“Why the City would allow this to happen to a work of art is beyond comprehension …”

The Art Newspaper had a story last week on the mistreatment of my client Brian Tolle (best known in New York for his Irish Hunger Memorial downtown) by the Miami Beach public art authorities.  Long story short, first they were unable to maintain the work, letting it be used as an outdoor toilet (see photo here), and then they decided the best way to deal with the problem was to just remove the work and stick it in storage, where it remains today.

The Art Market Monitor sums it up:  Miami Removes $400k Work Without Consulting Artist.

And Sergio Muñoz Sarmiento has lots more here, including the following excellent series of questions:

“Did the City not seek out recommendations for the care and maintenance of Tolle’s art work? Did City officials really think that removing (and possibly damaging or destroying) Tolle’s art work without Tolle’s consent would be cheaper than cleaning and maintaining the art work? In essence what we’re asking is, did the City just think that it could do as it pleased with a legally protected work of art, and with complete disregard to the artist’s wishes?”

And, in the comments to his post:  “Hopefully the City of Miami will find a … way to not only respect Brian Tolle’s work, but to reinstall it the way that the taxpayers have paid for it.”

Let’s hope.

A Couple of Takes on Perelman-Gagosian

Shane Ferro:  Don't Sue Your Art Dealer, Because You Won't Win.

Nicholas O'Donnell:  "Buyer beware remains good advice."

"Obviously, creative ownership of art works is not a concept we have clearly defined ..."

"... We thought we had, but our old definitions are disintegrating with every cellphone photo and every screen grab."

Six years for damaging a Monet

Happened at the National Gallery of Ireland.

"The appeals court, however, agreed with King’s argument that ... because of the gallery’s expertise, she wasn’t negligent in relying on their assurances about authenticity."

A Park West lawsuit is reinstated.  These have been going on for a long time.

Perelman’s Lawsuit Against Gagosian Dismissed

New York Times story here.  First Department decision here.  The case had been on life support for some time (although not everyone noticed):  everything but the fraud claim had been thrown out earlier this year, and this decision got rid of that claim too, on the grounds that (a) Perelman, a "sophisticated" plaintiff, could not demonstrate reasonable reliance on the alleged fraud, because he "conducted no due diligence" of his own, and (b) statements about the value of art (which is what the fraud claim was about in this case) "constitute non-actionable opinion."  Felix Salmon nailed this one from the start.

Some Graffiti Litigation Updates

From Nicholas O'Donnell.

"Seller of Art Fakes Pleads Guilty to Wire Fraud" (UPDATED)

"Prosecutors said the man, John Re, 54, claimed the pieces were by Jackson Pollock and Willem de Kooning, and caused about $2.5 million in losses to victims."  He faces up to 20 years in prison.

UPDATE:  Press release from the U.S. Attorney's office here.

"For better or worse, fine art is now firmly planted alongside equities, bonds, commodities and real estate as an asset class."

James Stewart in the NYT on the state of the art market.

Felix Salmon can't even.

Related:  Is anyone really creating art loan CDOs?

There ought to be a law

Michael Rushton notices something missing in Lee Rosenbaum's latest call for "legislation or government regulations" to enforce the AAMD position on deaccessioning.

"[M]ore likely, the Supreme Court will eventually choose to take this question on directly to clarify the line between fair use and the derivative work right ..."

"... a line which, for now at least, appears precariously subject to the whims of whichever court is tasked to draw it."

Speaking of appropriation and fair use, Steven Schindler and Katherine Wilson-Milne had a piece in the New York Law Journal last week on the Kienitz decision.

"If a visual artist can appropriate for whatever reason, under the guise that any form of appropriation is, per se, fair use, why can’t a corporation do the same?"

Sergio Muñoz Sarmiento has some more thoughts on appropriation and fair use -- and it's always great when he and Alfred Steiner get into it in the comments.  I think the real value in Sergio's shoe-on-the-other-foot examples is that they point up a problem with the emphasis on "different purpose" in the fair use analysis.  That is, imagine a corporation uses an artist's work in a major ad campaign to sell their widgets.  Couldn't they argue that their use had a completely different purpose (selling widgets) than the artist's ... and thus was transformative ... and thus fair use?

I wonder if they understand it means their collections now belong to the "public trust"

The New York Times:  A New Status Symbol for Billionaires:  Art Museum.

(Related post on a puzzle these museums present here.)

Because it's the coin of the realm?

Or maybe it's just common sense.

BBC arts editor Will Gompertz wonders:  Why is the Georgia O'Keeffe Museum selling her work?

It's a good question, for which the Deaccession Police will give their usual answer (i.e., shut up).

But this sale really is a good example of why it's silly to think of what the AAMD does as anything resembling "ethical" reasoning.  They have no way of grappling with a sale like this, no standpoint from which to evaluate it.  They just ask a simple question:  are you using the sales proceeds to buy more art?  If the answer is yes, there ends the "ethical" inquiry.

Tell me again about the public trust ($44.4 million edition)

The Georgia O'Keeffe Museum sold one of O'Keeffe's "classic flower paintings" for $44.4 million at Sotheby's this morning.

The painting had of course been Held In The Public Trust but, when reached for comment, a spokesperson for the Deaccession Police said:  Nothing to see here, move along.

I covered the particular absurdity of this example, with an assist from Peter Dean, here.

"Why does it matter if a painting or an object is the 'real' thing?"

Polly Toynbee in the Guardian:  Why do we only worship "real" works of art?

"If Artists Need to Know About VARA, So do Judges"

Daniel Grant on a "baffling" decision in the Southern District.

"The quality of the supply to me suggests that 'finance' thinks trouble may be on the horizon."

"That said, finance is not always right, least of all about itself."

An economist visits Christie's.

Related:  Sotheby’s Guarantees to Consignors Total a Whopping $392.6 million as of Oct. 16.

How copyright law could get you killed

Timothy Lee explains at Vox.

"All eyes on Detroit for bankruptcy ruling" (UPDATED 2X)

1 p.m. today.  Approval "widely expected."

UPDATE:  Approved.

UPDATE 2:  Tons of coverage of the news, including:  Mark Stryker: DIA supporters elated by bankruptcy decision.  Wall Street Journal: Art Was Key to the Deal. Randy Kennedy: "Grand Bargain" Saves the Detroit Institute of Arts. (And more from the Times.)  Jillian Steinhauer at Hyperallergic.  The museum applauds.  Slate's Jordan Weissmann: "So Detroit gets to keep its art collection. Pensioners get to keep a little more of their income. And the museum never has to worry about municipal finances ever again. A nice bargain all around."  Nathan Bomey: "With one sentence -- 'The market value of the art, therefore, is irrelevant in this case' -- Rhodes squashed 16 months of debate."  Kriston Capps: "One way to think about Detroit's art collection: Love for it inspired foundations to help rescue pensions."