"In short, decommissioned holdings will be stripped of the status of art, removed from the permanent collection, never made, and kept indefinitely from public view."

Peter Karol: Why Did the Guggenheim Decommission a Donald Judd?

"Inevitably, the AAMD’s response to its member community’s urgent needs will be simultaneously criticized as opening the floodgates to sell off priceless treasures meant to benefit the public ..."

". . . and as doing too little to enable museums to stay afloat during the most significant financial crisis faced by the arts and culture sector—and perhaps the world—during our lifetimes."

Megan Noh on the recent changes to the AAMD's stance on deaccessioning, which she says "are far from a panacea to the museum communities’ current woes: these special dispensations are narrow, subject to pre-conditions and external legal requirements, and must be implemented in keeping with broader ethical and policy considerations."

"What Do You Do With a Stolen van Gogh?"

An art thief explains.

"Now, the insurance company that reimbursed Christie’s after the auction house paid Wynn is suing the contractor it blames for the costly accident that gashed a hole in the masterpiece."

artnet news: A Paint Roller Tore a $20 Million Hole in a Picasso Painting Headed to Christie’s. Now, the Insurance Company Is Suing the Contractor to Pay for It.

"Gallery Sues Landlord, Claiming Covid-19 Shutdown Voids Lease" (UPDATED)

Story here. The gallery is Adam Lindemann's Venus Over Manhattan. The landlord is collector Aby Rosen.

Related.

UPDATE: Also related. And also relevant.

Ninth Circuit Reinstates Authentication/Defamation Lawsuit

I first posted about this case back in 2017 under the headline "Here's what can happen when you say a work is fake."

The district court dismissed the case in 2018.

Now the Ninth Circuit has reversed. You can read the decision here.

The main grounds for reversal had to do with the issue whether the defendant had to have known the specific identity of the plaintiff at the time of the allegedly defamatory statements (answer: it did not), but the Court also threw in the following:

1.  Rejection of the district court’s conclusion that a jury could not conclude that certain of the statements at issue -- which remember were typical authenticity statements -- implied “an assertion of objective fact under the circumstances." In other words, a statement that a work is inauthentic can be considered an assertion of fact for purposes of a defamation claim.

2.  Rejection of the argument "that an assertion that a painting is a fake is categorically not a communication that may be defamatory of a seller who has sold—and warranted—it as authentic." In other words, a statement that a work is inauthentic can, depending on the circumstances, form the basis of a claim that the seller has been defamed.

3.  Holding that, whether or not the authentication claims "might be understood as an opinion," a jury "could easily find otherwise given the language used." In other words, a statement that a work is inauthentic is not necessarily opinion (and therefore can in theory form the basis of a defamation claim).

So once again: here's what can happen when you say a work is fake. As a general rule, it's still a good idea to keep quiet.

"Selling to Survive"

Saturday's CBS This Morning had a segment on the changes to the AAMD deaccessioning guidelines.

It's about four minutes long and worth watching in its entirety.

Couple things worth mentioning.

There's no mention of the public trust. The new rationale for the general rule, offered by AAMD president Brent Benjamin, is that "the idea is that you don’t benefit today’s visitors at the expense of tomorrow’s, and you don’t benefit tomorrow’s visitors at the expense of today." But it should be obvious that that doesn't really make any sense if you think about it. First of all, almost every dollar a museum spends today, on programming, on engaging with today's visitors, and so on, is in some sense benefiting today's visitors at the expense of tomorrow's. You could always just put that money in the bank and save it for the future, to benefit tomorrow's visitors. There's no way museums can sensibly do this sort of intergenerational calculation for every decision they make.

More to the point, how in the world does it benefit today's visitors or tomorrow's visitors if a museum is forced to close its doors? Doesn't Benjamin's principle argue in favor of selling whenever a museum faces a financial crisis (i.e. not just in a pandemic)?

Maybe they should have stuck with the public trust.

I also really liked Baltimore Museum of Art director (and aggressive deaccessioner) Christopher Bedford's statement of what should really matter to museums: "Serving our publics. Being vital, being relevant, keeping our doors open."

I think that's exactly right, and not just till April 10, 2022.

Inigo Update

Saudi Arabia joins the fray.

"Why the AAMD's move on deaccessioning matters so much"

Mark Gold and Stefanie Jandl explain.

Bottom line: "Going forward, it will be extremely hard for the AAMD–or anyone else–to pass judgment on a museum’s decision in the face of any existential threat."

That's correct.

The logic of the AAMD's current position seems to be that (non-acquisition related) deaccessioning is okay if the entire sector is experiencing serious financial strain, but not okay if any individual museum is experiencing serious financial strain. I just don't see how that makes sense.

"When it’s a matter of survival, let museums sell art"

Says the Boston Globe editorial board.

Remember, prior to about a month ago that statement -- when it's a matter of survival, let museums sell art -- would have been considered repulsive, beyond the pale, self-evidently unethical.

A Museum Director Responds To Those Who Have Suggested The Museum Should Dip Into The Endowment

Sort of.

"What Legal Rights Do Artists and Galleries Have During a Pandemic?"

Helpful overview here.

"New Hampshire mother and son in art fraud case want $250 million"

What's interesting about that is that the mother and son lost the art fraud case. Collector Andy Hall won a $465,000 judgment against them in 2018.

Now, "[i]n a lawsuit the mother and son filed, the pair allege that media outlets like The Keene Sentinel, New Hampshire Public Radio, The Concord Monitor, and the Monadnock Ledger Transcript, defamed them by reporting on the case incorrectly."

"Creditors Are Chasing Bankrupt Auction House Paddle8’s Former CEO for Allegedly Mishandling Funds to the Tune of $1 Million"

Eileen Kinsella has the story here. Background here.

Is this repulsive?

Architectural Digest: "French news outlet Le Figaro reports that the Mobilier National, the country’s national furniture collection, will auction off an estimated 100 pieces of furniture and objets d’art to raise funds for the Foundation for Paris Hospitals and French Hospitals."

Does that feel repulsive to you? It doesn't feel repulsive to me.

"Social Media Influencers Beware – Street Art Is Protected by Copyright"

A warning from DLA Piper's Michael Garfinkel.

Clocks and other things that need cleaning

The latest weekly roundup from Sergio Muñoz Sarmiento includes a mention of my long-ago dust-up with now Pulitzer Prize winner Christopher Knight and also covers the cut up Damien Hirst print and Sotheby's struggles, among other things.

"Brian Frye on Selling Art"

On Andrew Jennings's Business Scholarship Podcast.

Related: Against Deaccessioning Rules.

An Update on the Fairchild Botanical Gardens Infringement Lawsuit

From Amelia Brankov here. Background here. Sounds like the Garden is taking a very aggressive, very artist-unfriendly position:

"Last month, Fairchild moved to dismiss the artist’s lawsuit.  By its motion, Fairchild claims that it cannot be liable for copyright infringement because Munro’s artworks are not copyrightable.  Fairchild argues that Munro claims copyright protection in 'fiber-optic light products' which encompass his sculptural works, but those light fixtures are mere useful articles containing no conceptually separable artistic design features and are thus not subject to copyright protection."

"One thing on which the creditors all seem to agree is that the current assets of Paddle 8 will be insufficient to cover its debts by a considerable margin."

More on the Paddle8 bankruptcy from Nicholas O'Donnell, including how the New York consignment statute may or may not come into play.

"Should We Be Worried About Sotheby’s Ability to Meet Its Obligations?"

Asks the Art Market Monitor.

"Tech Entrepreneur Sean Parker Ensnared in Controversy Over $6 M. Peter Paul Rubens Painting"

ARTnews story here. Seems like a strange one -- the consignor claiming to have withdrawn the work even though the auction went ahead.

"In other words, now that the wolf is at *their* door, Benjamin and his colleagues approve of deaccessioning as a survival strategy. When it was merely the Berkshire Museum that was threatened, they treated it as a cultural crime. The stink of hypocrisy is enough to make you gag."

The Boston Globe's Jeff Jacoby. He says the Berkshire Museum deserves an apology.

"Race, Loyalty and Transparency in an Artist’s Lawsuit"

The New York Times on Howardena Pindell's lawsuit against George N'Namdi, mentioned earlier here.

"A Hardware Store Owner's Foray Into Fine-Art Authentication"

A documentary short at The New Yorker.

"At the time of writing, Philbrick’s current whereabouts remain unknown. Estimates for the total damage of his scheme range wildly, from $70m to $250m."

GQ: In search of Inigo Philbrick, the disappearing art dealer.

Also reportedly searching: the DOJ.

"Avrich’s greatest feat was getting Freedman to talk candidly about the faked works, which were sold to collectors as bona fide Abstract Expressionist masterpieces."

More on the new Knoedler documentary.

"Despite the widespread media attention, element of MSCHF’s venture has gone undiscussed: VARA."

The Fashion Law on the recent news that the artist collective MSCHF bought a Damien Hirst spot print and then cut it up into 88 separate spots that it's offering for sale.

Force Majeure in the Age of Covid

An overview from Thomas and Charles Danziger.

For Love or Money

With deaccessioning back in the news, this might be a good time to mention a new collection of essays, co-edited by friend of the blog Mark Gold, called For Love or Money: Confronting the State of Museum Salaries, an issue perhaps more relevant than ever. It includes an essay by Michael O'Hare, who was mentioned in Sebastian Smee's piece in the Washington Post this week. Art Law Blog readers can get a 10% discount by using the code AUTO 10%.

"This is how bad things are for museums: They now have a green light to sell off their art"

Sebastian Smee in the Washington Post.

It's a pretty levelheaded piece, as these things go, but it fails to grapple with the fact that (as his references to the MFA and the Baltimore Museum of Art show) museums have always had a green light to sell off their art. The AAMD's recent announcement did not provide a green light that wasn't there before. It only broadened the acceptable criteria for using the proceeds of sale.

"To Keep the Industry Alive, the AAMD Must Permanently Give Museums Freer Rein to Sell Work" (UPDATED)

This guy makes a very compelling case at ARTnews.

UPDATE: Brian Frye: "The jig is up, folks."

Tom Flynn: "[E]ven without the curse of coronavirus, deaccessioning was always going to be an inevitable consequence of the essentially unsustainable nature of many museum collections."

Victoria Reed: "I don't know if the AAMD stance is a turning of the tide as much as it is an acknowledgment that US museums are in really, very dire financial circumstances at the moment."

"Like many crises, it is hard to imagine the old rules sliding neatly into place afterwards."

Nicholas O'Donnell: How far can museums go to stay afloat during the current crisis?

"Does appraising art ... reduce the appraiser’s appreciation for art the way working in a pork factory might reduce a worker’s appetite for bacon?" (UPDATED)

Marginal Revolution: Corrupted by Commerce? (The answer, by the way, seems to be no: "In fact 'a majority of the assessors stated that ascribing values to art actually increased their admiration for paintings, photographs, sculptures, and other creative work.'")

UPDATE: Derek Fincham comments: "The article is well-written and entertaining, but I just don’t think you get a complete picture of the art market by only talking with appraisers. He also ignores large areas of helpful scholarship from criminologists, totally ignores the Knoedler forgery scandal, and does not acknowledge the problems presented by the antiquities trade. But if you want an entertaining read, I can recommend it."

"From Afar, a Fugitive in the Knoedler Art Fraud Gives His Defense"

"[I]n his first in-depth interview, Mr. Bergantiños Diaz, a fugitive living in Spain, has acknowledged to a documentary filmmaker that he discovered Pei-Shen Qian, the painter from Queens whose ability to mimic the work of Modernist masters fooled much of the art world."

"Against Deaccessioning Rules" (UPDATED)

Forthcoming in the Creighton Law Review, from Deaccessioning Hall of Fame Scholar-in-Residence (and conceptual law professor) Brian Frye.

UPDATE: More from Frye here:

"Deaccessioning rules also have the unfortunate consequence of occasionally causing distressed museums to go bankrupt and dissolve, despite sitting on collections of enormously valuable artwork. The deaccessioning police' argue that this is all as it should be, and that museums should go out of business, rather than doing something as 'repulsive' as selling a work of art in order to save the institution. I find their argument ... comically weak. And I am hardly alone. Most notably, Donn Zaretsky of The Art Law Blog has been lampooning it mercilessly for years. To be honest, it's a bit like shooting fish in a barrel, given that the deaccessioning police cannot seem to provide even a colorably coherent explanation of why it is repulsive to sell a work of art for the purpose of saving a museum, but totally fine to sell a work of art because the museum wants to own a different one."

"Artist Howardena Pindell Sues Former Gallery, Claiming ‘Misleading’ Information About Sales"

"By 'operating through a maze of business entities,' the lawsuit claims, G. R. N’Namdi Gallery obfuscated information about the sales of artworks over a years-long period, allegedly offering works at steep discounts and concealing other details about purchases."

So you mean it's not so repulsive after all? (UPDATED 4X)

A couple days ago I quoted Allan Schwartzman as saying ""I can’t imagine that the museum associations will not be obliged to rethink the core requirements of economic survival in relation to some of the assets that they own in their collections."

I added:

"Think of it this way. The Guggenheim (to take one example among many) just announced that it is furloughing 92 employees and reducing pay for another 85. If that could have been avoided by selling one work from its collection, would you do it? And if your answer is no, would you say an opposing view is repulsive?"

Well, now comes news that "the field’s leading professional organization has adopted temporary measures aimed at giving them greater flexibility in how they manage their finances. The Association of Art Museum Directors ... said on Thursday that, for the next two years, it will not censure or sanction museums that engage in some activities typically prohibited by its policies, including using income from restricted funds for general operating expenses."

This is a big deal and strikes me as obviously correct. (Though in typical fashion "the resolutions do not change AAMD’s actual governing standards. They merely lift the possibility of sanctions through April 10, 2022" -- so it's still technically repulsive but there will be no penalty for the repulsiveness, at least for the next two years.) It never made any sense to say there were no possible circumstances in which selling art to generate operating funds could be justified. The pandemic is a very obvious example of such a circumstance, but clearly not the only one. The right approach should always be "to weigh the actual costs and actual benefits and try to determine whether, on balance, all things considered, the [proposed] sale is a good idea."

UPDATE: Some other reactions to the news.

Deaccessioning Hall of Fame Scholar-in-Residence Brian Frye: "OMGOMGOMG. The AAMD is apparently suspending its deaccessioning policies for the next 2 years. So, selling art for capital expenses is still, repulsive, but we'll hold our nose?"

Mark Gold (who as far back as 2010 was asking: "Why not make it ethical for a museum to weigh priorities and make difficult choices without fear of condemnation and ostracism?"): "So the survival of a museum is relevant to the applicability of "ethical rules" of museum associations?  Museums with existential threats have been saying that for years.  Nice to finally have broader recognition of that, but sorry it took a pandemic. ... It's about time that the survival of museums and the support of their staffs get the priority they deserve."

Lee Rosenbaum understands the consequences of the move -- "How will AAMD’s watchdogs ever again be able to censure or sanction individual museums (as happened with the National Academy in New York and the Berkshire Museum in Pittsfield, MA) if they resort to monetizing their art in an attempt to secure their economic futures in future years, after the national emergency has passed?" -- but even she is on board: "For now, I’ll grudgingly concede that AAMD’s current action is a justifiable emergency rescue operation for the entire field, not merely an easy fix for a few poorly managed institutions."

And finally, Jonathan T.D. Neil says the changes actually don't go far enough because they only allow the use of interest (not principal) from acquisition funds: "Using interest rather than principal isn't going to cut it. Museums directors should be set free to sell works and then to use the entirety of that income to support their employees. That's a resolution that would be easy to commit to. ... Prioritizing assets (yes, they are assets) over people in extreme circumstances such as this (22m unemployed) is getting the value system wrong. If you are committed to your audiences, your publics, and to sustainability, it's the right thing to do."

UPDATE 2: Sergio Muñoz Sarmiento: "My more controversial side says that this whole deaccesioning in the time of the pandemic is really just hogwash. I mean, seriously, who cares what the AAMD thinks? At this point art institutions (museums, etc.) are so entrenched in the art stock market–which is to say, commercial viability–that the notion of a 'public good' has become nothing but academic and journalistic fodder."

UPDATE 3: Related: "This crisis has exposed the fragility of how museums do business. Very few have the cash reserves needed to continue operating."

UPDATE 4: Also related: "Still, the ability of arts organizations to weather this storm, while backstopped by state and philanthropic money, is, at best, tenuous. Once we get past the current crisis, arts organizations may need to rethink their funding models."

A documentary about the Knoedler scandal is about to be released

You can watch the trailer here.

"But in reality, the CASE Act will just help predatory law firms extract even more unjustified settlements from unsuspecting businesses and charities."

Conceptual lawprof (and Deaccessioning Hall of Fame Scholar-in-Residence) Brian Frye is not a fan of the proposed copyright small claims court: "The CASE Act will only make it cheaper and easier for copyright troll law firms to pursue meritless claims and enable them to extort settlements from blameless defendants. Trolls won’t even have to file an actual complaint in federal court, just what amounts to an administrative action before an agency appointee. That’s a mighty big stick, compared to a threatening letter."

Background here. More from Daniel Grant in the Art Newspaper here.

"I can’t imagine that the museum associations will not be obliged to rethink the core requirements of economic survival in relation to some of the assets that they own in their collections."

Speaking of deaccessioning ... the above quote is from Allan Schwartzman's latest podcast with Charlotte Burns (it's just a passing thought in a much larger conversation about what a post-Covid art world might look like that's well worth listening to in its entirety).

I think that's his way of saying the museums may need to relax their strict rules regarding "operating cost" deaccessioning. Think of it this way. The Guggenheim (to take one example among many) just announced that it is furloughing 92 employees and reducing pay for another 85. If that could have been avoided by selling one work from its collection, would you do it? And if your answer is no, would you say an opposing view is repulsive?

Tell Steven Miller Again About the Public Trust

All American Museum Collections Are For Sale, Just Make An Offer.

"Thus, the Players, who were neither requested nor agreed to limit the display or depiction of the images tattooed onto their bodies, had implied licenses to use the Tattoos as elements of their likenesses."

I've mentioned before that there have been 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). Well, one video game maker has just won a significant victory in the Southern District in one of the cases, including (but not only) on implied license grounds, which should make Christopher Sprigman and Annmarie Bridy happy. Story here. Opinion here.

Art law scams, screw-ups, etc.

Assorted art law (and related) thoughts from Sergio Muñoz Sarmiento, including on the Christie's sales tax story ("During these times when not too many Benjamins are circulating, might be a good idea to play everything smart and maybe a little 'conservative'?), Dave Steiner's piece on the Second Circuit's recent 5Pointz decision ("Steiner’s question on how the developer/defendant in this case could have rebutted the plaintiff’s argument that 5Pointz was NOT a work of recognized stature is exquisite. How would the defendant’s rebut 'recognized stature'? Let me tell you that I cannot find one, not one, person in the art industry that is willing to state that 'something' is not art. Good luck defendants."), and Kenny Schachter on his relationship with The Talented Mr. Philbrick ("You’ll probably wonder, as does yours truly, how a seasoned art dealer like Schachter got played for a million like a tourist in Times Square.").

"Christie’s to Pay Up to $16.7 Million Fine Over Tax Violations"

New York Times story here. Art Newspaper here.

"The heist comes as museums in much of Europe and the United States are closed in attempts to stem the spread of the coronavirus."

The New York Times: Early van Gogh Painting Stolen From Dutch Museum.

"On its face, this dispute centers on a technical legal question about whether a 2014 email from Mr. Fordjour to Mr. Blumenthal that outlined the terms of their arrangement constituted a strict sales contract or a different kind of deal, called a consignment agreement."

The New York Times has a story on the Derek Fordjour lawsuit. Background here.

"In short, under the Second Circuit’s test, a work is of recognized stature when a community of art experts says it is."

Very good piece by MKW's Dave Steiner on the 5Pointz decision. He finds the damages aspect of the case less interesting than I do and says "the primary significance of the case is that it establishes a test that is highly deferential to experts for when a work of visual art has achieved 'recognized stature' — and thus merits protection from destruction under [VARA]." He also offers some lessons for real estate owners, including "don't lie to the court."

Supreme Court Rules States Immune from Copyright Suits

Story here. Opinion here. Analysis here. Angry tweetstorm here.

"The Artist Behind Meow Wolf’s Beloved Fantastical Space Owl Is Suing the Company for More Than $1 Million"

Story here.

Here's some background on Meow Wolf from the New York Times Magazine last year: Can an Art Collective Become the Disney of the Experience Economy? They'd reportedly raised $158 million from investors as of last May.

"It is a classic example of an art dealer acting in bad faith to exploit an artist at the outset of his career. The law protects against that."

Derek Fordjour moves to dismiss dealer Robert Blumenthal's complaint against him. Story here. Background here.

Inigo Inigo Inigo

Some quarantine reading on the art world's biggest legal scandal at the moment:

1. The New York Times: The Talented Mr. Philbrick.

2. artnet news: What Did Inigo Philbrick Do? How One Precocious Dealer Allegedly Swindled the Art Market’s Savviest Players Out of Millions.

3. A first-person account at New York magazine by Philbrick's one-time friend Kenny Schachter. This one features the largest amount of prostitutes and drugs.

"Paddle8 Is Filing for Bankruptcy—and It Owes Tens of Thousands of Dollars to Justin Bieber, Jay Z’s Foundation, and Others"

"The filing comes one week after a nonprofit sued the auction house for allegedly misappropriating funds."

Background here.

5Pointz developer seeking Supreme Court review

Link [$] here.

Annemarie Bridy tweets: "Alleges the damages are so excessive that they violate due process. I think this one's a loser."

Background here. Bridy is probably right, but, as I say at the link, the damages issue is the most interesting part of the case.

"Artist Sues Disney, Pixar Over Unicorn-Adorned Van in 'Onward'"

Story here.

Timothy Geigner at Techdirt says: "Are those two vans similar? Of course they are! So is Disney/Pixar guilty of copyright infringement? Well...no, probably not. This again is a matter of the idea and expression dichotomy in copyright law. The purpose of that part of the law is to limit copyright protection to specific expression and not mere ideas and themes. For instance, a 1 to 1 copy of Daniher's design on Pixar's cartoon van would likely be infringing. The concept of a purple van with a unicorn on the side of it is, however, not protectable. In fact, it's nearly in trope territory."

"Blain Southern goes into administration as artists reveal debts owed by gallery"

Story here. At least one artist is suing: "Sean Scully says he has 'begun legal proceedings' against the firm, which he says owes him a substantial amount of money related to the sales of his works."

"Cuban artist Luis Manuel Otero Alcántara arrested on way to a LGBTQ+ censorship protest"

Art Newspaper story here.

"Mary Boone sued by former director for withholding wages and ‘misappropriating’ more than $10m"

James Oliver claims she sold certain works for her own account that really belonged to the gallery, where he had a 10% equity interest.

Some relevant background here.

"Based on his guilty plea, Righter faces up to 25 years in federal prison."

artnet news: A Los Angeles Man Who Forged Documents to ‘Authenticate’ Fake Works by Warhol and Basquiat Has Pleaded Guilty to Federal Fraud Charges.

Crispin Sartwell tweets: "If I were an art forger, Warhol and Basquiat would be tempting. Not sure anyone could tell the real thing from a careless fake by looking."

Paddle8 Sued for Nonpayment

Eileen Kinsella has the story here.

5Pointz Ruling Upheld (UPDATED)

The Second Circuit has upheld the $6.75 million judgment in favor of the artists in the 5Pointz lawsuit. Eileen Kinsella has the story here. (The artnet headline calls the decision "stunning," but an affirmance of a district court decision is never that stunning. Although this one may have surprised some people.) The decision is here.

The part of the decision getting the most attention -- part of what the Court calls the "crux of the parties' dispute" -- is that temporary works of art are eligible for VARA protection. That seems clearly right. The Court mentions Christo's "The Gates" for example.

I've always been more interested in the damages aspect of the case. The district court found it could not quantify the damages, so the $6.75 million was all statutory damages. The Second Circuit now has ruled that that was appropriate -- that in a case where actual damages could not be established, a nearly $7 million statutory damages award was justified. Now, it may be the facts of this case were so unique and so egregious that it won't have a wider impact -- basically what happened is that early in the litigation the artists got a TRO preventing the demolition of the site, it expired, and, while the district court was considering their application for a preliminary injunction to replace it, the developer had the work painted over, "without any genuine business need" to do so, "simply, as the district court found, an 'act of pure pique and revenge.'" But the idea that significant statutory damages can be awarded in a VARA case even where actual damages can't be proven could be a big deal.

UPDATE: Some reactions. First, Derek Fincham:

"I am always surprised when I encounter art lawyers and academics who are critical of the idea of moral rights. They will often make the argument that artists do not want or need moral rights, and developers like Wolkoff will not allow art anywhere near their buildings ever again. But this elides the reality, these condominium developments have as I understand it been built to take advantage of the newly gentrified neighborhood, and the new ‘luxury’ development will still be called 5 Pointz, and feature aerosol art. The art will happen no matter what, this ruling just gives the artists vindication for the personality of these artists that was bound up and integral in these images. Developers like Wolkoff claim that these moral rights damage their property rights; but a moral right is not an economic right. Instead it accounts for the psychological suffering which takes place when an artist’s art has been harmed in some way."

And Sergio Muñoz Sarmiento:

"Big news? I think so. And I think developers, in fact, any commissioning party commissioning an art work by an artist should be processing right about now."

"Hackers posing as a veteran London art dealer tricked a Dutch museum buying a John Constable painting into paying $3.1 million into a fraudulent bank account."

"Scamming their way into the middle of months of negotiating emails between Simon C. Dickinson Ltd. and Rijksmuseum Twenthe, the imposters persuaded the museum to transfer the funds to a Hong Kong account."

"This case is a classic example of someone who held himself out to be a dealer trying to exploit an artist at the outset of his career. Mr. Fordjour has always acted in good faith with respect to Mr. Blumenthal and fully expects to prevail in this lawsuit."

Dealer Robert Blumenthal is suing artist Derek Fordjour over a deal he claims they made in 2014 to buy 20 paintings for $20,000. Not $20,000 each -- $20,000 in total. He got 13 of them and is suing for the other seven. Eileen Kinsella has the story here.

"While this lawsuit might not be quite as egregiously bad as some of Liebowitz's other lawsuits, it's still pretty bananas."

Mike Masnick: Copyright Troll Lawsuit Over Duct Taped Banana Picture.

Gagosian-Tananbaum Suit Settled

This is the one with the ouroboros, and where the Judge had said: "Next year, Mr. Tananbaum will go buy more art from Mr. Gagosian. I’m the only one getting agita." Which, based on the joint statement issued by Gagosian and Koons ("Mr. Tananbaum is a passionate collector, and we look forward to our continuing relationship"), appears to be correct (though I can't speak to anybody's agita levels but my own). Story here.

"How the Legal System Left Artist Purvis Young’s Beneficiaries Empty-Handed"

Story here. Some background here.

Muddier

Portland Press Herald: "Evidence of deleted emails muddies fight over Robert Indiana’s estate."

Previous mud-level status reports here and here.

"The UK artist Bruce Munro, best known for his immersive, light-based installations, is suing the Florida-based Fairchild Tropical Botanical Gardens for copyright infringement."

Story, and side-by-side images, here.

"Caught smuggling Picasso on his yacht, Spanish billionaire collector gets €52m fine and 18 months in prison"

"According to Spain’s strict heritage laws, permits are required for exporting items more than 100 years old, which can be classified as 'national treasures.'"  They're serious about the public trust over there.

"According to the gallery director Karen Marks, a lawsuit about Maier’s estate has been settled, and the photographs are back on the market, with a commission from each sale going into an escrow account managed by Cook County, Ill."

A bit of art law news buried in a piece on the current Outsider Art Fair. Background here.

Shed employees move to unionize

Story here. More here: "Over the past year, a wave of employees at museums across America have pushed to unionize. Much of the action has been centered on New York, with workers at the New Museum, the Guggenheim Museum, the Brooklyn Academy of Music, and elsewhere having successfully formed unions, though the movement has also begun reaching other cities. Employees at the Frye Art Museum in Seattle unionized, and the Museum of Contemporary Art Los Angeles voluntarily recognized its workers’ efforts to form a union."

"Under the rules, they have to register with the government’s tax agency, and dealers and auctioneers must establish the identity of the 'ultimate beneficial owner' — meaning both seller and buyer — before entering into a transaction."

New anti-money laundering regulations in the UK. They went into effect Friday. NYT story here. Kenneth Mullens of Withers here. More here.

"Marciano Foundation Worker Files Suit Claiming Mass Layoffs Were Illegal"

New York Times story here. Background here.

"Court Orders Art Dealer Asher Edelman’s Company to Pay $1 Million in the Botched Sale of a Keith Haring Painting"

Story here. Decision (on summary judgment) here. After receiving an invoice, Edelman wrote to the seller, "As thirty days from your invoice will pass tomorrow, I need to cancel the transaction because of non-payment to me," but the Court points out in its decision that that's not a thing: "While Edelman's notice of cancelation hints at some legal right to do so … Edelman testified at his deposition that he understood 'there's no specific law' authorizing his cancelation. Rather, it was Edelman's understanding that '[t]radition in the industry' permitted such cancelations."

Inigo Update

Athena Art Finance has joined the fray:  A Prominent Art-Finance Company Says Embattled Dealer Inigo Philbrick Owes It $15 Million for a Loan He Never Paid Back.

Background here. "Philbrick’s whereabouts are currently unknown and his two former gallery spaces, in Miami and London, have been shuttered. His Miami attorney recently filed a motion to withdraw as counsel, writing that the dealer has 'failed to fulfill his obligations.' The UK High Court has granted requests from three separate plaintiffs to freeze Philbrick’s assets."

"UMB Bank has lost Thomas Hart Benton art, mismanaged the artist’s trusts, lawsuit says"

Story here.

The Di Rosa Deaccessioning Is Moving Forward

Charles Desmarais has an update here. Background here.

I'm not sure why, but this one has largely escaped the attention of the Deaccession Police. Maybe people are just tired of this whole debate.

"Looking back over the year, there was one salient feature that should be worrying all those who work in the art market. It is the number of lawsuits—some ongoing, others judged or under appeal—where art dealers appear to have acted fraudulently, mainly by selling works that were not theirs or selling the same work more than once."

Georgina Adam: Dodgy dealers beware: anti-fraud lawsuits are on the rise.

The Top 13 Art Law Disputes of 2019

A good list from Sergio Muñoz Sarmiento.

"The decision, if it is upheld, will have an impact on all legal actions filed by Rybolovlev around the world, as the court of appeal now 'forbids anyone to use the acts which have been declared null and void in this proceeding.'"

"The long-running criminal case between the Russian billionaire collector Dmitry Rybolovlev and the Swiss art dealer Yves Bouvier, which was filed in 2015, has been dismissed by a court of appeal in Monaco."

"I was so drunk when I wrote this paper. It was one o’clock in the morning and I was three sheets to the wind."

Deaccessioning Hall of Fame Scholar-in-Residence Brian Frye has an (intentionally) bananas argument that certificate-based conceptual art is illegal. Brian Boucher talks to him about it here.

"State Street’s lawyers, who are seeking unspecified damages, argued in court that the replicas were a trademark violation and diluted the company’s message."

I missed this right before the holiday, but an update from the New York Times on the "Fearless Girl" litigation. Background here. Pitt's Michael Madison says "it's ugly and stressful for the artist, Kristen Visbal, but it's fabulous for the IP professors. Trademark, copyright, contract, and international law all in one."

"Despite the artwork’s hefty price tag, Perrotin isn’t worried about someone stealing Comedian. There’s a spare banana on hand in the booth, and more importantly, without the artist’s certificate of authenticity, it reverts to being just a banana." (UPDATED 2X)

The magic of certificates of authenticity, Miami Basel edition.

UPDATE: This has predictably generated a ton of coverage (and banana puns). Robin Pogrebin has a story here. A "grudging" defense by Jason Farago here. One edition has been pledged to an (unnamed) museum.

UPDATE 2: Jonathan Jones: Don't make fun of the $120,000 banana – it's in on the joke.

"Who Is Inigo Philbrick?"

Meet the Man Behind One of the Biggest Potential Modern Art Scandals.

"Taking Intellectual Property into Their Own Hands"

Fantastic new law review article by Amy Adler and Jeanne Fromer.

Section I.E is particularly incisive.

The Wealth Tax and The Arts

Some thoughts from Tyler Cowen:  Tax the Wealthy and Their Charities Will Suffer.

And some criticisms from Michael Rushton here.

"The Scandal Engulfing Dealer Inigo Philbrick Widens Amid New Accusations That He Duped the Buyer of a $12 Million Basquiat"

Eileen Kinsella has the latest.  Background here.

"Mr. Cattelan said he did not expect to get the toilet back. But the piece exhibited at Blenheim was just one of three he made, so there were two more available, he said."

The case of the stolen gold toilet remains unsolved. The New York Times reports that "the police are still looking for the missing john — an artwork called 'America' by Maurizio Cattelan — but, so far, they remain empty-handed. A spokesman for the force carrying out the investigation, Thames Valley Police, declined to discuss the case, except to confirm that six people had been arrested in connection with the theft, only to be released later without charge."

"A Prominent Chinese-American Artist Is the Latest to Fall Afoul of China’s Censors"

New York Times story here.

"$300 Million Worth of Work by Anselm Kiefer and Other German Artists Has Mysteriously Gone Missing in China"

"According to several German media reports, the works belong to millionaire Maria Chen-Tu, a German collector of Taiwanese heritage, who loaned part of her large collection to the Chinese businessman Ma Yue. His German-based company, Bell Art, was liquidated earlier this year."

"'It is a triumph of truth and marks the end of a cover-up', said Jean-Jacques Neuer, lawyer for Picasso's son Claude Ruiz-Picasso."

AFP:  French court confirms sentence for Picasso's electrician over hoarded art.

Background here.

"I don't know how much clearer I can be about this: we are moving the Bull."

The Art Newspaper: Plans to move lower Manhattan’s Charging Bull sculpture raises furore.

Nicholas O'Donnell says: "If the artist owns the sculpture, he has no ability to dictate its placement on city property. He can ask for it back if he wants but that's it. If he doesn't own it (for which there [is] an anecdotal argument, having abandoned it on Wall Street), he has zero say at all."

"A fast-moving controversy at the Marciano Art Foundation in Los Angeles that involved workers trying to unionize, layoffs, and the announcement of a temporary closure has come to a dramatic conclusion: the private museum saying that it now has no plans to reopen." (UPDATED)

ARTnews:  After Layoffs and Unionization Campaign, Marciano Art Foundation Says: ‘We Have No Present Plans to Reopen.’

UPDATE: "In a charge filed on Thursday with the National Labor Relations Board, the organizers wrote that the foundation 'has illegally discriminated against its employees by laying off employees en masse and/or closing its facility.'"

"The case, which includes accusations of a fake auction guarantee and double-dealing, lifts the curtain on a segment of the market fueled by increasingly byzantine deals involving anonymous corporations, partial ownership, and fast flipping."

artnet news:  A Bombshell Lawsuit Claims That High-Flying Art Dealer Inigo Philbrick Sold a Rudolf Stingel Painting He Didn’t Own—More Than Once.

"In 2001, Meyer purchased the Rothko for $900,000 from New York dealer Susan Seidel, after another dealer, Jamie Frankfort, introduced them."

LA Times:  Longtime Universal boss Ron Meyer sues art dealer over ‘forged’ Mark Rothko painting.

"Christie’s says the family members have no proof the diamond belongs to them and that, regardless, its client, who bought it from the stepbrother, had every right to sell the stone."

NYT:  Christie’s Auctioned a $40 Million Diamond. Was It Stolen?

"The arrest came after authorities discovered what they said was a fake artwork attributed to an artist who was not named in the Der Tagesspiegel report."

ARTnews:  Noted Berlin Art Dealer Arrested After Allegedly Selling Fake Painting.

Tell me again about the public trust (Brooklyn Museum to Sell Francis Bacon Pope at Auction with $6 M. to $8 M. Estimate Edition)

Story here.

Thankfully, thankfully, this is not one of those works that, having fall under the aegis of a museum, was held in the public trust for present and future generations.  And it's not a work whose sale will cause potential donors to ask themselves "Why should I give this to you?  What guarantee do I have that you're not going to sell this tomorrow?"

Phew.  Close call.

"A $200 million art world spat between a prominent Philadelphia philanthropist and an eccentric New York art collector grew increasingly messy Thursday, as one of the men invoked the other’s ties to disgraced financier Jeffrey Epstein in an effort to discredit his rival."

Story here.  Background on the spat here.

"George Washington High School’s alumni association sues over controversial S.F. mural"

The lawsuit "challenges a vote by the school board in August to cover the New Deal era mural that spans George Washington High School’s lobby with solid panels."  The grounds?  "The group is challenging the August vote to cover it up on the grounds that the district has not conducted an environmental review required by California law."  That's creative.