"Because personal fidelity is more important than art"

Back in April, I mentioned poetry critic Helen Vendler in connection with the issue of an artist's right to destroy his own work. Vendler had been very critical of the decision to posthumously publish poems by Elizabeth Bishop. There's a profile of Vendler in today's New York Times Book Review, and she's sticking to her guns:

"'If you make people promise to burn your manuscripts' — as Kafka and (by legend) Virgil did — 'they should,' Vendler insisted. 'I think the "Aeneid" should have been burned and Kafka’s works should have been burned, because personal fidelity is more important than art,' she said in her quiet, direct manner. 'If I had asked somebody to promise to destroy something of mine and they didn’t do it I would feel it to be a grave personal betrayal. I wouldn’t care what I had left behind. It could have been the "Mona Lisa.""

More Trouble for Natsoulas Gallery

Back in October I posted about a lawsuit by artist Henry Villierme against the John Natsoulas Gallery in Davis, CA. It seemed that Villierme had consigned some paintings to the gallery that ended up being sold as work by Richard Diebenkorn. Now the daughters of the late David Park are claiming that an unsigned work attributed to their father and sold by the gallery in 1997 is not authentic. (The painting also appeared, as did the disputed Villiermes, in "San Francisco and The Second Wave," published by the Crocker Museum in 2004.) Story in the Sacramento Bee here.

Title Insurance for Art

Forbes.com has a piece, in their new "Collectors Guide," on title insurance for art. At the moment, it's available from two companies:

"Hiscox, a syndicate at Lloyd's of London, has for 20 years sold policies that cover everything from paintings to antiquities and require an annual renewal and premium payment. Hiscox prices on a case-by-case basis, with premiums in the 0.5% to 2.5% range, depending on risk. A $10 million policy on a Monet with a troubled provenance, for example, could cost $250,000 a year.

"In June Aris Title Insurance of New York launched a competing policy. ... Its policies cover only visual art and sculpture--not cultural artifacts or antiquities. But unlike Hiscox's, they charge a one-time-only premium, have no deductible and cover a work for as long as the policyholder (or an heir) owns it. If your ownership is challenged, Aris will either pay whatever it takes to successfully defend you or will refund what you paid for the piece. ... Aris reckons its one-time premium will run 5% or so of the value of the artwork, which may be higher or lower depending on risks associated with its provenance."

I previously posted about Aris, and the issue of adverse selection, here.

"Whether art is hanging in a museum or on a beer label, it is protected speech"

So says the Maine Civil Liberties Union attorney who recently filed a First Amendment lawsuit against the state’s Bureau of Liquor Enforcement over its rejection of three beer labels, including one for “Santa’s Butt Winter Porter” that depicts Mr. Clause from behind, drinking a beer, his ample rear end resting on a wooden barrel. CourtTV.com has the story, including a picture of the offending label. The New York Times had a brief story over the weekend.

Law professor Heidi Kitrosser uses the case as a jumping off point to consider the appropriate level of protection for commercial speech.

Another Philadelphia Art Controversy

This one involves the public school system. Seems that, over the years, a number of schools had acquired some quite valuable artworks, including an Eakins found in a boiler room. Three years ago the Philadelphia School District gathered up about 1,200 artworks from more than 260 schools. One appraisal put the value of the collection at $30 million. The works have all been in storage since 2003, "but now that the School Reform Commission is struggling to resolve a $73.3 million budget deficit, art experts, along with members of various school communities, are worried that district officials could be tempted to sell the artworks." Full story in the Philadelphia Daily News here. Earlier story, from 2003, in the Washington Post here.

Robert Volpe

The New York Times has an obituary this morning of Robert Volpe, who functioned as "the New York City Police Department’s one-man art-theft squad" in the 1970s. "Before Mr. Volpe was unleashed in 1971 as the city’s first and only art detective, art crimes were handled by the burglary division and other units. After his retirement in 1983, regular details took them up again." He was also the father of Justin Volpe, who was convicted in the Abner Louima case.

"In a move which could transform art publishing ..."

... the Victoria and Albert Museum in London will no longer charge reproduction fees for scholarly books and magazines. The new scheme will take effect early next year. The Art Newspaper has the story here. It says "the V&A is believed to be the first museum anywhere in the world which is to offer images free of copyright and administrative charges."

This also provides me with a good opportunity to recommend Susan Bielstein's terrific Permissions, A Survival Guide: Blunt Talk about Art as Intellectual Property.

Latest on the Matter Matter

The New York Times had an update over the weekend on the so-called "Matter Pollocks":

"In an article published this week in the prestigious science journal Nature, two physicists contend that a method intended to identify complex geometric patterns in the seemingly chaotic drip paintings of Jackson Pollock is flawed and may be useless in the increasingly convoluted world of authenticating Pollock’s work."

The full story (including a color photo of Matter and three of the works) is here. An earlier post on the "fractal" study the Nature article purports to debunk is here.

Not unrelatedly, Carol Vogel's most recent Inside Art column in the New York Times discussed how technology is playing a larger and larger role in the world of Rembrandt authentications.

The tension between science and connoisseurship when it comes to authenticating art plays a role in Malcolm Gladwell's best-selling Blink, where he discusses the case of a supposedly ancient Greek statue that was offered to the Getty for $10 million in 1983. Relying on months of careful study by a geologist (to determine the age of the piece), the museum concluded that it was authentic and went ahead with the purchase. When art historians looked at it, though, they experienced an immediate, "intuitive revulsion"-- and they turned out to be correct: the piece was eventually proven a fake, and the sale rescinded.

Eakins Ideas

Several commentaries in today's Philadelphia Inquirer. First, lawyer Dan Larkin suggests a compromise:

"Philadelphia supporters should offer to contribute a negotiated portion of the $68 million purchase price for these terms:
"Philadelphia ends legal efforts to prohibit the painting's move, efforts that would absorb large sums, earn the enmity of a major medical school at the heart of our major economic growth engine (health care), delay the 'transformational' benefit promised from the sale's proceeds, and raise awkward questions for museums that acquire works of art that also 'resonate' in their home cultures.
"In return, The Gross Clinic is displayed at the National Gallery and in Arkansas in a setting designed to ensure the painting powerfully proclaims its Philadelphia provenance to millions of national and international viewers annually. Text and photographs would complement the painting's illumination of the city's technical and cultural preeminence. Evidence of the city's leading role in 19th-century medicine would be placed in the context of the continuing preeminence of our medical schools, hospitals, and pharmaceutical and biotech firms.
"The painting returns home as honored guest and centerpiece for festive occasions marking major events central to the city or Eakins."

Art historian Marie Naples Maber says let it go: "I lament that this masterpiece may leave the city where I trained and have enjoyed the arts for more than 30 years. But I also understand that a broader perspective can be revealing. This painting has hung at Thomas Jefferson University since 1878. It was accessible to art-lovers through a telephone call and a reserved visit. If 500 people per year is all the audience such a world-famous work could muster, what meaningful difference does it make to Philadelphians if it's removed?"

And David Traub says the city should build a new "Museum of the Health Sciences" and put the painting there.

Getting There (UPDATED)

"The campaign to raise $68 million and retain Thomas Eakins' monumental painting The Gross Clinic in Philadelphia has reached about one-third of its goal," reports Stephan Salisbury in today's Philadelphia Inquirer. Carol Vogel puts the figure at $23 million.

Salisbury also reports that Pennsylvania Governor Ed Rendell plans to contact the buyers to discuss a possible extension of the Dec. 26 deadline to match the offer.

UPDATE: At his Illicit Cultural Property Blog, Derek Fincham posts about the city's move to designate the painting as historic:

"This is an interesting turn of events, and is the only example I'm aware of a city preventing the export of a work of art. Many nations attempt to prevent the export of works of art, but I am aware of no individual cities preventing the removal of an important work. The US is among the few nations in the world which has no export restrictions on works, due in part to its status as the largest art importer in the World. It's quite interesting to see an individual city make make similar claims to that of source nations such as Peru, Mexico or Egypt. The potential litigation in this case should be very interesting to watch unfold, if the trustees are unable to reach a satisfactory resolution with the city."

That's quite right, though as I mentioned in an earlier post, this is not the first time Philadelphia has done this. The same process was used to kill the sale of the Maxfield Parrish/Louis Comfort Tiffany mural Dream Garden to Steve Wynn in 1998.

Arrest in Public Art Tragedy

The artist who created the inflatable artwork that killed two women this summer has been arrested on manslaughter charges. The Guardian has the story here. The Independent has more here. Earlier post on the accident here.

Gross Clinic Must Stay Put (For Now At Least)

I wondered earlier this week whether the Philadelphia authorities would get a notice letter out to Jefferson University informing them that The Gross Clinic was being considered for designation as a historic object, thereby preventing it from being shipped out of town.

It looks like it had already happened.

Stephan Salisbury reports in the Philadelphia Inquirer today that

"a letter from Jonathan Farnham, the city's acting historic preservation officer, formally notifying Jefferson and the museums of the [commencement of the designation process] was mailed Nov. 20. From that date forward, the letter states, 'you are notified that no one may remove or alter The Gross Clinic, which is the object under consideration, without first seeking a permit from the Department of Licenses and Inspections.'"

A hearing by the Historical Commission's "designation panel" has been scheduled for Dec. 20. That panel will then make a recommendation to the full Commission, which has scheduled a "special session" the next day.

I assume it's a foregone conclusion that the painting will be designated as historic. I'd be curious to know whether the purchase agreement allows the buyers to back out of the deal in these circumstances. Who's going to be the plaintiff in the takings lawsuit against the city?

Not the only one

The Tennessean reminds us today that Jefferson University is not the only school facing difficult deaccessioning choices:

"[T]he financially strapped [Fisk University] has found itself in the middle of a controversy raging over its intent to sell two paintings from its Alfred Stieglitz Collection of Modern Art: Marsden Hartley's 'Painting No. 3' and Georgia O'Keeffe's 'Radiator Building — Night, New York.' Awaiting a February court date that will determine whether it has the legal right to sell the paintings, Fisk faces a dilemma. Will it be forced to hold onto these paintings, or will it stand to make millions while letting go of two hugely important masterworks, bequeathed to the school in 1949 by none other than O'Keeffe herself?"

Earlier Fisk posts here, here, and here.

Fake Art Show

The BBC reports:

"Experts from the art world are attending a police exhibition of fake and forged art works as part of moves to fight a crime believed to be becoming increasingly prolific. Amid the sea of historic artefacts, sculptures and magnificent paintings at London's beautiful Victoria and Albert Museum, one small room contains some duds from the art market. Many pieces in the Metropolitan Police's first exhibition of fake art work have fooled art experts and institutions. If genuine, the work in the display would be worth around £10m. Hoping to raise awareness of a crime they say is increasing and becoming more sophisticated, police have invited industry experts to their Investigation of Fakes and Forgeries show."

They may open it up to the public next year. Full story here.

30 Days

Not much news on the proposed Eakins sale since last week. Philadelphia institutions have until Dec. 26 to match the $68 million offer. Philadelphia Inquirer art critic Edward Sozanski had his say in yesterday's paper (the headline: "What Were They Thinking?").

Though I claim no expertise in Pennsylvania law, I did want to offer some preliminary thoughts on the steps taken by the city last week to have the painting designated as a historic object. It's not clear to me whether or not there's still time to block the sale under this process. The basic procedural structure is the following. When the Historical Commission considers designating an object, the Philadelphia Code requires it to give at least thirty days notice to the owner of the property proposed for designation. Then, at a mandated public meeting, "any interested party may present testimony or documentary evidence regarding the proposed designation." If the Commission decides to designate an object, it "shall send written notice of the designation ... to the owners." An owner may not "alter or demolish an historic ... object" "unless a permit is first obtained from the Department of [Licenses and Inspections]."

That much seems clear. What isn't clear is when the restrictions on moving the object kick in. As I read the statute, it's not until after designation -- in which case it would be too late. Unless it went out today, the 30-day notice period alone is enough to take us past the Dec. 26 deadline. On Dec. 27, the university could pack up the work and ship it off to Washington (whether it would have the political will to do so, in the face of such intense opposition, is another matter). [Update: I see now this is probably incorrect. Since the statute defines "demoliton" to include a moving of the work, it could not be shipped out while the designation proceedings are ongoing. See note below.] On the other hand, the Commonwealth Court's Dream Garden decision (discussed further below) suggests that the 30-day notice itself "invokes the Commission's jurisdiction over the properties being considered for designation and states that owners subject to the Commission's jurisdiction may not remove, demolish or alter the property without applying for a permit" (see footnote 3). That's Stephan Salisbury's take in the Inquirer as well: "[The Commission] must provide the owner of the property 30 days' notice before any hearing on the matter takes place. (Once that notice went out, the painting could not be moved while the matter was under consideration.)" (emphasis added). This reading seems to rest on Section 14-2007(7)(l) of the Code -- but that section merely says "The Department shall not issue any permit for the demolition, alteration or construction of any ... object which is being considered by the Commission for designation as historic where the permit application is filed on or after the date that notices of proposed designation have been mailed." But what permit is required to ship this painting to the buyer in the first place? [Update: It's been pointed out to me, correctly I think, that it's Section 14-2007(7)(a) that would require a permit here -- for "demolish[ing]" (i.e., moving) the painting.] If this reading is correct, however, then, at least in theory, the Commission could rush out a notice before the Dec. 26 deadline, putting the sale on hold until the designation process gets sorted out.

Finally, a word about the Dream Garden case. As Stephan Salisbury reported last week, "use of the preservation ordinance to protect artworks is unusual, but there are significant precedents. In the case of Dream Garden, a collaboration of Maxfield Parrish and Louis C. Tiffany whose sale ignited considerable public controversy, the Historical Commission acted after receiving a nomination request from then-Mayor Ed Rendell. Owners of the mural fought the designation, and a three-year legal battle ensued. That fight finally ended, without any court decision, when the Pew Charitable Trusts acquired the mosaic for $3.5 million and gave it over to the care of the Pennsylvania Academy of the Fine Arts." For more background on Dream Garden, see here.

It's true there was no court decision on the merits -- but, as I mentioned above, there was a decision by the Commonwealth Court, on the narrow question whether the Historical Commission's "designation of the Dream Garden as an historic object is a final adjudication and thus appealable under Local Agency Law" (it held that it was). In the course of that narrow decision, the court made it very clear that the designation raised serious "regulatory taking" issues. In discussing the harm to the owner, it said:

"First, the proposed sale of the Dream Garden for nine million dollars collapsed due to the threat of historic designation. Currently, the [owner] is prevented from moving or altering the work of art from its present location forestalling any chance of any future sale. Unlike the designation of a building or a structure, which can be adapted for other uses, the historical designation of Dream Garden precludes any right of private ownership of the work or art. The [owner] has no viable economic use of its property, following designation. .... We conclude that this hardship to the [owner] establishes this challenge ... is ripe for judicial review."

New Massachusetts Consignment Statute

Aaron Silverstein has a nice post up summarizing the re-worked Massachusetts consignment law, which goes into effect in February. The text of the new statute is here.

New York's (quite similar) version is here.

"The Growing Problem of Fakes and Forgeries in American Art"

That's the title of an IFAR-sponsored talk to be given by Ted Stebbins, the Fogg Art Museum's curator of American art, at the Dahesh Museum of Art in New York this Thursday evening. Details here.

Art & Fashion (UPDATED)

Tyler Green doesn't think much of the new Fashion Show at the Museum of Fine Arts in Boston. The New York Times had a more sympathetic account a couple of weeks ago ("for those who are tabulating the cultural value of elevating the fashion industry's most effective marketing tool -- the runway -- into a subject for serious discourse in an institution of fine arts, 'Fashion Show' provides as much unexpected substance as it does eye candy"). But there's been a lot of discussion of fashion among intellectual property scholars lately as well. Eugene Volokh points to a paper by Kal Raustiala and Chris Sprigman entitled The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, which they summarize as follows:

"The Piracy Paradox is about the challenge that the fashion industry presents to the orthodox theories of IP. Advocates for strong IP rights argue that absent such rights copyists will free-ride on the efforts of creators and stifle innovation. Yet fashion presents a significant empirical anomaly: the industry produces a huge variety of creative goods without strong IP protection in one of its biggest markets (the United States), and without apparent utilization of nominally strong IP rights in another large market (the countries of the European Union). Copying and derivative re-working are rampant in both the U.S. and E.U., as the orthodox account would predict. Yet innovation and investment remain vibrant.

"Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected --and economically successful? The fashion industry is a puzzle for orthodox IP theory. Our paper explores this puzzle."

The University of Chicago Law School Faculty Blog recently hosted a group blog session on the paper here. Tyler Cowen discussed this issue here, pointing also to this 1997 law review article and this IP-related fashion blog by Susan Scafidi, author of Who Owns Culture?: Appropriation And Authenticity In American Law.

UPDATE: In this week's New Yorker, Judith Thurman reviews another fashion-related show, this one at the Los Angeles Museum of Contemporary Art: "'Skin + Bones: Parallel Practices in Fashion and Architecture' is the first exhibition of its scale and kind—more than three hundred contemporary works by forty-six mostly avant-garde architects and designers, chosen to represent what Brooke Hodge, MOCA’s curator of architecture and design, calls the 'increasingly fruitful dialogue' between the two disciplines."

CAPC Indecency Charge

From The New York Times this weekend:

"A group of museum directors and curators signed a petition in London [Friday] protesting the indecency charges against Henry-Claude Cousseau, director of the École Nationale Supérieure des Beaux-Arts in Paris. Mr. Cousseau is under investigation for an exhibition, 'Presumed Innocent: Contemporary Art and Childhood,' at the Centre d’Arts Plastiques Contemporain in Bordeaux six years ago, when he was the director there. That show, with works by Mike Kelley, Cindy Sherman, Tony Oursler, Annette Messager, Nan Goldin and others, drew complaints from La Mouette, a child protection group, and Mr. Cousseau, along with two curators, faces charges in connection with exhibiting 'works of a violent pornographic nature, unacceptable for a young public.' If convicted, he could receive a fine and up to three years in prison, according to a statement released on behalf of the signers of the petition, who include Nicholas Serota, director of the Tate Gallery; Alfred Pacquement, director of the Centre Georges Pompidou; Robert Storr, dean of the Yale School of Art; Ralph Rugoff, director of the Hayward Gallery in London; Claire Hsu, executive director of the Asia Art Archive in Hong Kong; and 12 others."

More here from Artforum (second item).

"We should be encouraging donations of artwork, not discouraging them"

Forbes.com has an excellent piece up about the change in the fractional gift laws -- "Will Democrats Ride To Museums' Rescue?" It's the first news article I can recall seeing that properly conveys the importance of what I've been referring to as the "mismatch" problem:

"An even bigger hit is that the new law locks the artwork's value (for deduction purposes) in at the time of the initial fractional gift. This creates the crazy situation--presumably unintended by Congress--where a collector or his estate could owe gift or estate taxes on a charitable gift. The current market value of the part of the art that hasn't yet been donated is included in the estate. But the estate's charitable deduction for the remainder of the art gift is based on the lower value at the time the fractional gift began. As a result, fractional donations have come to a halt. Even donors who had started giving a work before Aug. 18 [the effective date of the new law] aren't giving additional percentages, for fear that will subject their estates to this extra gotcha tax."

The story notes that a number of museums have written letters to the Senate Finance Committee asking for changes, "[b]ut their best chance for relief is in the next Congress, when New York’s senior senator, Democrat Charles Schumer, should have lots of influence":

"[T]he museums have a friend in Schumer, a Finance Committee member who was just elected the third-ranking member of the Democratic leadership. Last week, Schumer and Sen. Gordon H. Smith, R-Ore., wrote a letter to [outgoing Senate Finance Chairman Charles] Grassley and incoming Senate Finance Committee Chairman Max Baucus, D-Mont., offering to help 'find a middle-ground solution to the fractional gifts issue' in the next Congress."

Back next week. Happy Thanksgiving to all.