"Historic Object"

I don't have time to comment, but did want to call attention to this story in today's Philadelphia Inquirer noting that "Mayor Street has nominated Thomas Eakins' masterpiece, The Gross Clinic, for protection under the city's historic preservation ordinance .... Designation as a 'historic object,' a rarely used category of the preservation code, would prevent the painting from being altered or moved without the express approval of the Philadelphia Historical Commission."

Goya Found (UPDATED)

In New Jersey.

"The artwork appears to be unharmed, said Les Wiser, special agent in charge of the Newark FBI office. The FBI said extensive media coverage of the theft led to tips that enabled the agency to recover the painting. But the agency did not reveal when, where or how the painting was recovered, citing an ongoing investigation."

Story here.

UPDATE: The New York Times has more. Looks like David Nishimura was on the money:

"Contrary to earlier law enforcement theories that the theft was carried out by insiders, they did say it appeared that the thieves probably had no idea what kind of art-historical loot they had stumbled upon when they broke into the truck overnight in a parking lot at a Howard Johnson Inn near Bartonsville, Pa. 'This time of year, close to Christmas, they probably thought they’d found a truck filled with PlayStations and broke in and started looking for the biggest-looking box,' said Steve Siegel, an F.B.I. agent who serves as the spokesman for the bureau’s Newark office. 'Basically, it’s a target-of-opportunity typical New Jersey cargo theft. There are literally predators — for lack of a better word — who when they see a tractor-trailer or a cargo vehicle parked for any length of time start snooping around.'”

IP and the Market for African Art

American U. law professor Christine Farley posts from a conference in Namibia on "IP Used in Support of Culture Based Industries":

"The main question being addressed is whether IP (especially copyright & trademark) can help improve the markets for African art. The problem is that although the US is the major market for African art, US consumers are not willing to pay enough for the art in order to support the communities that create it. Beautiful, hand-crafted pieces made of indigenous materials using ancient techniques are sold at bargain prices that reflect tiny sums paid to the artisans that created them. We buy these pieces at places like World Market because they look nice, but we learn nothing about their origin and significance. If that's all we value why not buy even cheaper versions made in China? These artisans are hopeful that they can stop that type of competition by asserting IP rights in the art."

See also the spirited discussion with UT-Austin law professor Kate Litvak in the comments.

No Progress

A week after the theft of a Goya painting on its way to the Guggenheim comes a reminder that these kinds of cases are not so easy to crack. The Scranton Times-Tribune reports today:

"A year after the Everhart Museum was broken into — under the cover of night and a huge tent erected for the museum’s annual ball — the FBI and local police are still no closer to solving the theft of two valuable pieces of art than they were after it happened. 'It’s still an open and active investigation,' FBI spokeswoman Jerria Williams said, after conceding that leads in the case have long dried."

Full story here. Earlier posts on this here, here, and here.

An inside job?

From today's New York Times:

"Federal investigators have concluded that thieves armed with detailed shipping information were behind the removal of a Goya painting from a truck en route to the Solomon R. Guggenheim Museum from Ohio last week, law enforcement officials said Friday. The 1778 painting ... was packed inside several nested crates aboard a locked unmarked truck used by a professional art transporter. The crated painting was removed from an outer shipping container in the truck while it was parked at a Howard Johnson Inn near Bartonsville, Pa. The two drivers checked into the hotel around 11 p.m. on Nov. 7, according to the motel manager .... He said the white midsize truck was left in an unlighted parking lot adjacent to the hotel, out of sight of the hotel’s rooms and the main office. When the drivers returned to the truck at about 6:30 a.m. on Nov. 8, the locks had been broken and the painting, insured for $1 million, was gone, law enforcement officials said."

Full story here. David Nishimura says: "personally, I'm more inclined to believe it a case of sloppiness and stupidity (in abundant supply) taken advantage of by opportunistic predators (also, alas, in abundant supply)."

Eakins News (UPDATED)

Stephan Salisbury reports in the Philadelphia Inquirer today that "a coalition of cultural institutions, foundations, city officials and individuals - led by the Philadelphia Museum of Art and the Pennsylvania Academy of the Fine Arts - has been formed in an effort to keep Thomas Eakins' masterpiece, The Gross Clinic, in the city." For background, see my earlier post here.

Anne d'Harnoncourt, director of the Art Museum, is quoted as saying "I think we're rolling here. There have been some wonderful offers of support, large and small."

Full press release here.

Organizers have also established a fund for donations and a hotline for those seeking information. Donations may be made here or checks payable to the "Fund for Eakins' Masterpiece" may be sent to Fund for Eakins' Masterpiece, c/o the Philadelphia Museum of Art, Box 7646, Philadelphia, Pa. 19101-7646. The hotline number is 215-684-7762.

There will also be a rally tomorrow between 10 am and 11 am in front of Jefferson's Alumni Hall. Philadelphia artblog asks: "Has there ever before been a rally in favor of a work of art?"

UPDATE: Post-rally report (with pictures) here. More here.

Barnes Bill (UPDATED)

I mentioned last month that Pennsylvania Congressman Jim Gerlach, who at the time was in the middle of a close re-election contest, had announced plans to introduce a bill that, if enacted, would keep the Barnes Foundation from moving. Well, he won (by 3,000 votes), and he's kept his promise. Christopher Knight has a brief story in the LA Times today. The Main Line Times has a bit more. Gerlach's press release is here.

UPDATE: The New York Times has a brief piece on this today (last item, scroll down).

Fractional Gift Letters (UPDATED)

Bloomberg reports that the Whitney and other arts institutions have written letters urging Congress to reconsider the recent changes to the laws governing fractional gifts to museums.

Senator Charles Grassley, who chairs the Senate Finance Committee (until January, when he will be replaced by Democrat Max Baucus of Montana), said in a statement today that he will consider "legitimate technical points raised by the museums. But I'm not interested in unwinding the reasonable, modest reforms on fractional art donations. ... Even with the new reforms, taxpayers will still be able to make fractional art donations and claim a tax break for them. They'll just have to turn over the painting to a museum within a reasonable amount of time.''

My most recent post on the new law is here.

UPDATE: Eric Gibson, editor of the Wall Street Journal's "Leisure & Arts" page, has a piece on the new law today. He also talks about museum deaccessioning, which, he says, "used to be the tool of last resort for acquiring new art" but lately has "become the tool of first resort, with museums strip-mining their collections just to build a war chest." Lee Rosenbaum comments here.

On the Radio (UPDATED 2X)

I was on NPR's WHYY in Philadelphia this morning discussing the controversy surrounding Thomas Jefferson University's pending $68 million sale of Eakins's iconic "The Gross Clinic." You can listen to the show here.

As I mentioned on the show, one of the things I find most interesting about the controversy is that, when a similar thing happened last year with the New York Public Library's sale of Durand's "Kindred Spirits," Michael Kimmelman wrote a piece in The New York Times that got a lot of attention, and which included the following discussion of the question "what to do next time":

"[H]ere's a modest proposal. ... [W]henever art is sold by a public institution -- which, receiving tax breaks, can be expected to make some sacrifice toward the public good -- local museums should be given a reasonable period of time to match the sale price. That's it. Just a shot at preserving the public's heritage for the public."

Well, that's exactly what's happened here (local art museums and governmental institutions have 45 days to match the offer), and the university is still coming in for the same kind of criticism.

Here is the latest from the Philadelphia Inquirer (the writer, Stephan Salisbury, was also a guest on the show). Here is the paper's art critic, Edward Sozanki; he says it must be included on "any list of the top 10 American paintings." Here is an excellent piece by Carol Vogel from The New York Times last week, which also contrasts this sale to the way the "Kindred Spirits" sale was handled. The latter story also mentions that in a 2002 review of an Eakins show at the Met, Michael Kimmelman called "Gross Clinic" “hands down, the finest 19th-century American painting.”

UPDATE: One question the host asked that I didn't have a good answer for is "Why is the art market so hot right now?" Bloomberg.com happens to have an interview up with a real expert in this area -- PaceWildenstein's Arne Glimcher -- which includes that very question:

"[Bloomberg]: What's driving the demand for art?
"Glimcher: The amount of money in the marketplace and the incredible discretionary income. Money has very little meaning to certain people anymore who are making hundreds of millions dollars a year. It doesn't matter if they are paying $80 million for a Pollock. It does not alter their lifestyle at all. It's just, 'I want it and what does it take to get it?'
That's why the auction market is a little bit crazy. We'll have a show of 10 works by an artist, and they'll all sell. And then other people want them, can't get them. One comes up on the open market, and they'll pay twice what they were in the gallery."

UPDATE 2: WHYY has started a blog, called The Sixth Square, devoted exclusively to the pending sale. Lots more at their dedicated Eakins page.

Grosz MoMA Dispute (UPDATED)

Robin Pogrebin has an interesting story in today's New York Times about an ownership dispute between George Grosz's estate and MoMA over two Grosz paintings in the museum's collection. “As these Grosz works would not have been lost if [German Jewish art dealer Alfred] Flechtheim and Grosz had not had to flee Germany in order to save their lives, the George Grosz Estate claims restitution,” the estate's representative wrote in a 2003 letter to the museum. Earlier this year, as negotiations dragged on, the museum asked Nicholas Katzenbach, a former attorney general and undersecretary of state in the Johnson administration, to investigate the claim. He recommended that it be rejected:

"Mr. Katzenbach noted that when Grosz saw [one of the two paintings] at the museum [in the 1950s], he did not ask that it be returned or that he be compensated. Had he done so, the report added, 'not only would the museum have had the opportunity to ascertain the facts when they were still reasonably fresh and knowable, but it would have had the opportunity to resolve the matter then and there at relatively little cost to it.'"

The estate says it will decide by the end of the month whether to file a lawsuit.

You can see the two works here and here.

The story adds: "This is not the first time Grosz works have been the subject of controversy. The Grosz estate filed a lawsuit in 1995 against the Manhattan art dealer Serge Sabarsky, arguing that Mr. Sabarsky had deprived the estate of appropriate compensation for the sale of hundreds of Grosz works he had acquired. The lawsuit was settled last summer." I discussed that earlier lawsuit here.

UPDATE: Derek Fincham weighs in here.

Who the #$&%

The reviews are in for the documentary "Who the #$&% is Jackson Pollock?," mentioned earlier here. Stephen Holden in The New York Times calls it "entertaining." Art critic Daniel Kunitz, writing in The New York Sun, was less amused: "Far from being a documentary, the film is rather an exercise in deception, a vehicle greased by antiintellectualism."

Renoir Verdict

The verdict is in in that Renoir copyright infringement lawsuit I mentioned a few weeks ago. The Arizona Republic has the story here. Damages were awarded against the gallery in the amount of $5,000 for each of the 10 infringed sculptures, for a total of $50,000. Damages against Jean-Emmanuel Renoir (Renoir's great-grandson) were set at $7,500 per infringement, for a total of $75,000. The story adds that "in a related action, the court ordered the [plaintiff] to pay Jean-Emmanuel $120,000 for false advertising of an exhibit that took place in 2005," so it seems the total net to the plaintiff may have been just $5,000. In any event, the defendants seem happy: "'The plaintiff had asked the jury to award them a total of $1.5 million dollars, and the jury just awarded them $50,000. We see that as a victory,' said Phil Flemming, the attorney for [defendant gallery] Rima Fine Art." Expect appeals.

Stolen Goya

The New York Sun has a front page story this morning on a Goya painting stolen on its way to the Guggenheim in New York last week:

"The painting, 'Children With a Cart' (1778), disappeared as it was being transported through Scranton, Pa., from the Toledo Museum of Art by a professional art transport company, museum officials said. It was scheduled to hang in the 'Spanish Painting From El Greco to Picasso: Time, Truth, and History' exhibition at the Solomon R. Guggenheim museum starting November 17. The painting was insured for $1 million, and the insurance company has put up a $50,000 reward for information leading to the recovery of the painting. ... A spokeswoman for the [FBI] said the details of how the painting was stolen, and when, wouldn't be released until later this week."

Derek Fincham at the Illicit Cultural Property Blog asks:

"Why was this work stolen? Surely, the market for the work is quite small, as nobody will be able to claim good faith in buying or selling the work. The thieves may be attempting to ransom the work back to the museum. Criminal penalties are far lower for kidnapping a work of art than they would be for, say, kidnapping a person. The other possibility is that a wealthy collector may have requested it stolen for her own private collection."

The New York Times story is here. Here is an image of the painting.

Roll Tide

Adam Liptak had a front page story in yesterday's New York Times about a trademark lawsuit brought by the University of Alabama against artist Daniel Moore, who does paintings of Alabama football scenes which sell for as much as $65,000. The university is seeking to prevent him from, among other things, using its “famous crimson and white color scheme.”

The story does a nice job of laying out the relevant caselaw:

"At one end of the legal spectrum, a federal judge in Louisiana had no difficulty in July in enjoining a company that sold shirts bearing the school colors and initials of four football powerhouses. At the other, the federal appeals court in Cincinnati in 2003 rejected an effort by the golfer Tiger Woods to stop an artist named Rick Rush from using Mr. Woods’s image in a painting commemorating his victory at the 1997 Masters in Augusta, Ga. ... In the middle of the spectrum is a 2001 decision of the California Supreme Court. It expressed great solicitude for the rights of artists under the First Amendment. But it ruled against an artist who had created a simple charcoal drawing of the Three Stooges and sold it on T-shirts."

The Tiger Woods decision is here. The Three Stooges decision is here. You can see examples of Moore's work here and you can listen to him being interviewed about the case on NPR here. Alabama dropped to 6-5 on the season with a 28-14 loss to LSU on Saturday.

Clemson University economics professor Skip Sauer says "attempting to convert this painter's contribution into a revenue stream is a churlish (he can't use 'the famous crimson and white color scheme'???) and short-sighted move by the university's lawyers, regardless of where the case sits on the edge of trademark law."

I make Moore a two-touchdown favorite to win.

Jagshemesh

I've been waiting for the opportunity to work Borat into this blog, and here it is:

"Two college students featured in the hit film 'Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan' are not laughing about their screen appearance, in which they make racist and misogynistic comments to Borat, the boorish fictional Kazakh journalist played by Sacha Baron Cohen. A lawsuit filed on their behalf in Los Angeles Superior Court on Thursday states that the young men were plied with liquor by the production crew before their scene and thus 'engaged in behavior that they otherwise would not have engaged in,' The Associated Press reported. The students — who in their suit described Mr. Baron Cohen as 'a prankster' — also say they were told they were participating in a documentary that would be shown only outside the United States. The plaintiffs were not named but were identified in the film as fraternity members at a South Carolina university, and they appeared drunk as they made insulting comments about women and minorities. The suit seeks an injunction to stop the studio from displaying their likenesses, along with unspecified monetary damages."

High five! The complaint is here. Borat's release form is here. Law prof Gordon Smith wondered about exactly this possibility a few days ago: "One obvious problem with the release jumps off the page: One America Productions is fictional! ... The release has a merger clause, but I am wondering about a fraud claim." So did Nate Oman (scroll down to comments): "It seems that there is at least the possibility of fraud, as he obtained their consent by lying to them. ... [T]he set up does strike me as fundamentally deceptive, especially in light of the legal claims that the parties are signing away in the contract, which was presented to them under false pretenses." Another law professor, Miriam Cherry, responding to Oman in comments, doesn't think there's much to the suit: "What's the plaintiff's claim? You taped me saying stupid things and making racist comments? These folks knew they were being filmed, and they signed releases. ... They knew that they were being interviewed and that it would be public (i.e. broadcast)."

Jeremy Telman at the ContractsProf Blog says "[s]ome have suggested that the complaint might be yet another prank by the irrepressible Mr. Cohen. But if that were so, why wasn't the case styled I.P. Freely & I. Tappa Keg v. Borat?" Very nice, Profess Telmer!

Did he or didn't he? (UPDATED)

Last week the New York Times reported that David Geffen had sold a Jackson Pollock painting to David Martinez for a record $140 million. Kate Taylor reports in today's New York Sun that Martinez says it isn't true. Earlier this week, he told Josh Baer, of the Baer Faxt: "I did not buy the Jackson Pollock painting." Now his lawyers (Shearman and Sterling) have issued a statement that "contrary to recent articles in the press identifying him as the buyer of a painting by Jackson Pollock, ... neither Mr. Martinez nor any related party of Mr. Martinez owns the painting or has any right to acquire the painting from David Geffen or any other party who has acquired it or may acquire it in the future."

UPDATE: The Times weighs in (third item) on this this morning and says the episode reinforces "the art world’s reputation for cloak-and-dagger secrecy."

All The Art News That's Fit to Print

Lots of art law in today's New York Times:

• Its story on the Picasso withdrawn from last night's auction at Christie's.
• Carol Vogel's report on that auction (the biggest in history, totaling $491 million). In addition to what she calls "the stars of the evening" -- the four Klimts which were recently returned after arbitration to the Bloch-Bauer heirs (along with the Portrait of Adele that sold for $135 million earlier this year to the Neue Galerie) -- the sale also included Ernst Ludwig Kirchner’s “Street Scene, Berlin,” which "found its way to Christie’s only three months after the German government returned it to the heirs of Alfred and Thekla Hess, Jewish collectors in Erfurt, Germany" and which sold for $38 million, also to the Neue Galerie.
• The latest on the underpayment of capital gains taxes on the Childe Hassam painting that was at the center of the recently settled Brooke Astor guardianship case.
• A story on retired truck driver Teri Horton, the subject of the upcoming documentary "Who the #$&% Is Jackson Pollock?," mentioned earlier here. There's a good image of the painting she bought for $5 in a thrift shop in the early 1990s with the Times story.
• The latest on Italy and the Getty.
• A report on "an on-and-off restitution battle lasting six decades" which ended with Austria agreeing yesterday to return Munch's “Summer Night on the Beach” to Marina Mahler, the granddaughter of the composer Gustav Mahler and his wife, who originally owned it.

Christie's Picasso Sale Can (But Won't) Proceed (UPDATED 2X)

The New York Times this morning reports that Southern District Judge Jed Rakoff refused yesterday to block Christie’s from auctioning a Picasso painting that a German banker’s heir says was sold under duress in Nazi Germany. The suit was dismissed on jurisdictional grounds, with the judge saying that the plaintiff could re-file the case in State Court, which his lawyer said he plans to do today. Christie's says the sale will go forward anyway. [N.B.: The picture has been withdrawn from sale. See second update below.]

The Times story includes a great quote from Judge Rakoff:

"I know that no one in the art world is just interested in money or in buying and selling paintings for profit. They’re guided by their belief in truth and beauty. But nevertheless, one might suspect that this is just a fight about money."

Christie’s has given a pre-sale estimate of $40 million to $60 million to the painting, variously called “The Absinthe Drinker” or “Portrait of Angel Fernández de Soto,” which can be seen here. Daniel Freedman at his New York Sun blog asks, "Will the painting be sold for less than its estimated value? Anyone who buys it must calculate the possibility of having a judge rule that it must be returned." Or at least must factor in the legal costs of defending against the claim.

The New York Law Journal [$] has more.

UPDATE: The Art Newspaper is reporting that Christie's "look[s] set to withdraw the painting from auction."

UPDATE 2X: The painting has been withdrawn from the sale:

"'Despite the favorable ruling of the federal court dismissing their claims there, we have been informed by the litigant's attorneys that they intend to file another suit in state court,' said the statement [by Marc Porter of Christie's]. 'A cloud of doubt has been recklessly placed on the `Portrait de Angel de Soto' by the litigant and his attorneys on the very eve of this long-scheduled and highly publicized sale,' said the statement by [Porter]. He said Christie's reserved the right to seek damages for the harm 'caused this picture, the charity that rightfully owns it and Christie's.'"

Lee Rosenbaum says it's "the prudent, if painful, thing." She also reports that the plaintiff "had sought to reach a monetary settlement of the case with [the seller]," but the seller's lawyer says his client "flatly refused" to enter into such discussions.

Derek Fincham of the Illicit Cultural Property Blog doesn't think much of the underlying claim:

"The claims seem tenuous to me at first blush. The plaintiff, Mr. Schoeps, is the heir of Paul von Mendelssohn-Barthold, a wealthy Berlin banker and art collector. He was forced to sell all his paintings as a result of Nazi persecution. The Nazi's didn't actually take the painting, but they seized his assets so that he had no choice but to sell the work. ... I'll try to get my hands on the dismissal and look at the substance of the claims. To me, though, it seems like the claimant will have a very difficult time winning the case."

Certainly, the plaintiff's 70-year delay in pressing his claim is going to be difficult to overcome.

More on the Koons Victory

Law professor Christine Farley has a take similar to mine on Jeff Koons's recent win in the Second Circuit: "As I read the opinion," she says, "I kept wondering why earlier Koons courts could not have taken the same approach."

What was different this time? According to Farley:

"1) Here the plaintiff's photograph is an advertisement. While this should make no difference and while other successful plaintiffs have certainly made commercial use of their copyrighted works, I suggest this difference matters to the court. ... 2) The court 'gets' Koons' work. In the 1st Koons case, Judge Haight's lack of esteem for the artist pervades the opinion. (For instance, he remarks how Koons' 1st career was as a commodities trader & how he hires other artists to make his work.) ... Here, the 2d Circuit paints a different portrait of the artist and weaves his testimony into a coherent story of how fair use law enables just this kind of creativity by granting to artists access to 'raw materials' such as Blanch's photography."

The second point is an excellent one, but I think she may be mistaken about the first. The Second Circuit's opinion says the photograph was published by Allure magazine "as part of a six-page feature on metallic cosmetics entitled 'Gilt Trip'" (my emphasis). Koons did testify that certain features of the photograph "represented for me a particular type of woman frequently presented in advertising," but, unless I'm mistaken, this photo itself was not strictly speaking an advertisement.

Hula-baloo

An interesting copyright dispute going on in Hawaii. Artist Kim Taylor Reece has sued a local gallery (but apparently not the artist who created the work at issue) over a stained-glass artwork that he claims infringes one of his photographs. You can see both the glass piece and the photograph at this link to a Honolulu Star Bulletin story on the dispute.

Just from looking at the pictures, it does appear that the main similarity between the two works is the model's pose, but, as a member of a Hawaiian cultural group that is supporting the glass artist correctly says, "these are movements that we've done for 2,000 years that have been passed down from generation to generation. He cannot own this position. What he owns is his photograph of that particular model."

The photographer counters that "I'm not saying I own the pose. What I'm saying is that she copied my image" -- and argues that

"both dancers have their left arms in the same position, with the left hand on the same place of the face. Both have their right arms pointing up and with kupee (bracelets) of identical thickness, position and makeup on both. Both images are shown at the same angle, with the viewer looking up, with the dancers in the same posture. In both, the dancer's legs are together. The windblown hair on the dancers is very similar."

The natural question is how much of that flows from the pose, which both sides agree cannot be protected. Wouldn't the fact that "both have their right arms pointing up" be a function of the pose? Similarly the fact that "the dancer's legs are together"? My guess (again, based on this one newspaper article) is that, once you strip away all the features that are really part of the pose (and perhaps some other elements -- like the "kupees" -- that one would expect to see on a typical dancer striking that pose), there isn't much left in this case.