or anything that improves their access to and engagement with the collection.
Look, at the end of the day the notion of the public trust is just a metaphor, meant to express the (absolutely correct) idea that the collection is really important to us and the works that make it up should not be disposed of lightly. But when we have a good reason to -- whether it's to buy more art, or to diversify the collection, or to keep from going out of business, or anything else that counts as a good reason -- that should be fine, it's not a violation of any sort of trust, it's not unethical, it's not Stalin-esque. The public trust (if it existed) should be for the benefit of the public.
Saturday, March 02, 2019
"Such a wide discrepancy in valuation could be a concern for the Internal Revenue Service, should Mr. Benioff wish to claim the donation on his tax return ..."
The Times has a story today about tech billionaire Marc Benioff, who bought a Hawaiian war god sculpture for $7.5 million at auction and then donated it to a museum in Honolulu … but now "some international experts say the piece could be from the 20th century and worth less than $5,000."
I discussed another case involving tax deductions for fakes here, but in this case it's far from established that the piece is inauthentic.
I discussed another case involving tax deductions for fakes here, but in this case it's far from established that the piece is inauthentic.
"Art dealer Philippe Hoerle-Guggenheim, who has earned fawning media coverage for his flashy Chelsea gallery and famous name, is facing a lawsuit over allegedly accepting money for artworks—and then failing to deliver them."
Story here. "The lawsuit also gets personal, questioning Hoerle-Guggenheim’s alleged ties to Solomon R. Guggenheim."
Sunday, February 24, 2019
"The company that commissioned 'Fearless Girl' is suing its creator."
"According to court filings dated February 14th, investment firm State Street Global Advisors (SSGA) is claiming that the sculptor, Kristen Visbal, is 'weakening and adulterating the "Fearless Girl" message' by selling copies of the statue. The firm alleges that the artist has made at least three unauthorized reproductions of the statue so far: one for an Australian law firm, one for the owner of the Grand Hotel in Oslo, and a third that Visbal brought to this year’s Women’s March in Los Angeles."
Felix Salmon: "lolololol."
Nicholas O'Donnell: "For something that was commissioned as PR, this is an odd PR move."
Background: here.
Felix Salmon: "lolololol."
Nicholas O'Donnell: "For something that was commissioned as PR, this is an odd PR move."
Background: here.
Monday, February 18, 2019
The Swizz Beatz Resale Royalty Solution
Mentioned in this NYT Style Magazine profile:
"Dean has proposed sidestepping the law entirely and instead introducing an option for collectors selling a work through an auction house or gallery to simply check a box — yes or no (he’s been referring to it unofficially as 'the Dean Choice') — to indicate whether they’d like to give a percentage of the sale to the artist. He suggests that 3 to 5 percent is a fair commission. …
"'If you’re really a patron,' he continues, 'and really a collector, you’re gonna say yes. And I feel that in the first year we introduce this option, 30 percent are gonna say yes. And then the year after that it will be 60 percent, and then it will just keep going up from there, and then we won’t even need a rule. It will just be the thing to do. People are gonna want to check yes because the artists will know if they don’t — if they didn’t do the right thing.'"
"Dean has proposed sidestepping the law entirely and instead introducing an option for collectors selling a work through an auction house or gallery to simply check a box — yes or no (he’s been referring to it unofficially as 'the Dean Choice') — to indicate whether they’d like to give a percentage of the sale to the artist. He suggests that 3 to 5 percent is a fair commission. …
"'If you’re really a patron,' he continues, 'and really a collector, you’re gonna say yes. And I feel that in the first year we introduce this option, 30 percent are gonna say yes. And then the year after that it will be 60 percent, and then it will just keep going up from there, and then we won’t even need a rule. It will just be the thing to do. People are gonna want to check yes because the artists will know if they don’t — if they didn’t do the right thing.'"
Sunday, February 17, 2019
Tell me again about the public trust (1960 Rothko edition)
SFMoMA is selling a 1960 Rothko painting at Sotheby's in May. It's expected to sell for $35-50 million.
Now, you may think this significant work by this significant artist, having fallen under the aegis of a museum, is held in the public trust, to be accessible to present and future generations. But clearly: not the case.
And you may think potential future donors to the museum, upon hearing this news, might ask themselves "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?" But again: nope.
How hard would it be for people to just admit that all the "public trust" talk is a bunch of bullshit and replace it with a rule that says museums are permitted to sell work if but only if they have a good reason for doing so? (In this case, the good reason proffered is to diversify its holdings, to "address art historical gaps like works by women and people of color.")
Now, you may think this significant work by this significant artist, having fallen under the aegis of a museum, is held in the public trust, to be accessible to present and future generations. But clearly: not the case.
And you may think potential future donors to the museum, upon hearing this news, might ask themselves "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?" But again: nope.
How hard would it be for people to just admit that all the "public trust" talk is a bunch of bullshit and replace it with a rule that says museums are permitted to sell work if but only if they have a good reason for doing so? (In this case, the good reason proffered is to diversify its holdings, to "address art historical gaps like works by women and people of color.")
Thursday, February 14, 2019
Thirty Months for Mary Boone (UPDATED 2X)
Story here. Background here.
UPDATE: Jerry Saltz still thinks she shouldn't have gotten any jail time: "You all know where I stood on this. Make her pay it all back. Sentence her. But not jail time. So for me it seems harsh." And Paddy Johnson still begs to differ.
And here is Nate Freeman on The Rise and Fall of Mary Boone.
UPDATE 2: She's closing her gallery.
UPDATE: Jerry Saltz still thinks she shouldn't have gotten any jail time: "You all know where I stood on this. Make her pay it all back. Sentence her. But not jail time. So for me it seems harsh." And Paddy Johnson still begs to differ.
And here is Nate Freeman on The Rise and Fall of Mary Boone.
UPDATE 2: She's closing her gallery.
Tuesday, January 29, 2019
Tell me again about the public trust (Zao Wou-Ki "masterwork" edition)
The Guggenheim is deaccessioning a 1958 Zao Wou-Ki painting. It's estimated at $7.7-10 million.
Because the sale proceeds will "go toward the museum's art fund," it's not the case that the work is held in the public trust, to be accessible to present and future generations.
Judge and Mrs. Samuel I. Rosenman bought the work and donated it to the Guggenheim in 1964 but, again because the sale proceeds will go towards the museum's art fund, it's not the case that potential future donors will say "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?" Collectors don't say that when sales proceeds go to buy more art. That's a well-established empirical fact.
So, so very ethical.
Because the sale proceeds will "go toward the museum's art fund," it's not the case that the work is held in the public trust, to be accessible to present and future generations.
Judge and Mrs. Samuel I. Rosenman bought the work and donated it to the Guggenheim in 1964 but, again because the sale proceeds will go towards the museum's art fund, it's not the case that potential future donors will say "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?" Collectors don't say that when sales proceeds go to buy more art. That's a well-established empirical fact.
So, so very ethical.
Saturday, January 26, 2019
"The Manhattan Supreme Court suit filed Wednesday is the latest salvo fired in a dysfunctional family’s soap opera."
The New York Post: Family locked in bitter battle over Basquiat paintings.
Related salvo, from last spring.
Related salvo, from last spring.
Sunday, January 20, 2019
"The text messages suggest a wider gulf in which Mr. Indiana may not have been fully aware of the art being designed under his name."
NYT: Private text messages entered as evidence in a legal dispute raise new questions about whether the artist fully designed his final works.
Christine Farley: "Everything about this story is sad."
Christine Farley: "Everything about this story is sad."
Saturday, January 19, 2019
"An artist resale royalty is fair in principle for all visual artists. It would also address lingering inequities born of racism and allow the families of artists excluded from the art market to be appropriately recompensed." (UPDATED)
Maxwell Anderson had a recent piece in The Art Newspaper arguing in favor of resale royalty legislation, which he says "is expected to be reintroduced" in the new Congress.
One of the arguments people often make against the resale royalty is that it's not necessary: that artists whose prices go significantly up reap the benefit of that when they sell their own work. Anderson points out that one group of artists that's not always true for is "historically disadvantaged artists who have been left out of the American canon of art for reasons of race, gender or other socio-economic limitations. This is especially true of the many artists who lack representation or a presence in the art market until the end of their careers or posthumously." For example: "Consider the Gee’s Bend quilters of Alabama: with no access to the gallery system, many of their artworks were purchased by Atlanta collector William S. Arnett at a time when no viable market existed for their work. … Like many artists, the value of the quilt makers’ works has increased over time. But many of the artists have either passed away or are no longer producing works, and thus an improved market came too late to benefit them in their prime. One could cite many examples of this discrepancy throughout history."
UPDATE: Brian Frye is unimpressed: "Even the best arguments in favor of statutory artist resale royalties are comically bad. Yes, it is possible to hunt up artists who didn't profit from work that later became valuable. But they deserve money because they are poor, not because they are artists."
One of the arguments people often make against the resale royalty is that it's not necessary: that artists whose prices go significantly up reap the benefit of that when they sell their own work. Anderson points out that one group of artists that's not always true for is "historically disadvantaged artists who have been left out of the American canon of art for reasons of race, gender or other socio-economic limitations. This is especially true of the many artists who lack representation or a presence in the art market until the end of their careers or posthumously." For example: "Consider the Gee’s Bend quilters of Alabama: with no access to the gallery system, many of their artworks were purchased by Atlanta collector William S. Arnett at a time when no viable market existed for their work. … Like many artists, the value of the quilt makers’ works has increased over time. But many of the artists have either passed away or are no longer producing works, and thus an improved market came too late to benefit them in their prime. One could cite many examples of this discrepancy throughout history."
UPDATE: Brian Frye is unimpressed: "Even the best arguments in favor of statutory artist resale royalties are comically bad. Yes, it is possible to hunt up artists who didn't profit from work that later became valuable. But they deserve money because they are poor, not because they are artists."
"Athletes Don’t Own Their Tattoos. That’s a Problem for Video Game Developers."
Another interesting story from around the holidays: the New York Times reports on a series of lawsuits against sports video game makers by tattoo artists (for example, where the LeBron James character in a video game includes LeBron James's actual tattoos).
NYU's Christopher Sprigman says:
"All seem to agree that 1) tattoos [are] copyrightable, yet 2) tattooed person has [an] implied license to walk around in public. But why doesn’t [the] implied license include [the] power to authorize reproduction/distribution of one’s image, w/tats? Isn’t that protected by 1st Amendment?"
Annemarie Bridy agrees:
"The implied license should cover any actual or virtual appearance of the tattoo as long as it’s incidental to the appearance of the tattooed person."
(To which Sprigman responds: "Agreed. This entire developing genre of 'let's shake down the video game companies w/some new tattoo copyright litigation' should end.")
NYU's Christopher Sprigman says:
"All seem to agree that 1) tattoos [are] copyrightable, yet 2) tattooed person has [an] implied license to walk around in public. But why doesn’t [the] implied license include [the] power to authorize reproduction/distribution of one’s image, w/tats? Isn’t that protected by 1st Amendment?"
Annemarie Bridy agrees:
"The implied license should cover any actual or virtual appearance of the tattoo as long as it’s incidental to the appearance of the tattooed person."
(To which Sprigman responds: "Agreed. This entire developing genre of 'let's shake down the video game companies w/some new tattoo copyright litigation' should end.")
"[B]ut didn't it all work out in the end?"
Still catching up on some year-end reading, and came across this, from Michael Hiltzik's list of the 10 best books he read in 2018, one of which was John Anderson's “Art Held Hostage: The Battle over the Barnes Collection”:
"Eventually, after intricate legal maneuvering, the entire collection was moved in 2012 to a new home in Philadelphia, into a painstaking replica of the interior of the Merion gallery. Art critics were divided, with some, including Christopher Knight of the Los Angeles Times, remaining unhappy, while others professed themselves to be pleasantly surprised at the resolution. What remains clear is that the relocation finally opened up this outstanding collection to full public view. That points to a question that neither Anderson nor Argott adequately answers — what was wrong about moving the Barnes? It was locked in a community that didn’t want it, run by a board that couldn’t manage it, was all but invisible to the public and was threatened with physical deterioration."
Good question.
"Eventually, after intricate legal maneuvering, the entire collection was moved in 2012 to a new home in Philadelphia, into a painstaking replica of the interior of the Merion gallery. Art critics were divided, with some, including Christopher Knight of the Los Angeles Times, remaining unhappy, while others professed themselves to be pleasantly surprised at the resolution. What remains clear is that the relocation finally opened up this outstanding collection to full public view. That points to a question that neither Anderson nor Argott adequately answers — what was wrong about moving the Barnes? It was locked in a community that didn’t want it, run by a board that couldn’t manage it, was all but invisible to the public and was threatened with physical deterioration."
Good question.
Sunday, January 13, 2019
"The divorce also threatens to expose the private dealings of one of the wealthiest and most influential families in the art world. Mr. Mugrabi, 47, is the scion of a powerful art-dealing family that is reportedly worth $5 billion and owns some 1,000 works by Warhol, making it the world’s largest private holding."
The New York Times on Libbie and David Mugrabi's divorce.
"[A]s long as dealers who show a lot of women artists pay those artists i am good with the dealer cheating on her taxes. It’s a wee bit bad-ass too. But you want ‘em to pay taxes, cool by me. She has to now. You win." (UPDATED)
Tweets Jerry Saltz, who was one of many "prominent art world figures" who wrote letters to the sentencing Judge on Mary Boone's behalf.
Paddy Johnson isn't having it:
"Taxes pay for food stamps, Medicare and the NEA. It’s not bad ass to opt out of those responsibilities so you can make improvements to your million dollar apartment and not stealing from your artists too doesn’t make it any better."
Nor is Rachel Wetzler:
"I'm not exactly cheering for Mary Boone to go to prison, but how warped does your worldview have to be to believe that it's OK for a millionaire to dodge taxes because you like her gallery programming?"
Nor is Columbia's Shamus Kahn:
"Spare us your righteous indignation about elites. Guess it doesn’t apply when they’re liberal and your friends."
UPDATE: Saltz waves the white flag: "BOY did I call this one wrong."
Paddy Johnson isn't having it:
"Taxes pay for food stamps, Medicare and the NEA. It’s not bad ass to opt out of those responsibilities so you can make improvements to your million dollar apartment and not stealing from your artists too doesn’t make it any better."
Nor is Rachel Wetzler:
"I'm not exactly cheering for Mary Boone to go to prison, but how warped does your worldview have to be to believe that it's OK for a millionaire to dodge taxes because you like her gallery programming?"
Nor is Columbia's Shamus Kahn:
"Spare us your righteous indignation about elites. Guess it doesn’t apply when they’re liberal and your friends."
UPDATE: Saltz waves the white flag: "BOY did I call this one wrong."
Saturday, January 12, 2019
"He is very proud of his work, which he is excellent at."
The New Yorker: The French Burglar Who Pulled Off His Generation's Biggest Art Heist.
Background on the man the French press dubbed Spider-Man here.
Background on the man the French press dubbed Spider-Man here.
Another Shagalov Lawsuit
In this one he is suing Paul Kasmin Gallery for $8.5 million.
Previous Shagalov lawsuits discussed here.
Previous Shagalov lawsuits discussed here.
"The exhibition will be accompanied by a symposium exploring strategies 'to torpedo the art market while simultaneously giving it new momentum,' according to a museum statement."
The Art Newspaper: German museum to show shredded Banksy work.
Background here on the shredded Banksy work, which, oddly enough, did not seem to torpedo the art market.
Background here on the shredded Banksy work, which, oddly enough, did not seem to torpedo the art market.
"The question here is really an unlitigated question, which is what is the minimum quantum necessary for a choreographic work?"
The New York Times on the spate of lawsuits against video game makers for their use of popular dance moves within the games.
Wednesday, January 09, 2019
"Christie’s Sale of Francis Bacon Painting Draws Suits"
The work had been pledged as collateral for a $4.9 million loan. Details here. Felix Salmon declares the suit "BONKERS."
"Mary Boone, Art Dealer, Cites Early Trauma in Bid to Avoid Prison" (UPDATED)
New York Time story here. She plead guilty in September to tax fraud. Sentencing is scheduled for later this month.
UPDATE: Prosecutors are seeking 30 to 37 months.
UPDATE: Prosecutors are seeking 30 to 37 months.
Sunday, December 16, 2018
Saturday, December 15, 2018
Recognize this practice for what it is
I've basically been arguing here for a decade now that there can be two coherent theories on deaccessioning.
You can think it's always wrong -- that museums hold their works in the public trust, for the benefit of present and future generations, and they should never be sold.
Or you can think works can, on occasion, be sold, if there is a sufficient reason. That reason can be to acquire other work. Or it can be something else (e.g., to keep from going out of business). You have to look closely at each individual case and decide. (This is my view.)
It's the middle view -- the view of the Deaccession Police, the view of the AAMD, the conventional wisdom in the field -- that is, frankly, ridiculous. It holds that deaccessioning is deeply unethical and a violation of the public trust if the proceeds of sale are used for Purpose X (anything other than buying art) … but completely fine if the proceeds are used for Purpose Y (buying art). I've never understood how that could be at all persuasive to anyone.
Former museum director Steven Miller has a piece in The New Criterion coming at it largely from the first perspective, and calling out "the obvious hypocrisy of voicing concern for the survival of collections, only to sell them into oblivion":
"Though it is largely accepted within the profession, deaccessioning is still a controversial issue. The debate surrounding it surfaces with alarming frequency. For the most part, however, complaints are rarely directed at the practice itself, but at what happens if any profits realized from the sale of the museum collections are 'misused.' Furor tends to erupt only when income will cover operating expenses or capital and debt payments, rather than pay for future acquisitions. Oddly, controversy about commercial deaccessioning sidesteps the fact that, unless the purchase is made by another museum, objects will probably be lost to the public forever. How does that practice align with the preservation imperative museums repeatedly embrace …? Put simply: it does not."
He adds that once a work is sold, "we might as well have tossed them on a bonfire. This is a total abrogation of museological duty."
What's his answer? First, "recognize this practice for what it is and acknowledge that it contradicts a museum's commitment to preserving and caring for its collections." And then he ends up signing on to the Ellis Rule:
"Correcting the unfortunate results of unbridled commercial deaccessioning is simple. An item can be deaccessioned and kept by the museum for educational purposes. Or it can be sold or given to another museum. Everyone wins in this situation …. One museum's loss can always be another's gain."
You can think it's always wrong -- that museums hold their works in the public trust, for the benefit of present and future generations, and they should never be sold.
Or you can think works can, on occasion, be sold, if there is a sufficient reason. That reason can be to acquire other work. Or it can be something else (e.g., to keep from going out of business). You have to look closely at each individual case and decide. (This is my view.)
It's the middle view -- the view of the Deaccession Police, the view of the AAMD, the conventional wisdom in the field -- that is, frankly, ridiculous. It holds that deaccessioning is deeply unethical and a violation of the public trust if the proceeds of sale are used for Purpose X (anything other than buying art) … but completely fine if the proceeds are used for Purpose Y (buying art). I've never understood how that could be at all persuasive to anyone.
Former museum director Steven Miller has a piece in The New Criterion coming at it largely from the first perspective, and calling out "the obvious hypocrisy of voicing concern for the survival of collections, only to sell them into oblivion":
"Though it is largely accepted within the profession, deaccessioning is still a controversial issue. The debate surrounding it surfaces with alarming frequency. For the most part, however, complaints are rarely directed at the practice itself, but at what happens if any profits realized from the sale of the museum collections are 'misused.' Furor tends to erupt only when income will cover operating expenses or capital and debt payments, rather than pay for future acquisitions. Oddly, controversy about commercial deaccessioning sidesteps the fact that, unless the purchase is made by another museum, objects will probably be lost to the public forever. How does that practice align with the preservation imperative museums repeatedly embrace …? Put simply: it does not."
He adds that once a work is sold, "we might as well have tossed them on a bonfire. This is a total abrogation of museological duty."
What's his answer? First, "recognize this practice for what it is and acknowledge that it contradicts a museum's commitment to preserving and caring for its collections." And then he ends up signing on to the Ellis Rule:
"Correcting the unfortunate results of unbridled commercial deaccessioning is simple. An item can be deaccessioned and kept by the museum for educational purposes. Or it can be sold or given to another museum. Everyone wins in this situation …. One museum's loss can always be another's gain."
Saturday, December 08, 2018
Settlement in the Anish Kapoor-N.R.A. Lawsuit
Story here. Background here. Kapoor declares victory. On the other side, the N.R.A. says the suit was "baseless" but that "it agreed to remove the image 'to avoid the cost and distraction of litigation.' It also said that the settlement does not require the group to pay Mr. Kapoor any money."
Monday, December 03, 2018
Saturday, December 01, 2018
"Graffiti Artists are Gaining Recognition—and Rights"
Good overview of recent developments from Bennington's K.E. Gover. An excerpt:
"Unlike traditional forms of visual art, aerosol art on building walls cannot easily be bought or sold, and they are usually understood to be ephemeral by their very nature. In one sense, this makes exterior aerosol art an uncomfortable fit for the paradigmatic VARA cases presumably intended by Congress when it passed the statute nearly thirty years ago. On the other hand, however, it highlights the interest that the 5 Pointz artists had in the preservation of their works: they could not sell them, but their ongoing presence could lead to future commissions and professional opportunities. In that sense, moral rights, despite their designation as non-economic rights, can have very real material consequences for artists. Reputation is a form of wealth."
Hail Fredonia?
SUNY Fredonia sold a painting by the Georgian painter Niko Pirosmani for $2.3 million at Sotheby's London this week.
Question: was this sale "ethical"? How should the Deaccession Police react to it?
The answer is it depends. Was the painting held in something the university called a "museum"? If so, awful, unbearable, a massive crisis, Stalin-esque.
Or was it held other than as part of a university museum -- in which case, all is fine, yawn, nothing to see here.
In this case, according to Inside Higher Ed, the painting was in something called "the Stefan Zweig Collection," which "is not part of a university museum and contains more than just artwork." So nothing to worry about, totally ethical.
You tell me how any of that makes sense as a way to evaluate these sorts of sales.
Question: was this sale "ethical"? How should the Deaccession Police react to it?
The answer is it depends. Was the painting held in something the university called a "museum"? If so, awful, unbearable, a massive crisis, Stalin-esque.
Or was it held other than as part of a university museum -- in which case, all is fine, yawn, nothing to see here.
In this case, according to Inside Higher Ed, the painting was in something called "the Stefan Zweig Collection," which "is not part of a university museum and contains more than just artwork." So nothing to worry about, totally ethical.
You tell me how any of that makes sense as a way to evaluate these sorts of sales.
"People thought maybe I was rash and should put it down to one of life’s rich experiences. But people defrauding other people, especially in the art market, should not be allowed to get away with it."
Andy Hall won his fraud trial against a former college professor and her son who sold him a series of paintings they claimed were by Leon Golub. A jury awarded him $465,000 (the amount he had apparently paid for the works). Graham Bowley has the story here. Background here.
"An Artist Bought a Banksy Piece Just So He Could Destroy It"
Story here. He paid $730,000 for it and says he plans to whitewash it … and then sell it for a million dollars.
Banksy can invoke VARA to prevent this, though Guy Rub doesn't think he should be able to. And The Fashion Law blog doesn't think he will:
"The question becomes: will Banksy attempt to put a stop to English’s plan? It seems unlikely. Actually enabling English to go through with it seems like just the type of stunt and resulting publicity that Banksy is accustomed to courting. It is just barely a month after the secretive British artist saw that his famous 2006 work, Girl with Balloon, was put through a shredder just moments after it had been auctioned off for a record $1.4 million in London."
Banksy can invoke VARA to prevent this, though Guy Rub doesn't think he should be able to. And The Fashion Law blog doesn't think he will:
"The question becomes: will Banksy attempt to put a stop to English’s plan? It seems unlikely. Actually enabling English to go through with it seems like just the type of stunt and resulting publicity that Banksy is accustomed to courting. It is just barely a month after the secretive British artist saw that his famous 2006 work, Girl with Balloon, was put through a shredder just moments after it had been auctioned off for a record $1.4 million in London."
Saturday, November 03, 2018
"If the number and relevance of galleries were to decline, how might this affect artistic content?"
Tyler Cowen has some hypotheses and, like all his hypotheses, they're worth considering.
Tell me again about the public trust (one museum's 19th century photo sale seems to be the Met's gain edition)
The Times reports on a sale of a group of Carleton Watkins photographs by the Hispanic Society in New York to an "unknown donor" who is giving them to the Met.
It's presented as a good news story -- and it is ("They stay in New York but also they go somewhere where they'll be cared for and appreciated") -- but, strangely, there's no mention of how the sales proceeds will be used. We do hear that "the sale garnered more than $1 million for the Hispanic Society, whose doors are now closed because the museum is in the midst of a two-year renovation expected to cost about $15 million" -- so perhaps the implication is that the money will go towards those costs. But we don't know for sure. Don't we need to know the answer to that question before we can decide whether this sale really is the good news it's being portrayed as or, alternatively, a repulsive, unethical, Stalinesque betrayal of the public trust? (I don't, but I would think the Deaccession Police do. Sanctions may be in order.)
It's presented as a good news story -- and it is ("They stay in New York but also they go somewhere where they'll be cared for and appreciated") -- but, strangely, there's no mention of how the sales proceeds will be used. We do hear that "the sale garnered more than $1 million for the Hispanic Society, whose doors are now closed because the museum is in the midst of a two-year renovation expected to cost about $15 million" -- so perhaps the implication is that the money will go towards those costs. But we don't know for sure. Don't we need to know the answer to that question before we can decide whether this sale really is the good news it's being portrayed as or, alternatively, a repulsive, unethical, Stalinesque betrayal of the public trust? (I don't, but I would think the Deaccession Police do. Sanctions may be in order.)
Saturday, October 27, 2018
"Engelmayer found that it was too early to say whether or not Viktor would be able to prove in a non-speculative fashion that the use of her work had influenced sales of the single and album, because the discovery process is still ongoing in the case."
Artist Lina Iris Viktor survives a motion for summary judgment on a key damages issue in her infringement suit against Kendrick Lamar. You can read the decision here.
Saturday, October 20, 2018
Tell me again about the public trust (three paintings by Georgia O'Keeffe edition)
Because they are assuredly not held in the public trust, to be accessible to present and future generations, the three paintings, by Georgia O'Keeffe, are being sold by the Georgia O'Keeffe Museum, to buy … other works by Georgia O'Keeffe? Fortunately for the Museum, there's no such thing as the public trust or else some people might think this is problematic.
"This really was not a good fraud. They clearly did not think this all the way through."
AP: "A fine art consultant in New York and an interior designer in Florida stole an elderly woman’s identity and used it to bid millions of dollars on famous paintings and defraud the renowned Sotheby’s auction house, federal prosecutors allege in court filings."
"These memorandums make some good arguments, explaining why fair use favors his uses and why he did not make significant alterations to the Instagram photos. Whether the district court agrees with these arguments is another story."
Krista Cox at Above the Law on the latest developments in the ongoing Richard Prince lawsuit.
"The Legal Implications of Banksy's Destruction of 'Girl with Balloon'"
From Sheppard Mullin.
The bottom line: "Since the art work was damaged while under the possession of Sotheby’s, under the UCC, it is likely that the anonymous buyer could have canceled the sale."
But related: No regrets: Buyer keeping Banksy painting that self-destructed.
The bottom line: "Since the art work was damaged while under the possession of Sotheby’s, under the UCC, it is likely that the anonymous buyer could have canceled the sale."
But related: No regrets: Buyer keeping Banksy painting that self-destructed.
Friday, October 12, 2018
"In two cases testing copyright law in social media, the artist Richard Prince is asking a federal court in Manhattan to rule that two of his Instagram-based works constitute fair use of photographs taken by others."
Laura Gilbert has the story in The Art Newspaper:
"Last year a US District Court judge rejected Prince’s motion to dismiss Graham’s case. ... This time around, in summary judgment motions filed on 5 and 9 October, Prince argues that he had to use as much of the photograph as appeared in the Instagram post to accomplish his purpose. In a 15-page statement calling his iPhone a paintbrush, Prince explains that he wanted 'to reimagine traditional portraiture and bring to a canvas and art gallery a physical representation of the virtual world of social media'. Had he altered the photographs, he says, that intent would go unseen."
Law360's Bill Donahue points to "this paragraph [from the motion papers] -- which makes tons of sense in the specific context of a fair use argument but is also, like, brutal shade":
"Not only does Prince’s work have a transformative message, meaning and purpose, but it also has in no way usurped Graham’s market – to the contrary, Graham sold his Photograph for the greatest amount after Prince’s use. This is not a case of forgery, piracy, counterfeit or plagiarism; nor is it copyright infringement. Indeed, the purchaser of the Prince painting knew the included image was not taken by Prince and has unequivocally stated that he would never have purchased the Photograph; rather, he wanted the content, context, commentary, and technique of the Prince work. Indeed, it would make no sense for someone to pay for a Richard Prince if they wanted the Graham Photograph, which they could easily purchase for a fraction of the price of a New Portrait."
"Last year a US District Court judge rejected Prince’s motion to dismiss Graham’s case. ... This time around, in summary judgment motions filed on 5 and 9 October, Prince argues that he had to use as much of the photograph as appeared in the Instagram post to accomplish his purpose. In a 15-page statement calling his iPhone a paintbrush, Prince explains that he wanted 'to reimagine traditional portraiture and bring to a canvas and art gallery a physical representation of the virtual world of social media'. Had he altered the photographs, he says, that intent would go unseen."
Law360's Bill Donahue points to "this paragraph [from the motion papers] -- which makes tons of sense in the specific context of a fair use argument but is also, like, brutal shade":
"Not only does Prince’s work have a transformative message, meaning and purpose, but it also has in no way usurped Graham’s market – to the contrary, Graham sold his Photograph for the greatest amount after Prince’s use. This is not a case of forgery, piracy, counterfeit or plagiarism; nor is it copyright infringement. Indeed, the purchaser of the Prince painting knew the included image was not taken by Prince and has unequivocally stated that he would never have purchased the Photograph; rather, he wanted the content, context, commentary, and technique of the Prince work. Indeed, it would make no sense for someone to pay for a Richard Prince if they wanted the Graham Photograph, which they could easily purchase for a fraction of the price of a New Portrait."
Thursday, October 04, 2018
Wednesday, October 03, 2018
Tuesday, October 02, 2018
Preliminary injunction granted in MoMA trademark suit (UPDATED)
Against a tea place called MoMaCha. Story here. Background here.
UPDATE: More from the New York Times.
UPDATE: More from the New York Times.
Monday, October 01, 2018
"Amazon Sued Over Use of Artist’s Work in ‘Suspiria’"
The artist is Ana Mendieta; Suspiria is the new movie by Luca Guadagnino (who directed last year's Call Me By Your Name), a remake of a 1977 Dario Argento horror film. Variety story here, which includes the following:
"The suit alleges that the 'Suspiria' trailer, which was released in June, contained two images that were derived from Mendieta’s work. One image showed a woman’s hands bound with rope across a white table, which was alleged to be derived from 'Rape Scene.' The second showed a silhouette of a body on a sheet, which the estate claimed was based on 'Silueta Series.'
"The estate sent a cease and desist letter to Amazon in July. In late August, Amazon dropped a second trailer that did not contain the images. The studio screened the film for the estate’s agent in early September, after it premiered at the Venice Film Festival.
"According to the suit, the two images had been removed from the film, but the agent flagged eight others that also bore similarities to Mendieta’s work."
Brian Frye tweets: "The lawyers for the estate will be so sad when they learn that copyright doesn’t protect style or ideas. Will this even survive a motion to dismiss? I hope not."
But Lee Thomas-Mason posts some side-by-side comparisons and it's not at all obvious to me that these (especially the first two, which it seems have been removed from the film?) fall on the idea side of the idea-expression divide.
I predict a settlement.
"The suit alleges that the 'Suspiria' trailer, which was released in June, contained two images that were derived from Mendieta’s work. One image showed a woman’s hands bound with rope across a white table, which was alleged to be derived from 'Rape Scene.' The second showed a silhouette of a body on a sheet, which the estate claimed was based on 'Silueta Series.'
"The estate sent a cease and desist letter to Amazon in July. In late August, Amazon dropped a second trailer that did not contain the images. The studio screened the film for the estate’s agent in early September, after it premiered at the Venice Film Festival.
"According to the suit, the two images had been removed from the film, but the agent flagged eight others that also bore similarities to Mendieta’s work."
Brian Frye tweets: "The lawyers for the estate will be so sad when they learn that copyright doesn’t protect style or ideas. Will this even survive a motion to dismiss? I hope not."
But Lee Thomas-Mason posts some side-by-side comparisons and it's not at all obvious to me that these (especially the first two, which it seems have been removed from the film?) fall on the idea side of the idea-expression divide.
I predict a settlement.
Summary Judgment Denied in the G.M. Graffiti Lawsuit
Story (and copy of the decision) here. As mentioned here, G.M. had argued that there couldn't be infringement because the graffiti was part of an "architectural work" (namely, the parking garage it was painted on). The court rejected that argument, if anything treating it as a closer call than it actually is. Eriq Gardner calls it a "big win for graffiti artists."
"I have been introducing the ART Act since 2011 and I’m proud to join my colleagues in introducing this bipartisan, bicameral version of the legislation this congress"
The American Royalties Too Act is being reintroduced. I'm not a fan of the Act (for reasons mentioned here), but there is a version of a resale royalty that makes sense to me (for reasons hinted at, but not adequately defended, in the same post).
"Ms. Abramovic was leaving a book signing at the Palazzo Strozzi, in Florence, which is hosting Italy’s first major retrospective of her art, when a man slammed a paper portrait he had made of Ms. Abramovic over her head."
NY Times story here. Abramovic says she was stunned but unhurt and has not pressed charges.
Saturday, September 22, 2018
"One focal point of the debate has been 'BRAT,' a huge sculpture said to have been Indiana’s last monumental work, designed not as a homage to an ethereal concept like Mr. Indiana’s 'LOVE' or 'HOPE,' but to the humble bratwurst."
NYT: "Just how much control did the artist Robert Indiana have over his work during the last years of his life?"
Saturday, September 15, 2018
"The agreement states that the art and the cash gift must be returned if the Corcoran 'has not complied with the conditions.'"
A donor intent case involving a gift to the Corcoran.
"As part of the settlement, the company agreed to fund a number of Detroit art institutions and charities"
A settlement in the H&M street art lawsuit (mentioned earlier here). H&M should have read this before their ad campaign.
"Artist Plans to Sue Property Owner Who Painted Over Chicano Mural in San Jose’s East Side"
Next up on the VARA docket.
"I said, ‘Well you could destroy it, you could sell it, I can send it your other gallery.'" (UPDATED)
Artnet: Artist Hank Willis Thomas Pulls Work From a South African Art Fair After a Photographer Levels Plagiarism Charges.
UPDATE: Brian Frye tweets: "As always, it is amusing to see the tension between photo & artworld norms. Maybe someday photographers will wise up. They always come off as such rubes."
UPDATE: Brian Frye tweets: "As always, it is amusing to see the tension between photo & artworld norms. Maybe someday photographers will wise up. They always come off as such rubes."
Tuesday, September 11, 2018
Wednesday, August 29, 2018
VARA Dismissal Affirmed
The Second Circuit has affirmed the dismissal of the VARA suit over the removal of a sculpture from Trinity Church in downtown Manhattan.
In discussing the dismissal by the District Court, I said:
"The artist had the additional difficulty that he signed a contact [which said] Trinity will have the right to complete, exhibit and sell the Sculpture if it so chooses [and that the artist] understands that Trinity has not promised the public exhibition of the Sculpture, and that Trinity may loan the Sculpture to third parties as Trinity deems appropriate."
The Second Circuit noticed that too:
"Here, Tobin argues that Trinity impermissibly modified his work, in violation of VARA, when it relocated the sculpture from Trinity Church in lower Manhattan to a seminary in Connecticut. He asserts that the sculpture is site specific, and was created for its original location at Trinity Church. Thus, he argues, by moving the sculpture, Trinity has violated the integrity of the piece, However, in a written agreement signed by the parties prior to the sculpture’s installation, Tobin affirmed that Trinity 'has not promised the public exhibition of the Sculpture, and that Trinity may loan the Sculpture to third parties as Trinity deems appropriate.' Because either of these actions would require Trinity to physically move the sculpture, we conclude that Tobin waived any right he may have held under VARA to maintain the piece specifically at Trinity churchyard. Tobin 'expressly agree[d]' to this 'use[] of [his] work,' in conformance with the waiver requirements of VARA. 17 U.S.C. § 106A(e)(1). Accordingly, dismissal of Tobin’s claims premised on the modification resulting from the relocation of the piece was appropriate."
In discussing the dismissal by the District Court, I said:
"The artist had the additional difficulty that he signed a contact [which said] Trinity will have the right to complete, exhibit and sell the Sculpture if it so chooses [and that the artist] understands that Trinity has not promised the public exhibition of the Sculpture, and that Trinity may loan the Sculpture to third parties as Trinity deems appropriate."
The Second Circuit noticed that too:
"Here, Tobin argues that Trinity impermissibly modified his work, in violation of VARA, when it relocated the sculpture from Trinity Church in lower Manhattan to a seminary in Connecticut. He asserts that the sculpture is site specific, and was created for its original location at Trinity Church. Thus, he argues, by moving the sculpture, Trinity has violated the integrity of the piece, However, in a written agreement signed by the parties prior to the sculpture’s installation, Tobin affirmed that Trinity 'has not promised the public exhibition of the Sculpture, and that Trinity may loan the Sculpture to third parties as Trinity deems appropriate.' Because either of these actions would require Trinity to physically move the sculpture, we conclude that Tobin waived any right he may have held under VARA to maintain the piece specifically at Trinity churchyard. Tobin 'expressly agree[d]' to this 'use[] of [his] work,' in conformance with the waiver requirements of VARA. 17 U.S.C. § 106A(e)(1). Accordingly, dismissal of Tobin’s claims premised on the modification resulting from the relocation of the piece was appropriate."
Thursday, August 23, 2018
Thursday, August 09, 2018
"So here’s the upshot: in a resale royalties scheme, 99% of artists will likely lose, so that the top 1% can win. This reverse-Robin Hood story is not some bug in the system -- it is its main feature."
Chris Sprigman and Guy Rub make the case against resale royalties for artists:
"We collected data representing all sales at public auctions conducted by Sotheby’s and Christie’s during March and April 2018. We examined how resale royalties from those sales would have been distributed if the so-called ART Act, the last bill attempting to enact resale royalties on a national level, was in place. The results are telling.
"If the ART Act had been law, 683 transactions by Sotheby’s and Christie’s in those two months might have been subject to resale royalties payments. Those sales ... would have generated royalty payments totaling over $2.3 million. A nice sum, but for whom?
"For the rich, and, in particular, for the rich and dead. Most of the royalties (57%) would have been paid to the estates of deceased artists, typically very famous ones. That list is dominated by some of the most prominent artists of the 20th century: artists who, on top of being critical and popular favorites, were wealthy in their lifetimes and left fortunes to their heirs. ..."
"So it’s clear that top-tier artists and their heirs make out like bandits under a resale royalty scheme. It’s also clear who doesn’t: young artists. There is not a single living artist in his or her twenties in our data who receives a resale payout. Total royalties for living artists in their thirties is only $6,813, or 0.29% of all royalties. Even artists in their forties are largely shut out. The top earner under the age of 50, the 49-year-old Shahzia Sikander, would have made just $5,125. In fact, all artists under 50, together, would have made only $52,906 in those two months, which is just 2.28% of all royalties, and about one-sixth of what the Andy Warhol Foundation alone would have reaped."
It's a pretty convincing argument against the ART Act ... but I still think there's a version of a resale royalty scheme that may make sense (which one day I'll try to spell out in more detail).
"We collected data representing all sales at public auctions conducted by Sotheby’s and Christie’s during March and April 2018. We examined how resale royalties from those sales would have been distributed if the so-called ART Act, the last bill attempting to enact resale royalties on a national level, was in place. The results are telling.
"If the ART Act had been law, 683 transactions by Sotheby’s and Christie’s in those two months might have been subject to resale royalties payments. Those sales ... would have generated royalty payments totaling over $2.3 million. A nice sum, but for whom?
"For the rich, and, in particular, for the rich and dead. Most of the royalties (57%) would have been paid to the estates of deceased artists, typically very famous ones. That list is dominated by some of the most prominent artists of the 20th century: artists who, on top of being critical and popular favorites, were wealthy in their lifetimes and left fortunes to their heirs. ..."
"So it’s clear that top-tier artists and their heirs make out like bandits under a resale royalty scheme. It’s also clear who doesn’t: young artists. There is not a single living artist in his or her twenties in our data who receives a resale payout. Total royalties for living artists in their thirties is only $6,813, or 0.29% of all royalties. Even artists in their forties are largely shut out. The top earner under the age of 50, the 49-year-old Shahzia Sikander, would have made just $5,125. In fact, all artists under 50, together, would have made only $52,906 in those two months, which is just 2.28% of all royalties, and about one-sixth of what the Andy Warhol Foundation alone would have reaped."
It's a pretty convincing argument against the ART Act ... but I still think there's a version of a resale royalty scheme that may make sense (which one day I'll try to spell out in more detail).
Monday, August 06, 2018
The Times had a critical piece yesterday on donor-advised funds ...
... which are commonly used in the art world. The story is here.
Harvard's Greg Mankiw (convincingly) finds it "unconvincing":
"The headline and tone of the article suggest something nefarious is going on. But unless you think that future charitable spending is less admirable than current charitable spending, nothing of the sort is the case. ... [T]he donor of the funds cannot get the money back to finance his consumption or that of his heirs. The money has to eventually go to IRS-approved charities. Putting money into a DAF is essentially a commitment to give that part of your wealth, plus all future returns on it, to charity. As such, DAFs should be applauded."
Harvard's Greg Mankiw (convincingly) finds it "unconvincing":
"The headline and tone of the article suggest something nefarious is going on. But unless you think that future charitable spending is less admirable than current charitable spending, nothing of the sort is the case. ... [T]he donor of the funds cannot get the money back to finance his consumption or that of his heirs. The money has to eventually go to IRS-approved charities. Putting money into a DAF is essentially a commitment to give that part of your wealth, plus all future returns on it, to charity. As such, DAFs should be applauded."
Sunday, August 05, 2018
"Split decision in lawsuit over forged paintings sold by ex-Franklin Pierce professor and her son"
Story here:
"In a detailed ruling, U.S. District Court Judge Steven McAuliffe dismissed the warranty claim Hall had brought, concluding that because the case was brought four years after the purchase of the art, that was too late. ... But McAuliffe declined the bid of the Gascards to dismiss the other three charges, fraud, conspiracy to defraud and unjust enrichment. ... 'Hall, on the other hand, has pointed to sufficient facts which, if credited as true, would permit a jury to conclude by clear and convincing evidence that the Gascards knew the paintings at issue were forgeries (or, at a minimum, that they were consciously indifferent to that fact),' McAuliffe wrote. The decision means those three remaining counts are on a path to go to trial later this year."
Background here.
"In a detailed ruling, U.S. District Court Judge Steven McAuliffe dismissed the warranty claim Hall had brought, concluding that because the case was brought four years after the purchase of the art, that was too late. ... But McAuliffe declined the bid of the Gascards to dismiss the other three charges, fraud, conspiracy to defraud and unjust enrichment. ... 'Hall, on the other hand, has pointed to sufficient facts which, if credited as true, would permit a jury to conclude by clear and convincing evidence that the Gascards knew the paintings at issue were forgeries (or, at a minimum, that they were consciously indifferent to that fact),' McAuliffe wrote. The decision means those three remaining counts are on a path to go to trial later this year."
Background here.
"Adrian Ellis has offered what I think is one of the best ways to address the deaccessioning dilemma."
Museum consultant Bob Beatty has a piece up at Hyperallergic on "the deaccessioning debate in museums." As evidenced by his approving citation of the Ellis Rule, he seems to be in favor of a loosening of the "ethical" prohibitions on deaccessioning, but also seems keen to avoid the ire of the tomato throwers, so he's pretty subtle about it all.
"Decision should put decade-long legal battle between museum and heirs of art dealer Jacques Goudstikker 'to rest'"
The Norton Simon-Von Saher litigation, which I wrote about for the Journal of Art Crime all the way back in 2010, appears to finally be over.
Wednesday, July 18, 2018
"G.M. Used Graffiti in a Car Ad. Should the Artist Be Paid?"
The New York Times reports:
"Mr. Falkner’s case is set to turn on another unsettled question of copyright law. Last month, lawyers for G.M. sought to end his lawsuit by claiming in court papers that the company was allowed to use his parking garage mural because of a provision in the law that says images of 'architectural works' do not have copyright protections. In their papers, the lawyers argued that the parking garage was itself an architectural work and that Mr. Falkner’s mural was not protected under the law because it was 'incorporated into a building.'"
And in response:
"Last week, Mr. Gluck [the artist's lawyer] filed his own court papers, suggesting that the architectural exemption was put in place to protect the public from being sued for taking and posting photos of significant structures like the Washington Monument or the Space Needle in Seattle. If a parking garage — even one covered in art — could be construed as a significant structure, Mr. Gluck maintained, it would have widespread implications. 'If GM’s view prevailed,' he wrote, 'all graffiti art that exists on a building — that is, most graffiti art — would suddenly be unprotected by copyright.'"
"Mr. Falkner’s case is set to turn on another unsettled question of copyright law. Last month, lawyers for G.M. sought to end his lawsuit by claiming in court papers that the company was allowed to use his parking garage mural because of a provision in the law that says images of 'architectural works' do not have copyright protections. In their papers, the lawyers argued that the parking garage was itself an architectural work and that Mr. Falkner’s mural was not protected under the law because it was 'incorporated into a building.'"
And in response:
"Last week, Mr. Gluck [the artist's lawyer] filed his own court papers, suggesting that the architectural exemption was put in place to protect the public from being sued for taking and posting photos of significant structures like the Washington Monument or the Space Needle in Seattle. If a parking garage — even one covered in art — could be construed as a significant structure, Mr. Gluck maintained, it would have widespread implications. 'If GM’s view prevailed,' he wrote, 'all graffiti art that exists on a building — that is, most graffiti art — would suddenly be unprotected by copyright.'"
Saturday, July 14, 2018
"Monterey’s DalÃ17, which displays the 500-work private collection of the Ukrainian-born real estate developer Dimitry Piterman, features the Surrealist’s face—complete with upturned moustache—on its logo."
The Art Newspaper: Dalà foundation sues California museum for use of artist’s name and image.
Brandon Butler tweets: "This lawsuit seems crazy—if a museum full of Dali art can’t use 'Dali,' what should it be called? 'Museum of the Melting Clocks Guy—You Know, with the Weird Mustache'?"
On the other hand:
"Coblentz Patch Duffy & Bass partner Lawrence Siskind, who’s not involved in the case, said at first blush it sounds as if the foundation has a strong case. If the museum called itself 'The Museum of Surrealism' and exhibited Dali retrospectives, that probably wouldn’t break any laws. It could even create a website called DaliSucks.com and publish commentary and criticism about his artwork. But use of 'Dali' as part of the museum’s name might imply that Dali’s heirs or owners of the rights have authorized use the name, or endorsed the museum, Siskind said."
And:
"UC Hastings School of Law civil litigation professor David Levine said Piterman 'may well have a problem' by using DalÃ’s name and image to promote the museum. It’s one thing, Levine said, to display a Dalà painting on a museum wall. It’s another thing to use DalÃ’s image to promote it. To be safe, Levine said, Piterman needs a different strategy. 'If he advertises it as "Dmitry’s Museum Featuring Works of Salvador DalÃ" without using DalÃ’s likeness, that’s probably OK,' Levine said."
Brandon Butler tweets: "This lawsuit seems crazy—if a museum full of Dali art can’t use 'Dali,' what should it be called? 'Museum of the Melting Clocks Guy—You Know, with the Weird Mustache'?"
On the other hand:
"Coblentz Patch Duffy & Bass partner Lawrence Siskind, who’s not involved in the case, said at first blush it sounds as if the foundation has a strong case. If the museum called itself 'The Museum of Surrealism' and exhibited Dali retrospectives, that probably wouldn’t break any laws. It could even create a website called DaliSucks.com and publish commentary and criticism about his artwork. But use of 'Dali' as part of the museum’s name might imply that Dali’s heirs or owners of the rights have authorized use the name, or endorsed the museum, Siskind said."
And:
"UC Hastings School of Law civil litigation professor David Levine said Piterman 'may well have a problem' by using DalÃ’s name and image to promote the museum. It’s one thing, Levine said, to display a Dalà painting on a museum wall. It’s another thing to use DalÃ’s image to promote it. To be safe, Levine said, Piterman needs a different strategy. 'If he advertises it as "Dmitry’s Museum Featuring Works of Salvador DalÃ" without using DalÃ’s likeness, that’s probably OK,' Levine said."
"The Wayfair decision looks like a sales tax game-changer for many New York galleries."
Says Tom Danziger in this artnet piece on a recent Supreme Court decision involving the power of states to require out-of-state sellers to collect sales tax on objects shipped into the state -- say works of art, for example. Here's the New York Times story on the decision. More here generally, and more here as it relates specifically to the art market.
"Having determined that the face of plaintiff’s sculpture is distinct, original, and protected, we find that defendant’s use was infringing."
Here's an interesting one: the US Postal Service owes an artist $3.5 million for using what they thought was a photo of the Statue of Liberty on a stamp but which turned out to be a photo of a variation on the actual statue that lives outside a New York-themed hotel in Las Vegas. The decision is here.
Berkshire Update
At the Center for Art Law, Jennie Nadel has a good summary of where things stand.
The Berkshire Eagle says a "new era" for the museum has begun.
And, in case you were wondering, opponents of the sale are still opposed. They have not changed their minds.
The Berkshire Eagle says a "new era" for the museum has begun.
And, in case you were wondering, opponents of the sale are still opposed. They have not changed their minds.
More on the California Resale Royalty Decision
Lots of coverage over the last week. Nicholas O'Donnell has a very good, comprehensive overview of the twists and turns the case has taken. His conclusion: "Barring unexpected developments (or Supreme Court intervention and reversal), this is probably the end of the line for droit de suite in America."
The New York Times report is here: California Tried to Give Artists a Cut. But the Judges Said No.
Brian Frye says the decision is "a big deal, but should not come as a surprise to anyone."
Jori Finkel's report in The Art Newspaper points out that "the ruling could also open the door for Christie’s and Sotheby’s to hold more contemporary auctions in Los Angeles, free of both the burden of paying the 5% royalty and the pressure of navigating and litigating this issue." And she includes a glass half-full take from ARS's Ted Feder: "On the bright side, the Ninth Circuit decision recognises this federal pre-emption, which in our view argues for adoption of a national right, covering all the States."
On the glass half-empty side, echoing O'Donnell's conclusion, Daniel Grant's Observer report declares that "artist resale royalties in the United States, like Old Marley in the Dickens story, are as dead as a door-nail." I think this take may overstate things. Yes, resale royalties are currently a little deader than they were before this case, in the sense that there used to be one state that had them and now there are (and can only be) none. But it's at least possible that, on the national level, there may be slightly more momentum for resale royalty legislation after this decision than there was before. It's still pretty unlikely, but I don't think we can rule it out completely. I still think there's a version of a resale royalty law that make sense.
The New York Times report is here: California Tried to Give Artists a Cut. But the Judges Said No.
Brian Frye says the decision is "a big deal, but should not come as a surprise to anyone."
Jori Finkel's report in The Art Newspaper points out that "the ruling could also open the door for Christie’s and Sotheby’s to hold more contemporary auctions in Los Angeles, free of both the burden of paying the 5% royalty and the pressure of navigating and litigating this issue." And she includes a glass half-full take from ARS's Ted Feder: "On the bright side, the Ninth Circuit decision recognises this federal pre-emption, which in our view argues for adoption of a national right, covering all the States."
On the glass half-empty side, echoing O'Donnell's conclusion, Daniel Grant's Observer report declares that "artist resale royalties in the United States, like Old Marley in the Dickens story, are as dead as a door-nail." I think this take may overstate things. Yes, resale royalties are currently a little deader than they were before this case, in the sense that there used to be one state that had them and now there are (and can only be) none. But it's at least possible that, on the national level, there may be slightly more momentum for resale royalty legislation after this decision than there was before. It's still pretty unlikely, but I don't think we can rule it out completely. I still think there's a version of a resale royalty law that make sense.
Friday, July 06, 2018
"Our decision today means the CRRA had a short effective life."
BREAKING: Ninth Circuit rules that the California resale royalty law is preempted by the 1976 Copyright Act (so -- at most -- the plaintiffs can pursue claims from the period between the law's effective date of January 1, 1977 and the 1976 Act's effective date of January 1, 1978).
For background, start here.
For background, start here.
Tuesday, June 26, 2018
"Sir Anish Kapoor’s Clenched Fist of Copyright, the Battle Over Fair Use, and the NRA"
Sergio Muñoz Sarmiento, writing at Hyperallergic, on Anish Kapoor's lawsuit against the NRA.
Related: Mike Masnick at Techdirt:
"This is so obviously fair use that it's not even worth going through the full four factor analysis. This is less than a second in a political video showing a public sculpture in a public location. It's not key to the video. It's used as part of commentary. The nature of Kapoor's lawsuit, however, is quite obviously to stifle free speech he disagrees with."
Related: Mike Masnick at Techdirt:
"This is so obviously fair use that it's not even worth going through the full four factor analysis. This is less than a second in a political video showing a public sculpture in a public location. It's not key to the video. It's used as part of commentary. The nature of Kapoor's lawsuit, however, is quite obviously to stifle free speech he disagrees with."
Friday, June 22, 2018
"But the imperious demands of a multimillionaire who no longer wants to wait cannot trump the plain and unambiguous language of the Purchase Agreements, which do not require Mr. Koons to create the Works by any specified deadline."
Artnews: Gagosian Gallery Files Motion to Dismiss Steven Tananbaum’s Jeff Koons ‘Non-Delivery’ Lawsuit.
This is the one with the ouroboros.
This is the one with the ouroboros.
"Anish Kapoor Sues NRA for Copyright Infringement of Bean Sculpture"
Artnews story here. They use it in an ad.
Sergio Muñoz Sarmiento thinks Kapoor is trying to use copyright to censor speech.
IP professor Christine Farley tweets: "The Bean appears for just 1 second, but it takes up almost the entire frame. De minimis?" (For a recent de minimis case, see here.)
And some interesting Twitter discussion among some law professors here (though I really don't get the doubts about copyrightability here). Brian Frye says "surely the use of public art as a backdrop is - or should be! - a fair use." Michael Risch wonders why we should think "people should be free to commercialize photos of sculptures when they can't commercialize a photo of a painting. Other than the fact that you have to pay to see one of them in a museum, it's unclear to me why these are different categories of art." Several people seem to think there should be a statutory exception allowing the use of public art.
Sergio Muñoz Sarmiento thinks Kapoor is trying to use copyright to censor speech.
IP professor Christine Farley tweets: "The Bean appears for just 1 second, but it takes up almost the entire frame. De minimis?" (For a recent de minimis case, see here.)
And some interesting Twitter discussion among some law professors here (though I really don't get the doubts about copyrightability here). Brian Frye says "surely the use of public art as a backdrop is - or should be! - a fair use." Michael Risch wonders why we should think "people should be free to commercialize photos of sculptures when they can't commercialize a photo of a painting. Other than the fact that you have to pay to see one of them in a museum, it's unclear to me why these are different categories of art." Several people seem to think there should be a statutory exception allowing the use of public art.
"In such a polarised climate, should auction houses and dealers not pay their dues to the artists from whom they profit?"
In The Art Newspaper last week, Anny Shaw uses P. Diddy's recent purchase at auction of a Kerry James Marshall painting for $21 million -- "Marshall didn’t receive a cent from the sale" -- as an occasion to wonder about resale royalties for artists.
And that reminds me to thank everyone who came out to Pioneer Books Monday evening for a stimulating conversation on the subject of resale royalties (where among other things I described what I don't like about the most recent proposed legislation and defended my tentative, still-developing idea for an alternative version that would apply, without a cap, in cases where there has been a massive increase in value).
And that reminds me to thank everyone who came out to Pioneer Books Monday evening for a stimulating conversation on the subject of resale royalties (where among other things I described what I don't like about the most recent proposed legislation and defended my tentative, still-developing idea for an alternative version that would apply, without a cap, in cases where there has been a massive increase in value).
Thursday, June 14, 2018
"A New York City real estate developer who demolished the famed graffiti space 5Pointz won't get a new trial, after a federal judge Wednesday issued a scathing opinion that blasted the owner for lying in court and other 'egregious behavior.'"
Law360: No New Trial Over 5Pointz Graffiti Destruction, Judge Says:
"The ruling paves the way for Wolkoff to take the case to the Second Circuit, setting the stage for a closely watched appeal ...."
One question for that appeal will be whether statutory damages are the appropriate remedy for the kind of behavior that seemed to tick off the Judge here.
"The ruling paves the way for Wolkoff to take the case to the Second Circuit, setting the stage for a closely watched appeal ...."
One question for that appeal will be whether statutory damages are the appropriate remedy for the kind of behavior that seemed to tick off the Judge here.
Tuesday, June 12, 2018
"The court found the graffiti was 'never fully visible, let alone legible,' even when the video was paused, because it appeared on screen for less than three seconds, in the background, at an oblique angle, and in low, uneven light."
Frankfurt Kurnit's Brian Murphy on the dismissal of a recent copyright case on de minimis grounds. Full decision here.
"Shane Campbell Looks to File a $15 Million Class Action Lawsuit Against Frieze for ‘Unbearable’ Heat" (UPDATED)
Story here.
UPDATE: Sergio Muñoz Sarmiento tweets: "Guess the $10 Starbucks gift card wasn’t enough?"
UPDATE: Sergio Muñoz Sarmiento tweets: "Guess the $10 Starbucks gift card wasn’t enough?"
Friday, June 08, 2018
"I spent hours researching it, and I concluded that Arcis is a tax-free zone in search of a tax.”
A Longreads read on the new "freeport" in Harlem.
"This action arises from a greedy, malevolent, fraudulent, bad-faith and (unfortunately) successful scheme to financially devastate the Estate and, indirectly, Belinda, by destroying the value of the Estate’s most valuable asset — Jean-Michel Basquiat’s masterpiece, ‘Flesh and Spirit.'"
The next round in a dispute over a Basquiat sold at Sotheby's last month. For round one, see here.
The painting sold for $30.7 million. The claim seems to be that, but for the greedy, malevolent, fraudulent, bad-faith scheme, it would have sold for more.
The painting sold for $30.7 million. The claim seems to be that, but for the greedy, malevolent, fraudulent, bad-faith scheme, it would have sold for more.
Wednesday, June 06, 2018
Because we said so, that's why
I've been meaning to link to the AAMD's statement regarding their imposition of sanctions on the Berkshire Museum and the La Salle University Art Museum.
It's a really good instance of the phenomenon Michael Rushton talked about here: it just states their policy as if it's self-evident; there's no real effort made to explain why the policy makes sense.
All the work is done (to the extent any work is done) in the second paragraph:
"AAMD has a long-standing policy that restricts the use of funds obtained through deaccessioning to the acquisition of works of art. Selling art to support any need other than to build a museum’s collection fundamentally undermines the critically important relationships between museums, donors and the public. When museums violate the trust of their donors and the public, they diminish the opportunity and responsibility to make great works of art available to the public. This hurts the individual institution and affects the museum field as a whole."
The first sentence just asserts the policy. The second sentence is the closest we get to an explanation or defense of the policy, so let's take a close look at it. The key move, the stolen base, the sleight of hand, is the sneaky introduction of the "other than": Selling art to support any need other than to build a museum's collection fundamentally undermines (not just undermines, fundamentally undermines). But where does that particular "other than" come from? Couldn't we just as easily slip anything we want in there? Selling art to support any need other than keeping the museum from going out of business. Selling art to support any need other than providing expanded access to the museum's collection. Selling art to support any need other than attracting the most talented curators. Selling art to support any need other than changing the museum's mission. Selling art to support any need other than paying legal fees. Why does "to build a museum's collection" get to be the only "other than"? How did that happen?
Again, it's just what Rushton calls attention to: what they're really saying here, in their big, public statement on this big, public matter, is: We have a policy. To violate that policy fundamentally undermines. It's just circular; it's no explanation at all. This was the best they could do?
Nor is there any explanation of how those "critically important relationships" are (fundamentally) undermined. It's just another empty assertion.
The third sentence pivots to talking about "violating the trust" of the donors and the public -- but where did that come from? What trust? How is it violated when a museum sells art for one purpose but not for the big "other than" purpose? And what if selling art in a particular case expands the opportunity to make great works of art available to the public -- again by, for example, subsidizing or eliminating admission fees, or keeping the museum open longer hours, or keeping a financially troubled museum from closing its doors for good?
Or, what about the Ellis Rule? What if a small museum in the Berkshires sells art to a museum in Los Angeles? Has that diminished the opportunity to make great works of art available to the public, or expanded it? Won't more people get to see it in Los Angeles?
Are they even trying any more?
The paragraph concludes with: "This" -- referring, I guess, to the diminishment of the opportunity and responsibility to make great works of art available to the public -- "hurts the individual institution and affects the museum field as a whole." Yes, we mustn't do anything that could "affect" the museum field as a whole. That's always unethical. You never want to affect the museum field as a whole.
I've said before that they need better talking points. But really what they need is a better policy.
It's a really good instance of the phenomenon Michael Rushton talked about here: it just states their policy as if it's self-evident; there's no real effort made to explain why the policy makes sense.
All the work is done (to the extent any work is done) in the second paragraph:
"AAMD has a long-standing policy that restricts the use of funds obtained through deaccessioning to the acquisition of works of art. Selling art to support any need other than to build a museum’s collection fundamentally undermines the critically important relationships between museums, donors and the public. When museums violate the trust of their donors and the public, they diminish the opportunity and responsibility to make great works of art available to the public. This hurts the individual institution and affects the museum field as a whole."
The first sentence just asserts the policy. The second sentence is the closest we get to an explanation or defense of the policy, so let's take a close look at it. The key move, the stolen base, the sleight of hand, is the sneaky introduction of the "other than": Selling art to support any need other than to build a museum's collection fundamentally undermines (not just undermines, fundamentally undermines). But where does that particular "other than" come from? Couldn't we just as easily slip anything we want in there? Selling art to support any need other than keeping the museum from going out of business. Selling art to support any need other than providing expanded access to the museum's collection. Selling art to support any need other than attracting the most talented curators. Selling art to support any need other than changing the museum's mission. Selling art to support any need other than paying legal fees. Why does "to build a museum's collection" get to be the only "other than"? How did that happen?
Again, it's just what Rushton calls attention to: what they're really saying here, in their big, public statement on this big, public matter, is: We have a policy. To violate that policy fundamentally undermines. It's just circular; it's no explanation at all. This was the best they could do?
Nor is there any explanation of how those "critically important relationships" are (fundamentally) undermined. It's just another empty assertion.
The third sentence pivots to talking about "violating the trust" of the donors and the public -- but where did that come from? What trust? How is it violated when a museum sells art for one purpose but not for the big "other than" purpose? And what if selling art in a particular case expands the opportunity to make great works of art available to the public -- again by, for example, subsidizing or eliminating admission fees, or keeping the museum open longer hours, or keeping a financially troubled museum from closing its doors for good?
Or, what about the Ellis Rule? What if a small museum in the Berkshires sells art to a museum in Los Angeles? Has that diminished the opportunity to make great works of art available to the public, or expanded it? Won't more people get to see it in Los Angeles?
Are they even trying any more?
The paragraph concludes with: "This" -- referring, I guess, to the diminishment of the opportunity and responsibility to make great works of art available to the public -- "hurts the individual institution and affects the museum field as a whole." Yes, we mustn't do anything that could "affect" the museum field as a whole. That's always unethical. You never want to affect the museum field as a whole.
I've said before that they need better talking points. But really what they need is a better policy.
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