"Household Items"

The New York Law Journal notes a First Department decision today [$] holding that a bequest of "household items" includes "all the artwork in testator's home, whether on display or stored in a closet." The case is Estate of Isenberg v. Berger.

Latest on the Gardner Theft

The Boston Globe reports that the FBI is considering using billboards as part of its continuing efforts to track down $300 million worth of artwork that was stolen from the Isabella Stewart Gardner Museum in Boston in 1990. The FBI says the plan is "under consideration," but they "have no imminent plans."

Here is a comprehensive story on the the Gardner theft, which remains on the FBI's list of Top Ten Art Crimes.

Flush With Pride

Police in northern Italy have impounded an artwork consisting of a toilet that flushes to the sound of Italy's national anthem and which had been on display at the Bolzano Museum of Modern Art. Story here.

Who the $#%& is Jackson Pollock?

That's the title of a documentary that I see from today's New York Times "Holiday Movie Preview" opens at the IFC Center on Nov. 15. It's about "the 15-year struggle of Teri Horton, a 73-year-old former truck driver, to authenticate a $5 painting she bought in a thrift shop as a lost Jackson Pollock masterpiece." The title comes from her response when when an art teacher pointed out that the painting looked a lot like a Pollock.

The UK Telegraph has more on the story here. The movie's official site is here.

Who knew what, when

The Philadelphia City Paper follows up on the Barnes "secret budget item" (a $100 million item from the 2001 state budget, which was in place before the relocation suit was filed), first reported by Christopher Knight in the Los Angeles Times last month and mentioned earlier here.

Fractional Gifts Update

The Minneapolis Star Tribune had a story yesterday on the change in the law governing fractional gifts of art, which I've written about several times (including here, here, and here). It reports that Minnesota Senator Norm Coleman is working with Senators Charles Schumer and Gordon Smith "on some minor legislative changes," though doesn't indicate what the changes might be.

As in most other press reports about the new law, there's no mention of the most important problem with it -- what I've been calling the "mismatch" problem. There's also one important misstatement: the article says "Museum officials are troubled by the new law's requirement that they take possession each year. If they own 20 percent of a sculpture, that means they must have it at the museum for 73 days each year" (my emphasis). There is no such requirement in the new law. Under the old law, the museum was required to have the right to possession of the work for a portion of the year equivalent to its fractional interest -- but the museum didn't actually have to exercise that right; legal entitlement to possession was sufficient. (This is the so-called Winokur rule, after the Tax Court's 1988 decision in Winokur v. Commissioner.) The new law does many things, but overrule Winokur does not appear to be one of them. Now, the museum has to take “substantial physical possession” of the work within the ten year/before death statutory period -- but there is no express requirement that the museum’s possession correspond to the fractional interest it’s been given (it just needs to be "substantial"), or, to the point made by the Star Tribune story, that it happen on a year to year basis. So if a collector gives a 25% interest in a painting to a museum, the deduction will presumably be allowed even if the museum never takes actual possession until the tenth year. The collector’s ability to retain possession while claiming a deduction seems to remain intact -- just as long as the museum takes “substantial physical possession” at some point within the statutory timeframe.

The flip side of this would be a collector who donates a fractional interest in a painting in November 2006 -- fully intending to convey "substantial physical possession" sometime in late 2007 -- but who dies suddenly in early 2007, without the charity having taken possession of the painting. Here, recapture of the charitable deduction would apparently apply. This is something that could perhaps be dealt with in regulations, but until then anyone who makes a fractional contribution would be wise to arrange for possession by the charity sooner rather than later. All of which, however, is probably academic at the moment since, as I've said, there isn't going to be anybody making fractional gifts -- at least pending the "minor legislative changes" Senators Coleman and Schumer are apparently working on.

New Record?

Carol Vogel reports in today's New York Times that David Geffen has sold a Pollock painting, "No. 5, 1948," for "about $140 million," a price which, "if officially confirmed," would be the highest ever known to have been paid, surpassing the $135 million Ronald S. Lauder paid in June for Klimt’s “Adele Bloch-Bauer I.” She identifies the buyer as David Martinez, a "Mexican financier who bought a two-floor apartment in the south building of the Time Warner Center for $54.7 million recently."

"The Law Firm of Hubris Hypocrisy & Greed"

Fortune magazine has a long story on the troubles at famed class-action law firm Milberg Weiss, which was recently indicted for allegedly paying the plaintiffs in their cases millions of dollars in illegal kickbacks. Interestingly, it was a case of art-related insurance fraud that put in motion the chain of events that led to the indictment.

As Fortune tells the story, it all started with a report of domestic abuse in a Cleveland suburb in 1996. The alleged abuser was James Little, an attorney with Arter & Hadden, a large (but now defunct) Cleveland firm. The complainant mentioned to police that Little, in addition to having a serious crack habit, was also in possession of millions of dollars worth of stolen paintings. In February 1997, Little struck an immunity deal and led the FBI to a storage locker rented by his mother. Inside were Picasso's "Nude Before a Mirror" and Monet's "The Customs Officer's Cabin in Pourville." Little said he had brought the paintings to Ohio after having been given them to hold for "safekeeping" several years earlier by a former colleague in Los Angeles, an entertainment lawyer named James Tierney, who in turn had taken possession of them as part of an insurance scam pulled off by a retired eye surgeon named Steven Cooperman. Cooperman had reported the two paintings stolen from his Brentwood home in 1992 (by which time he had served as lead plaintiff in dozens of Milberg Weiss lawsuits). He was deeply in debt and facing foreclosure on his house when the paintings disappeared:

"Police were immediately suspicious. Nothing else was missing, there was no sign of forced entry, and the ... alarm system hadn't made a sound. But the doctor had an alibi: He and his third wife had been vacationing on the New Jersey shore. The theft, of course, was faked. Cooperman had enlisted his lawyer friend Tierney, who agreed, as Tierney later put it, to 'help him bury the body.' Cooperman gave him the keys and the alarm code for the house; Tierney made off with the paintings after the doctor left for vacation."

Cooperman filed an insurance claim for $12.5 million. Initially, the insurance companies refused to pay, but Cooperman sued for the full $12.5 million plus punitive damages. The case soon settled for $17.5 million, and the paintings remained missing for five years, when the domestic abuse complaint led police to James Little's chatty girlfriend. Little then led the FBI to Tierney, who in turn led them to Cooperman, who in 1999 was convicted in Los Angeles of insurance fraud.

"Facing up to ten years in prison, he was released on a $10 million bond .... He hired a new lawyer, ... who raised the idea of cutting a deal with prosecutors to reduce his client's prison time. Did Cooperman know anything - anything big - that might be of interest to the federal government? ... As it turned out, Cooperman did know something big: the secrets of Milberg Weiss."

NYLJ on Trademark Dilution

Tomorrow's New York Law Journal has a piece by Paul Llewellyn of Kaye Scholer on the recently passed Trademark Dilution Revision Act, which I wrote about previously here.

Selling Schiele

This is not going to make the "absolutists" happy.

Koons Wins

The New York Law Journal reports today ($) on a big victory by Jeff Koons in a copyright infringement lawsuit brought against him by photographer Andrea Blanch. Koons used part of a photograph by Blanch in his painting "Niagara" (which you can see, and read about, here). The Southern District granted summary judgment to Koons on fair use grounds last year, and the Second Circuit has now affirmed.

Blanch's photo, entitled "Silk Sandals by Gucci" (you can see a mediocre black-and-white reproduction here), appeared in Allure magazine in 2000. Koons digitally scanned the photo and incorporated it into "Niagara," as one of the four pairs of legs depicted (the ones second from the left). He used only the legs -- "discarding the background of the airplane cabin and the man's lap on which the legs rest." He also "inverted the orientation of the legs so that they dangle vertically downward ... rather than slant upward at a 45-degree angle as they appear in the photograph." He added a heel to one of the feet, and modified the colors.

As Professor Patry says, "the case can be reduced to two fundamentals: Koons' use was highly transformative and the copyright owner suffered no harm to her market; the rest is window dressing." On the first point, the Court noted that when a work is "used as 'raw material' in the furtherance of distinct creative or communicative objectives, the use is transformative." Quoting the Supreme Court's opinion in Campbell v. Acuff-Rose Music, Inc. (the 2 Live Crew /Pretty Woman case), it went on to say "the test for whether 'Niagara's' use of 'Silk Sandals' is 'transformative' ... is whether it merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message" -- a test which, in the Court's view, "almost perfectly describes Koons's adaptation of 'Silk Sandals': the use of a fashion photograph created for publication in a glossy American 'lifestyles' magazine -- with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details and, crucially, their entirely different purpose and meaning -- as part of a massive painting commissioned for exhibition in a German art-gallery space."

On the second point -- the lack of harm to her market -- Blanch had conceded that (1) she has never licensed any of her photos for use in works of graphic or visual art, (2) that Koons's use did not cause any harm to her career or interfere with any plans she had for "Silk Sandals" or any other photo, and (3) that the value of "Silk Sandals" did not go down as a result of this use. "In light of these admissions," concluded the Court, "it is plain that 'Niagara' had no deleterious effect upon the potential market for or value of the copyrighted work."

I think the Court clearly reached the right result here -- I agree with Professor Patry that it's a "commendable decision" -- but I have the same discomfort with it that I always have with any fair use decision: the nagging sense that it doesn't really provide much useful guidance going forward. Consider Rogers v. Koons, another fair use case which Koons famously lost. There, Koons took a postcard photograph of a group of puppies with their owners and turned it into a sculpture called "String of Puppies." (You can see the photograph and Koons's sculpture, side-by-side, here.) Is there any doubt Koons used the postcard "as 'raw material' in the furtherance of distinct creative or communicative objectives"? That he "added something new, with a further purpose or different character, altering the first with new expression, meaning, or message"? Doesn't that "almost perfectly describe Koons's adaptation of" Rogers's postcard photo: the use of an ordinary photograph created for sale in commercial card shops -- "with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, their details and, crucially, their entirely different purpose and meaning" -- as part of a large sculpture produced for exhibition in a leading New York art gallery? Professor Patry suggests that because "Niagara" used only portions of Blanch's photo, and as part of a collage, "it was easier for the court to see the transformative nature" of the use. Perhaps. But what if Koons hadn't dropped the lap on which the legs rested, or changed their direction, or added a heel or modified the colors? What if he did two of those things but not the others? When can an artist feel comfortable that he's done enough transforming to avoid a lawsuit? Maybe Judge Kozinski is right that "the real issue is that fair use doctrine is a red herring that we should just dump."

A long 15 minutes (UPDATED 2X)

Forbes.com has its annual list of Top-Earning Dead Celebrities, and Andy Warhol checks in at no. 6. He brought in $19 million last year:

"Most recently, his estate, managed by the nonprofit Andy Warhol Foundation for the Visual Arts, signed off on a new apparel line with jeansmaker Levi Strauss & Co. It will also reap royalties from a licensing deal with Barneys New York. The high-end department store will feature Warhol's work in a holiday campaign--think bags, billboards and store windows--aptly titled 'Happy Warholidays.'"

Here is the rest of the top 10:

1. Kurt Cobain
2. Elvis
3. Charles Schulz
4. John Lennon
5. Albert Einstein
6. Warhol
7. Dr. Seuss
8. Ray Charles
9. Marilyn Monroe
10. Johnny Cash

The Washington Times reports here. My post on last year's list (when Warhol placed fourth) is here.

UPDATE: Relatedly, the lead story in today's New York Times Style section is entitled "The Selling of St. Andy." It says "the marketing of Andy Warhol is in full flood" -- in carpets, coffee mugs, calendars, greeting cards, T-shirts, tote bags, a line of Levi’s jeans called Warhol Factory X ($185), shoes, plastic Day-Glo colored watches by Seiko, makeup. Even a Pez dispenser.

What would Warhol have thought of all this? Dealer Jeffrey Deitch is quoted as saying it's “the fulfillment of Andy’s fantasy about business art. I think he would have been amazed to see what has developed.”

UPDATE 2X: A reader points out that I somehow left Marilyn Monroe off the list. Now corrected above.

"One for the books"

Dan Barry has a column in tomorrow morning's New York Times on "the increasingly muddy Estate of William M. V. Kingsland — né Melvyn Kohn," which, as I mentioned last week, included a number of stolen artworks. Barry writes:

"A central question for everyone, of course, is Mr. Kingsland’s role in all this. Was he a thief, a fence, or just an innocent collector of pretty things that happened to be hot?"

Renoir Infringement Suit

The Arizona Republic reports on a copyright infringement lawsuit involving some Renoir sculptures that went to trial today to determine the extent of damages; liability was decided on summary judgment earlier this year.

The background to the lawsuit is in this report from a year ago. The defendants in the case are Rima Fine Art in Scottsdale and its individual owners, as well as Jean-Emmanuel Renoir, Renoir's great-grandson, who lent his name to the gallery's plans "to sell hundreds of thousands of Pierre-Auguste Renoir sculptures, merchandised as everything from bedding and bird feeders to dolls, diamonds and dog leashes." The lawsuit was brought by the Societe Civile Succession Richard Guino, a French trust. Renoir worked with artist Richard Guino from 1913 to 1918, when, in his 70s and hindered by arthritis, he began to make sculpture. At least 17 works resulted, initially signed only by Renoir, who died in 1919. Guino died in 1973. His family then sued the Renoir estate, and in 1982 the family was awarded co-authorship of the works by the French courts. Profits have since been divided between the two families, and the original plasters "placed in a neutral domain, the Susse Foundry in Paris."

The current case turns on a hypertechnical question of copyright law -- whether publishing a pre-1978 work in a foreign country without a copyright notice placed the work in the public domain in the U.S. The gallery's lawyer is quoted as saying "[b]asically what [the District Court Judge] said was that he believed we were correct, but he was bound by the 9th Circuit" -- and, for once, that doesn't appear to be mere spin from the losing side. The District Court said that it would follow the 9th Circuit's decision in Twin Books Corp. v. Walt Disney Co. (83 F.3d 1162 (1996)), which held that the foreign publication without notice did not cause the work to enter the public domain (hence the finding of infringement here), but made it very clear that it was doing so against its better judgment.

The District Court had suggested that an interlocutory appeal might be appropriate given the circumstances. The 9th Circuit apparently turned it down, but I'm sure the case will be back before it pretty soon.

Steve Wynn's Elbow

I'm a little late getting to the story of how Steve Wynn put his elbow through Picasso's "Le Reve," which he was about to sell to collector Steven Cohen for $139 million. Nick Paumgarten had an amusing piece about it in last week's New Yorker. Nora Ephron, who was an eyewitness, wrote about it at the Huffington Post. Artnet covered it here (second item).

Problem is, as law prof Miriam Cherry says in the comments here (scroll down), there really aren't any interesting legal issues here. One possibility is the contract angle (before the accident Wynn had agreed to sell the work to Cohen) -- but he willingly rescinded the sale. As Cherry says at her own blog, "it would have made for a more interesting contracts problem if Wynn hadn’t done the honorable thing and agreed to keep and repair the painting!" The Wall Street Journal's law blog calls it "The Greatest Contract Dispute That Never Was."

Nor are there any moral rights issues: Wynn could have intentionally put his elbow through the painting for all the law cares. (Cherry titles her post, "The Right to Destroy," which was also the title of an earlier post of mine; and her fellow law prof Avi Bell is put in mind of Joseph Sax's Playing Darts with a Rembrandt, also mentioned in my earlier post. He says,"I'm not sure quite how this story fits in, but it has to say something.")

Maybe the real takeaway lesson here, if there is one, is: Anything can happen. As a commenter at the Wall Street Journal blog says, it's "a good example to use the next time a client dings me for worrying too much about 'unlikely' events when negotiating indemnities and other 'what if' contract provisions."

Here is an image of "Le Reve." Here is a Wikipedia entry on Wynn's art collection (already updated, of course, to include these developments). And here is Wikipedia on Cohen as collector (also right up to date).

Virtually Dali

There was a long piece in the New York Times last week about the virtual world of Second Life and how it's "is fast becoming a three-dimensional test bed for corporate marketers, including Sony BMG Music Entertainment, Sun Microsystems, Nissan, Adidas/Reebok, Toyota and Starwood Hotels." Apparently a Congressional committee is investigating whether virtual assets and incomes should be taxed (I can't imagine how they could).

Here's the art law connection:

"Mr. Verbeck of Electric Sheep said copyright infringement was rampant. His company runs an online boutique where Second Life residents sell each other pixelized creations of everything from body parts to home furnishings to roller skates — many of them unauthorized knockoffs. So far, the boutique has not had many requests to stop selling fake products. But 'we did have a request from the Salvador Dali Museum — which was great,' Mr. Verbeck said. 'Second Life is so surreal that it was perfect.'”

Pretty Sure This Isn't Legal

I'm no expert on Russian law but I'm going to go out on a limb and say this is against the law:

"A group of men burst into a contemporary art gallery [in Moscow] Saturday, destroying work by an ethnic Georgian artist and beating up the owner, Marat Guelman. Mr. Guelman is well known both for his display of politically inspired and irreverent art and, most recently, his public attacks on neofascists for their dislike of non-Russians and of Western influence on Russian society."

The full story is here.

"It just adds another layer to the mystery of Billy Kingsland”

The New York Times today reports on the odd tale of William Milliken Vanderbilt Kingsland, "for decades a curmudgeonly fixture of Upper East Side society, an occasional art dealer and full-time gossip," who died intestate in March. It turns out that some of the art that crammed his Upper East Side apartment had been stolen, including two paintings that went missing from Harvard's Fogg Art Museum more than 30 years ago -- an 18th century portrait by John Singleton Copley, and a a portrait of a former Harvard president. The Times quotes "a court official familiar with the investigation" as saying a Giacometti bust Kingsland owned was also stolen, and that Christie’s had withdrawn it from a scheduled sale. Stair Galleries, an auction house in Hudson, N.Y., which recently auctioned off 250 of Kingsland’s works, is now "contacting every buyer and undoing the entire auction, which yielded $200,000."

The New York Sun, which back in April ran a lengthy obituary of Kingsland (who the Times also reports today was actually born Melvyn Kohn), has a story on this latest twist too here. They report that, "while Stair Galleries did buy some of Kingsland's art collection, Christie's bought the most valuable artwork from the estate."

Lichtenstein and Copyright

Alex Beam has an interesting piece in the Boston Globe on copyright issues surrounding Roy Lichtenstein's use of images from comics. An art teacher named David Barsalou has been tracking down and cataloging specific comics that were the inspiration for Lichtenstein's paintings; so far he's found about 140. "Color me naive," writes Beam, "but I never thought Lichtenstein's work was a direct copy of scenes from comic books. I assumed that he stylized certain scenes suggested by the comic vernacular of the 1950s and 1960s." He also correctly points out that Lichtenstein could have faced serious copyright problems (Beam doesn't mention it, but just think of Rogers v. Koons); he says the interesting question is why he never did. The question is in any case now moot: there's a three-year statute of limitations for copyright claims.

You can see samples of Barsalou's research at his website, Deconstructing Roy Lichtenstein.

Something rotten in the state of Pennsylvania?

Christopher Knight of the LA Times finds something fishy in the fact that "two state appropriations for the Barnes Foundation totaling $107 million were made 13 months before" the start of the hearing on the Foundation's petition to move to Philadelphia. But Lee Rosenbaum says it's a tempest in a teapot.