4.62 miles

As I mentioned below, I got a chance, thanks to Friend of the Barnes Evelyn Yaari, to see The Art of the Steal last night at the New York Film Festival. I was pretty disappointed. It's basically a piece of agit-prop; it makes no effort to provide any sort of balance. (I guess I should have been tipped off by the title. No matter what you think of the decision, in what sense were the Barnes works "stolen"? The movie keeps emphasizing that they are moving less than five miles away. Shouldn't it have been called The Art of the Move a Few Miles Up the Road?) I'm sure there will be lots to say about this as it goes out into wider distribution, but for now some initial thoughts:

1. As I've mentioned before, to my mind one of the overarching lessons of the story is the perils of anti-deaccessioning absolutism. The movie mentions that the Barnes art is worth between $25-30 billion. Whether you think the financial troubles at the Barnes were (a) the cause or (b) the pretext for the move (or, if you prefer, theft), those troubles could have been forever solved by the sale of a tiny fraction of the works (without ever going anywhere near the core masterpieces of the collection). Now, if you're going to stick to your position that museums can never sell art (except to buy more art), then you've got to at least accept the possibility that something worse might happen as a result. That's exactly what happened here. Would you rather have 99.whatever percent of the collection in its original location? Or 100% of the collection in a new location?

2. The movie never really grapples with the public-private issue. A number of the talking heads, including Julian Bond, emphasize that it was Dr. Barnes's work so he could do whatever he wanted with it (including limiting the number of days the collection was open to the public, and the number of permitted visitors). But aren't we always told that great works like these are "held in the public trust"? Doesn't it matter at all that many more people will get to see the works in their new location? I'm not saying that the public interest necessarily trumps Dr. Barnes's intent, but it's a difficult question which, as I say, the film just glides over.

3. There's another tension that I think undermines the whole narrative of the film (and all other Barnes-related conspiracy theories). On the one hand, we're told that the Philadelphia Establishment (cue Darth Vader music, boo, hiss) made no bones about its desire to get its hands on the Barnes Collection from just about the moment it opened. But then, any time any objective evidence of that desire is discovered (whether it's a line item in the city budget in 2002, or a reference in a tax filing by the Pew Charitable Trust, or a conversation involving Governor Rendell in the mid-90s), we're supposed to see it as establishing some kind of secret conspiracy to snatch the collection. We know the powers-that-be wanted to move the Barnes to Philadelphia because they succeeded in moving it. So why bother with all the conspiracy theories? (But see again point 1 above. If it weren't for the Barnes's constant financial troubles, their evil plot to bring the collection to a wider audience could not have succeeded.) I discussed the "secret" budget-appropriation and Pew tax-filing points a couple of years ago here.

I'll stop there for now, and also recommend Richard Lacayo's five-part series on the subject (start here) and Julia Klein's piece in the Wall Street Journal yesterday.

Charitable Deductions Update

The Chronicle of Philanthropy reports that the Baucus bill includes a 35 percent cap on charitable deductions by wealthy taxpayers (defined as individuals earning $200,000 and families earning $250,000):

"That is less drastic than the 28-percent limit proposed by President Obama. But a coalition of nonprofit leaders this week sent a letter to Mr. Baucus opposing the amendments, saying they would create a disincentive for charity’s biggest donors during a 'tough charitable giving environment.'

"'Charitable organizations are dealing with enormous financial challenges stemming from the economic downturn,' says the September 21 letter, which was signed by representatives of 14 groups including the American Association of Museums ...."

Fake Kahlos?

The New York Times had more yesterday on the group of disputed Frida Kahlo works mentioned earlier here:

"Last week the Mexican government trust that controls the copyright to Kahlo’s work filed a criminal complaint against [the works' owner], a measure aimed at investigating the works. The trust is also investigating legal recourse in the United States to halt sale of [a book published by Princeton Architectural Press about the works]."

David Nishimura says: "Just from reading the article, it's obvious that the 'discovery' is an audacious but incompetent exercise is fakery -- yet the writeup is pitched as if there is a real debate about the material's authenticity."

"A clear case of injustice ends in victory for free speech"

The Buffalo News on the end of "the four-year ordeal of artist and University at Buffalo professor Steven Kurtz."

"What Cha-gall!"

That's the lede to this New York Post story on a state court lawsuit by collector Joy Glass against art dealer Lyn Segal:

"The painting came with a certificate of authenticity from the Comité Chagall -- a French group recognized as the ultimate authority on Chagall's works. But in January 2009, the group told Glass that both the painting and certificate were fake, the suit said."

Joyce Settlement

Law.com reports that "the estate of author James Joyce has agreed to pay $240,000 in legal costs incurred by a Stanford University scholar following a fair use legal battle." Aided by the Stanford Law School Fair Use Project, the scholar -- Carol Shloss -- had brought an unusual "copyright misuse" action against the estate, which settled, but she then was awarded $326,000 in legal fees as the prevailing party.

The Fair Use Project's Anthony Falzone reacts here.

Another Art Theft

I mentioned the $27 million Pebble Beach art theft below. The Edmonton Sun reports on a much smaller, and less complicated, theft from a Toronto gallery:

"The art rustlers threw a rock through the front window of Gallery Gevik just after 1:30 a.m., picked up the three paintings -- worth as much as $60,000 -- and fled the ritzy downtown neighbourhood before the cavalry arrived in response to the security alarm that was set off."

Mark Durney: "Because this theft appears to be so basic, it would not surprise me to find that an individual from the Toronto area stole the paintings to simply pay for his own 'fix.'"

And We're Back

I've been busy atoning for my sins ("and for the sin of considering even the possibility of selling a work of art to keep a museum from closing its doors . . .") and seeing The Art of the Steal at the New York Film Festival (more on that later) and fallen a little behind, so let's start catching up on some news from the last few days, starting with a major art theft in Pebble Beach: paintings and drawings, valued at more than $27 million, from the home of a retired Harvard Medical School professor.

The Art Market Monitor thinks the story "contradicts much of what the experts tell us about art thefts, which is that they are primarily crimes of opportunity, not the work of criminal masterminds with shopping lists composed by secretive billionaires." David Nishimura says "it all sounds awfully fishy."

And Derek Fincham wonders: "Why all these [recent] thefts? Is it a product of the economic downturn? Or are thieves hoping to gain some of these lucrative rewards?"

Reinharz Resigning (UPDATED)

Brandeis president Jehuda Reinharz is resigning at the end of the current academic year. The Boston Globe has the story here. The Globe says Reinharz "dismissed suggestions that he is resigning under pressure arising from the [Rose] museum controversy," but adds:

"Controversy over the museum erupted in January, when university officials announced plans to close its art museum and auction parts of its $350 million collection amid heavy investment losses and declining fund-raising. Facing withering criticism from faculty, alumni, and the art and philanthropic worlds, the university quickly pulled back, and Reinharz apologized, saying he 'screwed up.'"

UPDATE: Felix Salmon isn't buying the line that this has nothing to do with the Rose mess: "There’s certainly nothing in Reinharz’s stated reasons for his resignation ('It is now time for me to enter the next chapter of my professional life') which explains what has changed since a year ago, when Reinharz signed [a new] five-year contract."

"The man then pointed a gun at the museum attendant while an accomplice went inside" (UPDATED 3X)

The NYT on a brazen morning theft of a Magritte from a Brussels museum today.

UPDATE: Richard Lacayo: "The Art Loss Register estimates the value of the paining at $1.1 million, though it's effective value right now is zero, because stolen paintings by famous names are almost impossible to sell, as the thieves will soon discover."

UPDATE 2: Once again, Derek Fincham takes us through the options. Loosely translated, they are basically: (1) the Dr. No scenario; (2) the thieves are pretty stupid; (3) a ransom play; and (4) the thieves are smarter than we think.

UPDATE 3: Mark Durney: "This art theft raises the question of whether or not museum gallery officers should be armed."

Back to Cleveland

Lawprof -- and native Clevelander -- Peter Friedman seconds my take on the Cleveland Museum matter:

"The CMA has used the doctrine of deviation in the past in a responsible way, and there’s no reason to think, given the obvious need even its critics acknowledge, that if it convinces the court to allow it, that the decision would be a precedent for museums everywhere suddenly to act irresponsibly. Nor should we make rules that don’t permit courts to look at individual cases and grant relief from restrictions that are no longer serving any useful purpose just because we’re afraid someone may try to get away with fooling a court into letting them act irresponsibly. As Zaretsky points out, those who fear that allowing the CMA to be released from the restrictions imposed on its use of certain funds because circumstances demand it would create a bad precedent are blind to the fact that the rules that allow precisely that have been around and worked well for a long time."

Rose Report Reax

More reaction to the Future of the Rose Committee report.

The NYT's Randy Kennedy pulls out some choice bits, including:

"The committee ... added that [the Rose], 'like many of its fellow university museums, has been oriented too much towards the art world, and not enough towards the academy' and should become more integrated into the university’s educational mission"; and

"As for selling the works, the group wrote that it assumed that whatever decision the university made regarding such sales, there would 'remain a substantial collection of art to be preserved and made available for research, study, and cultivation.'"

Time's Richard Lacayo: "You have to wonder whether the recent upswing in the stock market — if it continues — may make the whole problem go away. Brandeis first announced the museum closing in late January, when the Dow was bobbling around in the 7000s .... This month it's nudging 10,000 again. ... Meanwhile the art market is still not exactly robust, so it remains a poor time to sell. Maybe everybody should just take a deep breath and wait to see whether and by how much the market continues to improve."

And the LAT's Christopher Knight: "The university's administration had long since backtracked on quick implementation of the cataclysmic scheme, approved by trustees last January following a precipitous drop in the school's endowment funds. ... Now, the Brandeis administration's handpicked committee charged with thinking hard about the future of the Rose has essentially put the backtrack in writing. Imagine my surprise."

Kahlo Criminal Investigation

The New York Times reports that Mexican prosecutors are "investigating an assertion that more than 1,000 items attributed to the artist Frida Kahlo ... are forgeries." I mentioned this dispute in this roundup over the summer.

WE DEMAND THAT YOU NOT CLOSE THE MUSEUM YOU ARE NOT CLOSING

The Future of the Rose Committee has issued its final report. The report is here. Boston Globe story here. People seem disappointed that the report takes no position on the potential sale of art, but, in its interim report this spring, the committee made it very clear that it would offer no opinion on that issue.

One of the report's two "central recommendations" is that "the Rose Art Museum remain the Rose Art Museum. It should remain what it is and what it has been since its beginnings: a university art museum open to the public." It recommends that the university "communicate as loudly, clearly, as often, and in as many ways as possible that the Rose is not closing" (emphasis added). It says "the Provost's interim staffing announcement on April 17, 2009 affirmed the University's intention to maintain the Rose as a museum open to the public" and that "other University announcements have reaffirmed this commitment" (my emphases again).

Not everyone's gotten the message, however. As we've seen, there is a lawsuit out there seeking an "Order declaring that Brandeis may not close the Rose Art Museum."

Art of the Steal Deal

North American rights to "The Art of the Steal" have been acquired by Rainbow Media.

"Shouldn't these works be made available to people all over the world who want to see them?"

Writing about The Art of the Steal, the Toronto Star's Martin Knelman puts himself "squarely on the side of the bad guys":

"The audience may enjoy buying into the one-sided account offered in the film, which seduces us by offering a kind of Frank Capra melodrama in which money-grubbing philistines defeat pure-hearted art lovers who wish to honour the memory of Barnes (who died in a car crash in 1951). And so we are presented with a nasty group of Philadelphia power brokers ganging up to snatch the paintings away from the true followers of the Barnes vision in Merion. I might have been seduced by this version of events had I not had a chance to see the Barnes Collection at its original home in Merion last year. My conclusion: In Merion there are so many obstacles that only a tiny portion of the people who would enjoy this experience can do so. A major flaw of the movie is that it doesn't give a fair presentation of the very strong case for the move to downtown Philadelphia – where, incidentally, the conditions of the Merion site will be exactly recreated, so that the paintings will hang just the way Barnes specified. In my view, it's entirely plausible that some of the people involved in orchestrating the move are tainted by the Philly cultural world's history of back-room deals, influence peddling and dirty tricks. Perhaps you could even say that Philadelphia's super-rich, too used to getting their way, trample on anyone who dares to get in their way. Nevertheless, in the case of the Barnes collection, moving it downtown is the only solution that makes sense. The residents of Merion don't want hordes of visitors who bring traffic and parking problems. The upshot: access is so limited that most give up trying to get in. Instead of being savoured only by privileged local residents, teachers and former students of Barnes, shouldn't these works be made available to people all over the world who want to see them?"

Philadelphia Inquirer movie critic Stephen Rea, on the other hand, says the filmmaker makes "a persuasive case" that a "circle of Philadelphia movers and shakers ... orchestrated the Barnes' move from leafy Latchs Lane to new digs just blocks from the Philadelphia Museum of Art" (though he does add that the "film also touches on an inherent problem with the Friends of the Barnes' keep-it-in-Merion movement - namely, that after years of the Barnes' being a jewel-box museum with a severely restrictive admissions policy, its doors were opened in an effort to raise much-needed cash. Tour buses and cars started rolling up and down the street, and the neighbors were not pleased. In some ways, the NIMBY-ism of Merion residents served as a catalyst to decamp the Barnes").

O'Keeffe Appeal

Lee Rosenbaum breaks the news that the O'Keeffe Museum is appealing the Tennessee Court of Appeals decision that it lacked standing to participate in the proceedings involving Fisk University's O'Keeffe Collection.

Hello Cleveland!

Eric Gibson had an interesting piece in the Wall Street Journal yesterday about the Cleveland Museum of Art's request for court permission to use certain acquisition-restricted funds for non-acquisition purposes (namely, to help complete its renovation/expansion).

He's generally sympathetic to the museum's position -- "Clearly the museum has to do something. Nobody could have anticipated the events of a year ago, and [the museum's director] and his colleagues make a compelling case that the museum has to move forward with its expansion plan rather than mark time" -- but he suggests an alternative solution:

"If these restricted funds are, indeed, the museum's only financing option, then treat them like an individual's 401k, a resource that can be tapped only under specific conditions, but can be borrowed from on occasion. In other words, the museum should announce that while it would still use the interest income from these restricted funds for ... its expansion plan, it would agree to repay that money over a set period of time once the building program was complete."

I want to focus on a different point, however. Gibson worries about "the precedent this could set": he says "you only have to look at how museums have played fast and loose with the deaccessioning rules over the past several years despite AAMD's restrictions to worry about what they might do if given an opening to finesse the rules governing restricted endowments" (my emphasis).

But the museum's actions here don't "give" anyone an opening. That opening already exists, and always has. The doctrine of deviation, upon which the museum relies, has been around forever. If the court grants the museum's application, it won't be creating an opening that other museums will then come rushing through, but allowing it to pass through an opening that was always there.

In fact, as I mentioned in an earlier post, an Ohio probate court already found that income from three of the four funds at issue in this case could be used to fund a previous expansion by the museum. So the "opening to finesse the rules" has existed for this very museum with respect to these very funds for more than 50 years. It seems safe to say they haven't exactly been abusing the privilege. Once again, the people who run our nation's museums are not naughty schoolchildren who need to be penned in by simple, black-and-white rules.

Lee Rosenbaum makes a similar point (similar to Gibson's, not to mine). "Cleveland's actions," she says, "unchecked, would set a dangerous precedent that could have a negative impact on future benefactions, just when museums need help the most." But again: Cleveland is not setting a precedent here, it's following one. Given the existence of the doctrine of deviation, no donor -- in any context -- can ever know with certainty that the terms of their gift will never be altered. Yet donations somehow continue to happen.

Consider, in this connection, the four funds involved in the Cleveland case. As I mentioned above, the probate court ruled in 1955 that income from three of those funds could be used to help complete an expansion of the museum. Among the museum trustees who (according to the museum's current board chairman) "encouraged the museum to go forward with its suit to use acquisition funds for the expansion" was one Leonard Hanna.

The donor of the fourth fund at issue in the current case? Leonard Hanna.

Museum Director Charged

Newsday reports: "The former director of Long Island University's Hillwood Museum was arraigned on charges of stealing ancient Egyptian artifacts and lying to an FBI agent Wednesday in U.S. District Court in Central Islip." The Post goes with the headline: "LI's Pharaoh 'Phraudster.'"

"Who Keeps Stealing Bernie Madoff’s Art?"

New York magazine has some ideas.