"The discussion is very similar to the one that has taken place in the United States with respect to President Obama's proposed limitations on the charitable contributions deduction"

The Nonprofit Law Prof Blog on "the tax relief policy announced last month in U.K. that would limit a taxpayer's donations to £50,000 or a quarter of their income, whichever is larger."

"What authority does an artist have over his or her artwork after it leaves the studio?"

Julia Halperin on dealer Marc Jancou's lawsuit against Cady Noland and Sotheby's.

"The heist ... was said to be the largest art theft in Swiss history."

A $110 million Cézanne has been recovered in Serbia.

Studio 360 on Prince-Cariou

Listen here.

"She was, and is, according to her lawyer, 'an honest broker.'"

Daniel Grant:  The Knoedler-Rosales Case: A Dealer's Defense.

"In reality, however, Sobel’s prints have probably gone up in value, not down, as a result of Eggleston’s splashy reintroduction to the contemporary art market."

Felix Salmon on the Eggleston lawsuit:  "At first glance this looks like what it is: one of the silliest lawsuits the art world has seen in a very long time. In order to win, Sobel will need to demonstrate two things, neither of which is true. Firstly, he’ll have to show that the value of his vintage Eggleston prints has been diminished as a result of Eggleston making a new series of much larger digital prints. And secondly, he’ll have to show that Eggleston had no right to make the new prints."

Background here.

"New York collector Jonathan Sobel filed a lawsuit in U.S. District Court against Mr. Eggleston ..."

"... alleging that the artist's recent decision to print and sell oversized versions of some of his famous images in a Christie's auction has diluted the rarity—and therefore the resale value—of the originals."

Kelly Crow has the story in the Wall Street Journal.

Charlotte Burns had a story on the issue in the most recent Art Newspaper.  I'm quoted in that one, wondering about how you prove damages in a case like this.

Art dealer charged with selling phony Picassos

Story here.

Line of the Day

Roberta Smith (in her response to Morley Safer's "60 Minutes" piece on contemporary art):  "These days the art world blogosphere produces so much of its own smug, semi-informed, provincial snark that it is hard for Mr. Safer’s to stand out."

"When Stealing Isn't Stealing"

Rutgers lawprof Stuart Green had an op-ed in the Times last week on the difference between theft and copying.  Kal Raustiala and Chris Sprigman second the motion:  "the 'piracy' of intellectual property is simply not the same sort of zero-sum game that car theft — or theft of any tangible property — is."  We discussed the difference between a copyright and a wallet about a year ago here.

"Leaving stolen artworks to the next generation is a losing proposition."

Four paintings that were stolen from a Madison Avenue gallery in 1988 have been recovered.

Remember when I asked how long it would be before a gallery signed him up? (UPDATED)

Serial forger Mark Landis gets a museum show.  Background here.

UPDATE:  Derek Fincham:  "[T]he attention paid to him now will hopefully prevent future museums from accepting more forgeries."

Aknoether Knoedler Suit

Patricia Cohen has the story in the NYT.  Background (also by Cohen) here.

Brooke Astor Estate Settlement

The Met gets $20 million.  Details here.

"He stole from a vulnerable man in his care."

Ten years for James Biear.

Tell me again

With the sales announced this week of works by Cindy Sherman and Edward Hopper, this bears repeating.

In 2009, Ford Bell, the President of the AAM, wrote a letter to the editor of the New York Times, defending "those in the art world who object to the sale of parts of a museum’s collection to pay operating expenses."  "The essential point of museum collections," he explained, is that "once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations."

You see?  Once "an object" becomes part of a museum collection, "it" -- that object -- is "held in the public trust" for "future generations."

Now, if you really believe that, then these sales -- the Sherman and the Hopper -- cannot be okay.  They just can't.  Those works were being held in the public trust for future generations.

But if it's okay to sell these works, then don't talk to me about the public trust and future generations when some financially desperate museum sells a work or two to keep from having to close it doors.  How can I put this delicately?  I.  Don't.  Want. To.  Hear.  It.

Okay?

The defenders of the standard view on deaccessioning (sales to buy more art, perfectly fine; sales for any other reason, repulsive) need to come up with a better rationale.

"A collector claims in court that a storage company took four Andy Warhol prints from her unit and sold them for alleged back rent ..."

"... though she had prepaid for two months and let it deduct rent automatically from her credit card."

Tell me again about the public trust (a continuing series)

SFMOMA is selling a Hopper at Sotheby's.

That must be one of the paintings the museum was not holding in the public trust, to be accessible to present and future generations.

Tell me again about the public trust (a continuing series)

The Akron Art Museum is selling a Cindy Sherman at Christie's in May.  The museum’s director says "he wanted to capitalize on the jump in prices for Sherman’s work."

Remember:  once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations.

Also, as a result of this sale, potential donors will say, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?

On the other hand, as the museum director says:  "What’s the greater community benefit, keeping the [photograph] and showing it once every five years, or having a few more million dollars generating money in perpetuity ....?"

Good question!  Perhaps that ought to be the question whenever a museum considers a deaccessioning.  What's the greater community benefit?  Works for me.  Somehow I don't think the AAMD and their minions in the Deaccession Police will agree, however.

"The theft of the paintings in 2007 was a troubling example of a violent art theft."

Derek Fincham finds "one more connection between the drug trade and art theft."

New Book on Brandeis and The Rose

I was on a panel on deaccessioning last fall at Hofstra Law School with Francine Koslow Miller, who has a new book out called Cashing in on Culture: Betraying the Trust at the Rose Art Museum.  (As you can guess from the title, we were on different sides of the issue.)  She's doing a book signing and reading at CUE in Chelsea April 19.

"Magritte repeatedly painted variants of his subjects, mostly to satisfy demand in the art market."

At the Freakonomics blog, Daniel Hamermesh notices that the basic laws of supply and demand apply to the art market.

"Kevin Costner in legal dispute with artist over sculptures"

"A lower court ruled in favor of Costner last year. The South Dakota Supreme Court is deciding whether to uphold that ruling."

Suits

Josh Baer reports on two new art-related lawsuits:  "Berry-Hill Galleries and James & David Hill have been sued by arty investor Seymour Alpert of Boca Raton over a Hassam painting they bought jointly in 2001" and "in a sadder case the shuttered Nicholas Robinson Gallery has been sued for $370,000 by artist Sea Hyun Lee."

"The Court finds that the CRRA directly regulates commerce occurring wholly outside the boundaries of California and thus violates the Commerce Clause of the United States Constitution."

That's the money quote from the District Court's "tentative ruling" dismissing the California resale royalty suit, which I've now had an opportunity to read.  "The CRRA applies to applicable sales of fine art where either the sale takes place in California or the seller resides in California.  Thus, by its own terms, the statute directly regulates sales of fine art occurring wholly outside of California."

Adrian Ellis on Supply and Demand in the Arts Sector

Self-recommending, as they say.

"When the new building opens, Mr. Williams said, 'every painting will be within an eighth of an inch of its original location.'" (UPDATED)

The best part of the Barnes move will be listening to the Usual Suspects tell us how that eighth of an inch -- or the improved lighting, or the missing heating vents -- makes all the difference in the world.  The old Barnes was perfect, you know.

UPDATE:  The Art Market Monitor:  Here's Something Else for Barnes Defenders to Freak Out About: "Why they’re not outraged that the art is imprisoned in Barnes’s matrix is another matter entirely."

Breaking News on the California Resale Royalty Suit (UPDATED)

Yesterday was the oral argument on the auction houses' motion to dismiss the California resale royaly class action. I don't see any reports online, but a source close to the case tells me that the Court issued a tentative decision dismissing the case on Commerce Clause grounds. (I'm not surprised.) The final decision should follow in the coming weeks.

UPDATE:  Nicholas O'Donnell:  "Essentially, the issue raised by the defendants is whether California can pass a law concerning art re-sales that could affect commerce outside of the state.  If it does, it could run afoul of what lawyers call the Dormant Commerce Clause to the U.S. Constitution.  There is, in fact, no Dormant Commerce Clause.  Rather, the affirmative grant of authority by the Commerce Clause to the U.S. Congress to regulate interstate commerce is taken, by negative implication, to preclude regulation of interstate commerce by the states."

Barnes Sanctions Ruling

Speaking of the Barnes's tragic five-mile journey, Cheryl Allison of the Main Line Times reports that Judge Ott has "upheld his earlier decision and ordered the Friends of the Barnes Foundation and others, as well as a separate petitioner, to pay a portion of the Barnes Foundation’s legal fees and other costs in fighting the challenge."

The tragedy of the Barnes continues

The Philadelphia Inquirer's Stephan Salisbury:  "Art poised for eager crowds."

In March 2009, "membership totaled 390; today, there are about 15,000 members."  In Merion, annual attendance "never came close to 100,000"; "Barnes officials now expect a shade more than 200,000 visitors in 2012." In 2013, they expect that "admissions should be roughly 350,000."

Isn't it awful?

"Serious mistakes in funding and governance by Barnes when he set up his foundation allowed this to happen."

Adam Meyerson:  When Philanthropy Goes Wrong.

"There's no possible confusion or dilution."

Matthew Yglesias:   "Louis Vuitton's Campaign Against Free Speech."

"It seems that almost the entire art world was caught out."

"He said he may have easily put '1,000 or 2,000' forgeries on the market."

Introducing LootBusters.com

"Our aim is simple:  to help people identify and return stolen / looted / missing antiquities and archaeological material."

"The importance of copyright, and hence the negative consequences of piracy for the creation of new works, are ... often exaggerated."

Richard Posner:

"The standard analysis of the optimal scope of copyright protection holds that it requires a balancing between access (to copyright works) and the incentive to create the works in the first place. But the analysis is incomplete. Access, in a broad sense that allows for copying and not just reading, promotes creativity, because most creative works build on previous works."

"This rhetoric about 'saving' art has to stop."

The Guardian's Jonathan Jones:  "Art does not heal the sick, or feed the poor. It is useless. It is gratifying. It should never be spoken of in the miserable language of need, or seen as a vulnerable object of charitable concern. That is to confuse things and people. Save people. Enjoy art."

The Remorseful Kleptomaniac

Via the Art Market Monitor.

"And when two suspects were arrested in November, they were not politically involved critics of the Pike Plan, but two young artists."

The case of the red goat graffiti.

Art on the Edge of Law

An interesting-sounding exhibition at SOMArts in San Francisco, "touch[ing] on issues of equity—who gets to break the law, when, and why."

Defamation Suit

Josh Baer:  "Dealer Marla Kennedy has sued Richard Silver, the New York Observer, their writer Elise Knutsen and attorney Vindoo Varghese for 'defamation and fraud. Defendant Silver was convicted of preparing fraudulent documents of works by artist Damien Hirst and signing the plaintiff’s name to false art appraisals…the New York Observer published an article which falsely stated that the plaintiff had told defendant Silver that the set of prints was authentic….'"

"It costs a lot of money to defend against a suit, even if one wins."

Eileen Kinsella reports in ARTnews that "several art-authentication boards and artist-endowed foundations have decided that the risks and potential costs associated with determining authenticity are simply too high."

Resale Royalty Reply

The auction houses filed their reply brief this week in the California resale royalty lawsuit.  I remain most interested in the Commerce Clause argument.  The auction houses argue that "Plaintiffs' argument that the [statute] does not regulate conduct 'outside' California simply because it involves a California resident" "borders on the frivolous."  (I wondered about that argument too.)  They say "courts have consistently rejected state laws that project legislation into another state based on nothing more than the involvement of one of the legislating state's residents," that "the Supreme Court and lower courts have uniformly held that where ... a sales transaction occurs wholly outside the regulating state, the Commerce Clause precludes application of the regulating state's laws to that transaction even if a state resident is involved."

Bob Nickas on Prince-Cariou

Part one, part two.

"Lugo said simply, 'I'm sorry,' as a judge sentenced him to one to three years behind bars in New York ..."

". . . though he could be released in six months if he succeeds in a boot camp-style program."

New Issue of Journal of Art Crime

The Fall 2011 issue of ARCA's Journal of Art Crime is out.  I wrote about de Csepel v. Republic Of Hungary, regarding foreign sovereign immunity.

"Under the bill, 60 percent of the funds would go to State Need Grant program."

I've also been meaning to get to this story, which in some ways is similar to the Detroit story I mentioned yesterday.  A Washington State Senator has introduced a bill to "auction off works from the state art collection every two years," with "a goal of raising a minimum of $5 million each time."  Sixty percent of the sales proceeds would be used "to help the state's lowest-income undergraduate students pursue degrees, refine skills, and retrain for new careers" (boo!) and 40 percent would be used "to conserve, repair and acquire art" (yay!).  The Senator says "the State Need Grant program is terribly underfunded.  There were so many students who were turned away this year, who could not get a dime."

As with Detroit, we're not talking about sales by museums ("The state art collection is made up of artwork acquired through Washington's Art in Public Places program. The art is located at state agencies, public schools, colleges and universities and is bought through the state's capital construction budget").  This is not work held in the "public trust" but directly by the public.  The question this Senator is raising is whether the public would prefer to use a portion of those assets (about $1.5 million a year) to help poor kids go to college.  What the Deaccession Police want to do -- what they always want to do -- is make the very question off limits.  Selling any amount of art to fund scholarships is always repulsive, Stalinesque, beyond the pale.  They want a conversation stopper in favor of their preferred policy outcome.

"None of those repercussions would be automatically compelling to ... a mayor forced to choose between thousands of jobs and a Flemish masterpiece."

I've been meaning to mention this column from a couple of weeks ago raising the possibility of some art being sold to help stave off Detroit's bankruptcy (though it's quick to point out that "the city has no plans to sell art").  The interesting angle here is the city owns the works directly; they don't actually belong to the DIA.

That means two things.  First, there's no issue of donor intent:  "Many of the museum's greatest works were purchased directly by the city during the 1920s, when the city ran the museum as a department, paying staff salaries and budgeting for acquisitions. The city used its own dollars, not those of wealthy patrons who might have specified conditions for sale."

And second, the chief argument against selling in cases of this sort -- that the work is actually held "in trust" for the relevant public -- would seem to have little force here.  As a local museum historian says, "it takes the whole notion of public trust and makes it complicated and interesting."  In this case, the work seems not to be held "in trust" for the public; it's held by the public.  If they -- the public -- decide to sell to avoid bankruptcy, what's the argument against it?  "You, the public, cannot sell this work because it belongs to ... the public"?

Failing that, the Deaccession Police can always fall back on their favorite argument:  If you sell, we will sanction you.  Therefore, in order not to be sanctioned, you should not sell.  Can't beat that logic.

"Fairey pleaded guilty to a single misdemeanor count of criminal contempt and faces as much as six months in jail on the charge."

He "admitted that he fabricated documents and lied during the discovery process in copyright litigation with the Associated Press."  Sentencing is July 16.  Background here.

"Any doubt that the thefts (and recoveries) of other versions increased its value?"

Derek Fincham notes that a version of Munch's "The Scream" is heading for sale at Sotheby’s in New York and "officials there estimate it could bring more than $80 million."

"The government is saying we want $35 million in tax but if you sell it to get the money we’ll put you in jail."

Forbes reports on a fascinating valuation dispute in the Ileana Sonnabend estate.

"Few cases in recent years have roiled the art market as much as this mystery of how an obscure art merchant could have discovered an astonishing number of unknown treasures by the titans of Abstract Expressionism."

The NYT's Patricia Cohen has the latest on the Knoedler mess.

"Three years ago, it mistakenly sold this work, valued at more than a million dollars, for $150 plus tax."

The New York Times on Cal Berkeley's "embarrassing loss."

"It is the very definition of as near as possible." (UPDATED)

Fisk has filed its response to the Tennessee Attorney General's request for permission to appeal.  There's a news story here.  I haven't been able to find a link online, but their brief makes a lot of the same points I've been making here.  For example, I think my absolute favorite part is that there is a whole section headed:  "Arkansas Is In The South."  (That's in response to the AG's bizarre argument that the Crystal Bridges deal "unabashedly eradicates Ms. O'Keeffe's requirements that the Collection ... be used for art education in Nashville and the South.")

In my most recent post on the subject, I asked:  "Wasn't it also part of her intent that Fisk own the works?  After all, she could have given them to anyone, but she chose Fisk.  Why do we assume the no sale part of her intent is more important than the Fisk part of her intent?"  The brief says "the simple fact is O'Keeffe intended for the Collection to be displayed at Fisk" and "O'Keeffe's choice of Fisk to display the Collection was part of her intent.  For Fisk to display the Collection, it must exist" (emphasis added).

They also take on the AG's argument that allowing the Crystal Bridges deal to go through "will chill charitable giving."  First, they point out that the AG's "own expert witness testified that museums do not now accept gifts with no-sale conditions on them"; he apparently testified that "there are two trends in art now," one of which is that "we don't promise ... that something will be kept in perpetuity."  And second, they argue that "if there is anything that would chill charitable giving, it is watching an institution that had been hand-picked by a charitable donor ... stripped of its charitable gift ... so that the gift can be handed off to someone of [the Attorney General's] choosing."

UPDATE:  Here's a link to the brief, courtesy of Lee Rosenbaum.

Authenticating Banksys

It's complicated.

"This seems to have been a carefully prepared swindle, we were all taken in."

"The French police force has opened an investigation into the possible forgery of early photographs."

"The idea has never gotten very far, in part due to strong opposition from charities."

The Chronicle of Philanthropy:  "President Obama on Monday proposed to limit the percentage of income that wealthy donors can write off for gifts to charity."

Twombly Tax Trouble

In Italy.  Story here.

"Exit the Deciders"

Barbara Guggenheim on what happens in a post-authentication committee world.

"Mr. Lugo’s lawyer ... has called him 'more like someone who was in the midst of a psychiatric episode' than a calculating art thief."

Wine steward/art thief Mark Lugo plead guilty to a grand larceny charge in New York this week and faces one to three years in prison when he is sentenced later this month.  His lawyer says he could be released in less than a year.  Turbo Paul calls it a slap on the wrist.

"What Reinharz does not regret is the principle that guided [the] decision."

Former Brandeis President Judah Reinharz is still repulsively defending his (failed) plan to sell some of the school's artwork:

"Reinharz was thinking about the economic security of the university’s staff ... [T]he school was facing the decision to lay off workers, ... employees who make less than $50,000 a year.  Imagine arriving home at the end of the day and saying to your spouse, Reinharz explained, 'I was fired today but it was a good day for Brandeis. Not a single painting was sold.'"

Can you believe that?  The repulsive unethicalness of it all.  What are people's livelihoods compared to the "ethical" guidelines of a voluntary organization of museum directors, Mr. Reinharz?  Don't you know there is no higher moral authority?  If they say it's wrong, it's wrong.  Who are you to question them?  I expect he will be duly sanctioned at the next AAMD meeting.

"My client just decided to settle after doing the math and deciding it was simpler to pay."

Artinfo reports on a settlement in a private California resale royalty suit brought by artist Mark Grotjahn against collector Dean Valentine.  Under the settlement, Valentine agrees "to pay Grotjahn the five percent he owed on the three works he resold, as well as some of the artist’s legal fees."  Artinfo notes that "the outcome of the case could affect the current class-action lawsuit that artists have filed against major auction houses Sotheby's [and] Christie's," but it's not clear from the article to what extent the Commerce Clause issue was implicated in the Grotjahn case.

Latest on the California Resale Royalty Class Action

The plaintiffs have filed their response to the auction houses' motion to dismiss.  No online link yet; background about the case here.

The main question in the case, I've been saying, is whether, as applied outside California, the statute violates the Commerce Clause.  In their motion to dismiss, the auction houses argued that "where State A purports to regulate the sale of goods occurring in State B simply because that sale involves a resident of State A, the regulation is invalid."  In attempting to distinguish some authority cited by the auction houses, the plaintiffs here argue that, in those cases, "the only nexus with the state was that the consumer was from the state."  In this case, by contrast, the ("undeniable") nexus is that the sellers "reside in the state" (p. 11).  "[W]hile part of the transaction may occur outside of California, it cannot be said that the transaction occurs wholly outside of California because the seller is necessarily a state resident" (p. 12).  I'm not a constitutional lawyer, but that doesn't sound especially convincing to me.

"Goldsmith says in the court papers that the dealers assured him of the works’ authenticity and told him they had relationships with the sellers and 'personal connections' with the artists."

"But when he had some of the works evaluated by Basquiat’s and Haring’s estates in 2010, he was told that they were forgeries."

Arnet reports that a New York collector is suing a pair of secondary market dealers over the sale of $950,000 worth of work purportedly by Basquiat, Haring and Warhol.

"The court 'exhibited a lack of intrinsic comprehension of art,' she wrote."

Artnet's Rachel Corbett has a report on Janine Gordon's appellate brief.

"It was undisputed at trial that the subject of the condition precedent, i.e., that funds be received from Galerie G, never occurred."

An interesting decision in the Southern District last week in a breach of contract case involving a "back-to-back transaction" for the sale of a Mondrian.  Edelman Arts sued Anne Faggionato's Art International, but the court ruled that a statement in a fax cover sheet enclosing a signed bill of sale that it was "to be held in escrow until the monies from the buyer have been received" created a condition precedent that was never fulfilled.  (Edelman's position was that that was "only a timing provision.")  Courthouse News story here.  Opinion here.

Lawsuit Filed to Block Christo's Latest Project

In Colorado.  "The lawsuit, filed ... by a group of students at the University of Denver’s Sturm College of Law, argues that land managers did not adequately address the long-term effects of the project on wildlife, especially the bighorn sheep that clamber about on the canyon’s cliffs."   They say that, in approving the project, "federal analysts framed their assessment in ways that excused the impact of the thousands of bore-holes, rock-bolts and anchors that will have a cumulative effect, ... not unlike industrial mining." Ann Althouse says that's "a new twist on the old 'what is art?' question. These law students are arguing about the art/mining distinction."

Mo(o)re on Sports Artists and Trademark

As a follow-up to his New York Times piece earlier this week on the Daniel Moore case, Daniel Grant has a post at the Huffington Post on another sports artist, Rick Rush, "who successfully fought a trademark infringement lawsuit [brought by Tiger Woods] over a period of five-and-a-half years."

I linked to the Rush decision in my very first post about the Moore case, now more than five years ago.

Barnes Sanctions Hearing

Cheryl Alllison of the Main Line Times has a report on this morning's sanctions hearing in the Barnes case.  Judge Ott "closed the hearing after about 45 minutes and said he would take the matter under advisement."

Six days a week, 9:30-to-6:00 ...

... of adversely affected experience in an impossible to predict way.  The Barnes sets its opening hours.

As near as possible

The Tennesse Attorney General has gone ahead and filed for permission to appeal the most recent ruling in the Fisk case.  Here's a brief AP story.  Here's the brief.  And here is donor-intent protector Lee Rosenbaum, coming out of retirement to cheer on Super Cooper's forfeiting of his neutrality.

A few comments on the brief:

1.  It contains as clear a statement of Donor Intent Absolutism as you will ever see:  "[T]he fact that the donee may cease to exist if it is not permitted to change the conditions of a gift ... does not authorize a deviation from the conditions of the gift."   Wow, that's cold.  O'Keeffe said no sales and that means no sales.  If that results in Fisk having to shut its doors, so be it.  But wasn't it also part of her intent that Fisk own the works?  After all, she could have given them to anyone, but she chose Fisk.  Why do we assume the no sale part of her intent is more important than the Fisk part of her intent?  It's not as if she said "here is a bunch of artwork, I don't really care who owns them or what happens to them just as long as, please God, they never ever be sold!"  In other words, do we really think that, given the choice, O'Keeffe would prefer to see Fisk close down and the works sent somewhere else than the collection sharing arrangement on the table now, in which Fisk survives and retains a 50% interest in the works?

2.  Speaking of that retained 50% interest (and the related right to exhibit the works for two out of every four years):  the brief bizarrely reads as if the whole collection is being shipped off to Russia or something, never to be seen again.  It claims the deal that's been approved converts the collection "into nothing more than a source of revenue for Fisk."  It argues that, under the cy pres doctrine, any deviation "must be as close as possible to what the donor intended" and this deal "is far removed from Ms. O'Keeffe's intent and purpose."  What was that intent and purpose that we are far removed from?  According to the AG, it's that the work "be used for art education in Nashville and the South."  O'Keeffe's "primary charitable purpose was to enable the public -- in Nashville and the South -- to have the opportunity to study the Collection in order to promote the general study of art."  Seriously?  That's their argument?  That a collection-sharing arrangement that has the work in Nashville at Fisk half the time and at a brand new museum of American art in Arkansas (which may well "become a place of pilgrimage for art lovers from around the world") half the time is far removed from an intent to enable the public -- in Nashville and the South -- to have the access to the collection?  Really?

3.  Finally, a word about this silly notion that allowing this collection-sharing arrangement to go forward will "chill" future charitable donations.  Look, this case isn't inventing a new way to subvert donor intent; it's applying long-standing doctrine (one that existed at the time O'Keeffe made her gift).  As the AG's brief itself notes, the cy pres doctrine was "first codified in New York in 1893."  Every single charitable gift comes with an implicit asterisk to the effect that, when changed circumstances make compliance with the terms of the gift impracticable, a court may modify those terms.  That was true before the Fisk decision, and remains true after.  Reversing the decision in this case would not make that asterisk go away.  No donor can ever be "certain" that the conditions of her gift will be honored for all eternity.  Fisk happens.

"All this raises the prospect that a decision by the Second Circuit could affirm the lower court judgment without shifting the copyright landscape dramatically."

"That is to say, the appeals court could leave for another day how transformative a work needs to be and say simply that these works fail the test because of what Prince said."

Nicholas O'Donnell reads Cariou's appeal brief.

Related post here.

"Is Prince v. Cariou Already Having a Chilling Effect?"

Julia Halperin at ARTINFO.

Barnes Update

The Main Line Times:  "A court hearing is scheduled for Thursday, Feb. 2, at 9:30 a.m.... at which the Friends of the Barnes Foundation and other petitioners will present their objections to sanctions imposed by Montgomery County Orphans’ Court Judge Stanley R. Ott."

More More Moore

Daniel Grant had an update in the New York Times today on the University of Alabama-Daniel Moore lawsuit.  There's an appellate court hearing on Thursday.  This is what the parties are appealing:

"The District Court Judge Robert Propst wrote in his 2009 ruling that there was no reason for buyers of Moore’s prints to assume that the products were licensed and endorsed by the university. Rather, he wrote, 'it is likely that people who buy the Moore paintings do so, at least partially, because of their loyalty to the University of Alabama and its football team.'  The judge, however, did prohibit Moore from selling his images on products of a more commercial nature, like coffee mugs and calendars, without obtaining a license from the university, and his ruling was vague on the number of prints in an edition that the artist could create."

Oh Sister

I don't remember seeing this in the earlier reports on this story, but, according to this article in the Albany Times-Union, not only did that upstate order of nuns lose their fraud claim against the two dealers, there was also a defamation award in the dealers' favor, to the tune of $250,000.

More on Appropriation and Fair Use

Had a chance to read the Cariou appellate brief.  They smartly keep the argument as narrow as possible:  they don't say all appropriation is infringement, just that this particular example -- where "a transformative purpose is negated by the sworn testimony" of the artist (p. 5) -- is.  They say Prince "admi[tted] that he had no message he wanted to convey about Cariou's photographs and only appropriated them because he liked them" (pp. 1-2).

Relatedly, Cat Weaver says "the dueling Cariou v Prince briefs have added new certainty to my theory that transformative use is a singularly unhelpful notion."

And Joy Garnett has organized a panel, "The Case For Appropriation," Feb. 16 at SVA.

Art Dealer Faces Fraud Charges

The NYT's Patricia Cohen has the details.

Overtime

The University of Alabama's lawsuit against artist Daniel Moore is still going!  Oral argument on the appeal scheduled for Feb. 2.  Jon Solomon of The Birmingham News says it's "embarrassing" and a "PR nightmare" for the university.

Prince-Cariou News

Patrick Cariou's lawyers filed their appellate brief yesterday.  Haven't had a chance to read it myself, but in the meantime, here are reports from ARTINFO's Julia Halperin and Artnet's Rachel Corbett and commentary from Peter Friedman.

"The new lawsuit seeks some $14 million from Mr. Gagosian for various alleged misdeeds in the sale of Roy Lichtenstein’s Girl in Mirror."

Dan Duray has the details on a new lawsuit involving Gagosian Gallery and the Cowles family.  He points out that, were it not for this suit, "news might not have broken last week that the lawsuit between [Gagosian] and collector Robert Wylde had been settled for $4.4 million."  For background on that earlier suit, see here.

"While it may sound like a good idea in principle, the law is misguided for several reasons."

In the NYLJ, Judith Prowda, the Chair of the NYSBA Entertainment, Arts and Sports Law Section, argues against the proposed resale royalty bill.  She says "empirical studies have shown that the resale royalty right is ineffective and the benefits highly skewed" and that "artists may in fact be worse off in the long term with the resale royalty, as dealers may have less money to promote their careers in the primary (first sale) market and instead shift their business away from royalty liable art in the secondary (resale) market."  She concludes:  "While it is hard to argue with the concept of fairness for artists, in reality, the law does more harm than good to the majority of artists."

"Experts have been persuaded to opine that the affair is 'Australia's largest-ever art scandal' and 'threatens to destroy trust in the local industry for years.'"

An Australian art dealer has been arrested and charged with "87 offences relating to his investment art fraud scheme."

"It's not as if we're selling our opinions in competition with a photographer."

"Using the photo in a judicial opinion couldn't conceivably be hurting the copyright holder."

Judge Posner helps himself to some fair use.

"Word of the disbanding comes amid several major forgery scandals that have entangled a number of art authentication boards in messy litigation" (UPDATED)

The Basquiat Authentication Committee is disbanding.

UPDATE:  The Art Market Monitor:  "The committee itself may turn out to be less important than Enrico Navarra’s catalogue raisonné."

Update on the California Resale Royalty Class Action

The auction houses have filed a (joint) motion to dismiss.  You can read the motion here; background about the case here.

The main argument is the Commerce Clause argument:  as a "state law[] which seek[s] to regulate economic activity outside the State," the statute is "plainly unconstitutional."  "[W]here State A purports to regulate the sale of goods occurring in State B simply because that sale involves a resident of State A, the regulation is invalid."

They also make the back-up arguments that the statute violates the Takings Clause -- "it confiscates the private property of select individuals and transfers that property to other private individuals" -- and is preempted by the Copyright Act (because it conflicts with its "first sale" provision, which "entitles a lawful owner of a copyrighted work to resell that work without restriction").

Along the way, they make the point that the statute is not a tax:  "The resale royalty is neither exacted from the general public nor transferred to any government agency."

"Defying the economic gloom"

The Mei Moses art index was up 11% in 2011, "beat[ing] the total return of the S&P 500 index of US equities by about 9 percentage points."

Bananas

Courthouse News Service:  Velvet Underground Wants to Free Warhol's Banana.

"A great art project indeed!"

Sergio Muñoz Sarmiento:  Is This Copyright Infringement of an Artist's Painting?

"Hopefully, this is one step towards the day when we can live out our faith without fear of persecution."

"The Church of Kopimism, whose principal tenent is the right to file-share, has been formally recognized as a religious organization in Sweden."

"Knoedler forgery scandal grows"

The Art Newspaper's Charlotte Burns reports.

Background here.

Affirmed

The Ninth Circuit has upheld Halsey Minor's judgment against Christie's.  The decision is here.  Background here. 

Nun Too Happy

An upstate group of nuns have lost their fraud case against a dealer arising out of a Bouguereau they sold to him.  Background here.  He bought the painting from them for $450,000 and then resold it for $2.5 million. He "denied any conspiracy to defraud the nuns, countering that they are merely experiencing seller's remorse. 'Sometimes you just get lucky,' he said."

Jeopardy

The Tennessean had a story over the weekend with the rather dramatic headline: "Fisk art deal in jeopardy."  What that turns out to mean is just that the Tennessee Attorney General may decide to appeal the latest ruling approving the deal.  It's not in any more jeopardy than it was the day that ruling came down or any day since.  The deadline to appeal is Jan. 28.

We also hear from "the larger art museum community," represented in this instance by the director of the Georgia Museum of Art at the University of Georgia, who informs us that "the case could change the boundaries for selling off artworks."  The AAMD and AAM say sales proceeds should be used "solely to acquire more art or maintain existing collections," but, if this decision is not put in jeopardy and the Fisk-Crystal Bridges collection-sharing arrangement is allowed to happen, those boundaries could change.  But why would that be so?  Isn't it more likely that the boundaries (i.e., the AAMD and AAM policies) will stay right where they are, but this deal will be an "exception" to (or, if you prefer, "violation" of) those boundaries?

Athens Art Theft

Paintings by Picasso and Mondrian were stolen from the National Art Gallery in Athens today.  Art Theft Central's Mark Durney says Greece's Culture and Tourism Ministry "has seen its budget cut by 35% since 2009" and wonders if "perhaps, the new austerity measures and workers’ reactions to the budget cuts contributed to the ineffectiveness of the museum’s security system and practices."

"Mr. Lucky is not, in fact, so lucky."

The Gallerist's Michael H. Miller reports that a New Orleans man named Robert E. Lucky Jr. has been sentenced to two years in prison for selling fake Clementine Hunters.

"Virtually every traditional media company in the United States loudly and enthusiastically supports SOPA, but that doesn’t mean it’s good for the rest of us."

I haven't been linking to all the discussion of the Stop Online Piracy Act (SOPA), but David Carr had a good overview in the Times last week, and Martha Lufkin has a piece on it in The Art Newspaper.  From the latter, it seems that ARS supports the bill, while VAGA is more non-commital.

Win Win

Carol Vogel reminds us today that "for more than a decade museums have been joining forces to buy" art. It’s "an arrangement that works to everyone’s advantage," a way "to defray costs while allowing a wider public to see significant work."

Exactly.  That's why everyone's so excited about the Fisk-Crystal Bridges sharing arrangement.  Right?

"I really don't want to see anyone get into trouble, but I'd like to get my painting back."

NY1:  LES Gallery Offers Reward For Return of Stolen Artwork.

"There is no road map for artists whose subject matter includes existing images."

Daniel Grant:  Will the Legal Status of Appropriation Art Be Decided This Year?

Test Pilot

The new year begins with this back-and-forth between Judith Dobrzynski and Lee Rosenbaum over Boston's newly-revised "payment in lieu of taxes" (PILOT) program.  For background about the program, start with New England School of Law Professor Eric Lustig, here and here.  Inside Higher Ed has a good piece on it here, and sharp criticism from Tim Delaney, President of National Council of Nonprofits, here ("To enforce its legally unenforceable program, Boston has threatened to paint a Scarlet letter of shame on every nonprofit that does not comply with the city's demands for payments. Such coercion to obtain what the Commonwealth's law prohibits is outrageous and threatens everyone; who's next, when Boston -- or any government -- wants something the law prohibits?") and Taylor Armeding here ("These 'requests' are a bit like Don Corleone making someone an offer he can’t refuse. If a standard guilt trip doesn’t work, the university, the medical center, the museum, the charity are told in not-so-veiled terms that if they don’t pay up, good luck the next time they come before a city board seeking a permit.  It is extortion, all prettied up as fairness and good citizenship.").