Thursday, May 29, 2014
Wednesday, May 28, 2014
"The creditors never had any rights to the Museum Art Collection or any expectation that such charitable property would be available to satisfy their debts."
"This is the ‘grubby’ reality to which the Financial Creditors must yield."
The Detroit bankruptcy proceeding marches on. I've always felt the "no reliance" argument has been the strongest one in favor of keeping the art off limits to creditors.
The Detroit bankruptcy proceeding marches on. I've always felt the "no reliance" argument has been the strongest one in favor of keeping the art off limits to creditors.
Thursday, May 22, 2014
Has there been a Gardner theft sighting?
The headlines today make it seem so. But Nicholas O'Donnell says "read carefully, ... the story is nothing new at all, just a retelling of last year's 'news' released around the anniversary of the theft and a raft of conjecture."
Thursday, May 15, 2014
The DIA dispute is back in court today (UPDATED)
As usual, Mark Stryker is all over it.
UPDATE: Stryker tweets, from inside the courtroom: "Breaking: Judge Rhodes denies creditors' motion to get DIA documents and remove art from walls at DIA."
UPDATE: Stryker tweets, from inside the courtroom: "Breaking: Judge Rhodes denies creditors' motion to get DIA documents and remove art from walls at DIA."
Monday, May 12, 2014
Is Detroit's art-for-pensions deal illegal? (UPDATED)
UPenn bankruptcy professor David Skeel says the answer is yes.
Meanwhile, one observer says "the city will probably end up back in Chapter 9 because they aren't fixing anything."
UPDATE: Mark Stryker wrote about this in the Detroit Free Press last month. Bottom line, as he put it on Twitter this morning, is that "other bankruptcy experts disagree w/ Skeel" (though he added: "That said, Skeel's view will be heart of bond insurers courtroom arguments. Big questions for Judge Rhodes").
Meanwhile, one observer says "the city will probably end up back in Chapter 9 because they aren't fixing anything."
UPDATE: Mark Stryker wrote about this in the Detroit Free Press last month. Bottom line, as he put it on Twitter this morning, is that "other bankruptcy experts disagree w/ Skeel" (though he added: "That said, Skeel's view will be heart of bond insurers courtroom arguments. Big questions for Judge Rhodes").
Thursday, May 08, 2014
A donor intent law school exam
The NYT: Fight Over Guggenheim's Legacy Roils her Palazzo.
And how did the French get involved? What's this doing in a Paris court?
And how did the French get involved? What's this doing in a Paris court?
"The Sotheby's decision upholding activist pills is a huge win for good corporate governance"
Says Professor Bainbridge, though he adds that "Sotheby's then caved by putting Loeb and a couple of his cronies on their board" and recommends, "for good discussions of why Sotheby's caved," Alison Frankel here and Steven Davidoff here.
He also points to another key practical lesson of the case: the importance of email hygiene.
He also points to another key practical lesson of the case: the importance of email hygiene.
Monday, May 05, 2014
Loeb-Sotheby's Settlement (UPDATED)
Details at the NYT here.
UPDATE: Who won? The Times declares it a "clear win" for Loeb. The Art Market Monitor disagrees: "[I]t is hard to credit [that] conclusion since he was offered a board seat and has basically wound up with … a board seat. ... The compromise blunts his three seats with an additional two giving Loeb little more in the way of power. Yes, Loeb will be allowed to increase his stake from under 10% to 15% but without a clear plan to increase revenues substantially, that increased stake may only be a gift to present shareholders who sell to him in the coming weeks."
UPDATE: Who won? The Times declares it a "clear win" for Loeb. The Art Market Monitor disagrees: "[I]t is hard to credit [that] conclusion since he was offered a board seat and has basically wound up with … a board seat. ... The compromise blunts his three seats with an additional two giving Loeb little more in the way of power. Yes, Loeb will be allowed to increase his stake from under 10% to 15% but without a clear plan to increase revenues substantially, that increased stake may only be a gift to present shareholders who sell to him in the coming weeks."
"One winner from inequality — artists" (UPDATED)
Matthew Yglesias at Vox.
UPDATE: A different take from Henry Farrell: "I would furthermore speculate (and this is speculation, but, I think, grounded speculation) that these tendencies towards skew are going to be substantially accentuated by increased wealth inequality, as very rich people compete over a tiny pool of premier artistic prestige goods, dramatically driving up the prices for this pool and this pool alone, while leaving the middle and the tail of the distribution to languish and stagnate."
UPDATE: A different take from Henry Farrell: "I would furthermore speculate (and this is speculation, but, I think, grounded speculation) that these tendencies towards skew are going to be substantially accentuated by increased wealth inequality, as very rich people compete over a tiny pool of premier artistic prestige goods, dramatically driving up the prices for this pool and this pool alone, while leaving the middle and the tail of the distribution to languish and stagnate."
Wednesday, April 30, 2014
Tuesday, April 29, 2014
Monday, April 28, 2014
Is inequality good for art?
From Tyler Cowen's review of Piketty:
"Piketty fears the stasis and sluggishness of the rentier, but what might appear to be static blocks of wealth have done a great deal to boost dynamic productivity. Piketty’s own book was published by the Belknap Press imprint of Harvard University Press, which received its initial funding in the form of a 1949 bequest from Waldron Phoenix Belknap, Jr., an architect and art historian who inherited a good deal of money from his father, a vice president of Bankers Trust. (The imprint’s funds were later supplemented by a grant from Belknap’s mother.) And consider Piketty’s native France, where the scores of artists who relied on bequests or family support to further their careers included painters such as Corot, Delacroix, Courbet, Manet, Degas, Cézanne, Monet, and Toulouse-Lautrec and writers such as Baudelaire, Flaubert, Verlaine, and Proust, among others."
"Piketty fears the stasis and sluggishness of the rentier, but what might appear to be static blocks of wealth have done a great deal to boost dynamic productivity. Piketty’s own book was published by the Belknap Press imprint of Harvard University Press, which received its initial funding in the form of a 1949 bequest from Waldron Phoenix Belknap, Jr., an architect and art historian who inherited a good deal of money from his father, a vice president of Bankers Trust. (The imprint’s funds were later supplemented by a grant from Belknap’s mother.) And consider Piketty’s native France, where the scores of artists who relied on bequests or family support to further their careers included painters such as Corot, Delacroix, Courbet, Manet, Degas, Cézanne, Monet, and Toulouse-Lautrec and writers such as Baudelaire, Flaubert, Verlaine, and Proust, among others."
Sunday, April 27, 2014
Friday, April 25, 2014
An International Perspective
My friend Massimo Sterpi has co-edited a new title, The Art Collecting Legal Handbook. Check it out.
"Protecting collectors, it's not our job. I don't think putting the burden of that due diligence on an artist estate, especially in the absence of sufficient legal protections, is appropriate."
That's Michael Straus, chairman of the Warhol foundation, making good sense in this Wall Street Journal piece on "the deep freeze in art authentication."
Thursday, April 24, 2014
Tuesday, April 22, 2014
"The question now is whether the old cases upholding the poison pill will still apply in the case of activism."
"This is the fundamental question in the Sotheby’s case."
Good piece from Steven Davidoff in the Times a few days ago on the broader significance of the Daniel Loeb lawsuit.
Good piece from Steven Davidoff in the Times a few days ago on the broader significance of the Daniel Loeb lawsuit.
Monday, April 21, 2014
Another arrest in the Knoedler case
Spanish art dealer Jose Carlos Bergantiños Diaz, Glafira Rosales's boyfriend. Rosales plead guilty in September and "has been cooperating with the federal authorities."
"A Bankruptcy Court meeting of creditors is set for April 29 in Los Angeles."
The LA Times has some details regarding the Perry Rubenstein Gallery bankruptcy filing.
Wednesday, April 16, 2014
"The artist is outside the state, the buyer's outside state, the property's outside the state."
It's always risky to read too much into oral arguments, but things did not seem to go well for the plaintiffs in the Ninth Circuit in the California resale royalty case. Courthouse News Service has a summary here. You can listen for yourself here.
Tuesday, April 15, 2014
The AAMD might be forced -- with regret -- to sanction the hell out of the Delaware Art Museum
What choice do they have, really?
It's not as if it was "a difficult -- indeed, agonizing -- decision" on the part of the museum, a problem that "does not admit of easy solutions." Where'd you ever get that idea?
It's not as if it was "a difficult -- indeed, agonizing -- decision" on the part of the museum, a problem that "does not admit of easy solutions." Where'd you ever get that idea?
Monday, April 14, 2014
"The tax strategy is 100 percent legal, experts say, as long as all stages of the museum transfer are handled correctly."
There was a terrific piece by Graham Bowley and Patricia Cohen in the Times over the weekend on a "lucrative, little-known" maneuver for avoiding state use taxes on art.
Doesn't work in New York -- as the story notes, "collectors who live in states that don’t recognize a first-use exemption are out of luck. New York, for example, typically imposes a use tax — 8.875 percent in Manhattan — on art brought into the state by a resident, even if it is first publicly displayed elsewhere" -- but well worth reading.
Doesn't work in New York -- as the story notes, "collectors who live in states that don’t recognize a first-use exemption are out of luck. New York, for example, typically imposes a use tax — 8.875 percent in Manhattan — on art brought into the state by a resident, even if it is first publicly displayed elsewhere" -- but well worth reading.
Wednesday, April 09, 2014
"According to court documents filed Wednesday, investors are willing to pay or make loans of close to $2 billion for the masterpieces inside the Detroit Institute of Arts" (UPDATED)
Emergency manager Kevyn Orr says it isn't going to happen -- he says "we have no intention of selling art" and also correctly points out that "in a Chapter 9 [bankruptcy] you cannot compel the city to sell anything, not a park, not a zoo, not the DIA."
But here's a question: at what point would such an offer become not disgusting? Ten billion? Twenty billion? Is there literally no amount of money where we would have to say "you know what, the money could do more for the city than the art"?
UPDATE: Michael Rushton tweets: "Detroit's violence, failed schools, decrepit public services, poverty: disgusting. Arts 'advocates' need perspective."
But here's a question: at what point would such an offer become not disgusting? Ten billion? Twenty billion? Is there literally no amount of money where we would have to say "you know what, the money could do more for the city than the art"?
UPDATE: Michael Rushton tweets: "Detroit's violence, failed schools, decrepit public services, poverty: disgusting. Arts 'advocates' need perspective."
Monday, April 07, 2014
Shades of grey (UPDATED)
Let me recommend this really good piece on the situation in Delaware, by Timothy Rub of the AAMD.
Instead of the usual approach of this-is-an-easy-question-and-anyone-who-disagrees-is-a-repulsive-Stalinist-philistine-hater-of-art, he begins be acknowledging that "this was a difficult -- indeed, agonizing -- decision."
That alone seems to me to be a huge concession from the usual AAMD position on these things.
He goes on: "Was it, however, the right decision?" Some, he says, "accepting the argument that the only alternative was to close the Museum's doors, would agree that it was." Others would "emphatically" disagree.
Again, a rare concession that there are two sides to this debate.
He asks whether there were "other options that the [Museum] might have explored?" He says the answer is yes, though doesn't bother to "map these out" -- though the important point, to my mind, is that in doing so he concedes that "such problems do not admit of easy solutions."
He closes by saying that "whatever your opinion on this subject may be, I hope that you'll agree that it is worthy of a spirited public debate." (I do! I do!)
This seems to me exactly how these things should be discussed:
First, no one gets to shut down the debate by appealing to some magical "ethics" rules.
The question is always: was it the right decision in the circumstances?
What will happen if the work isn't sold?
Have all other options been sufficiently explored?
Is it, all things considered, the right thing to do?
It's very similar to how people think about deaccessioning in cases where the sales proceeds are used to buy more art. Sometimes it seems to make a lot of sense. Sometimes it doesn't. But the important thing is that each case is considered on its own merits. There is no bright line rule. Nobody gets sanctioned.
If that's the AAMD's new approach to the problem, sign me up.
UPDATE: Here is a timely overview of deaccessioning issues from Charles and Tom Danziger.
Instead of the usual approach of this-is-an-easy-question-and-anyone-who-disagrees-is-a-repulsive-Stalinist-philistine-hater-of-art, he begins be acknowledging that "this was a difficult -- indeed, agonizing -- decision."
That alone seems to me to be a huge concession from the usual AAMD position on these things.
He goes on: "Was it, however, the right decision?" Some, he says, "accepting the argument that the only alternative was to close the Museum's doors, would agree that it was." Others would "emphatically" disagree.
Again, a rare concession that there are two sides to this debate.
He asks whether there were "other options that the [Museum] might have explored?" He says the answer is yes, though doesn't bother to "map these out" -- though the important point, to my mind, is that in doing so he concedes that "such problems do not admit of easy solutions."
He closes by saying that "whatever your opinion on this subject may be, I hope that you'll agree that it is worthy of a spirited public debate." (I do! I do!)
This seems to me exactly how these things should be discussed:
First, no one gets to shut down the debate by appealing to some magical "ethics" rules.
The question is always: was it the right decision in the circumstances?
What will happen if the work isn't sold?
Have all other options been sufficiently explored?
Is it, all things considered, the right thing to do?
It's very similar to how people think about deaccessioning in cases where the sales proceeds are used to buy more art. Sometimes it seems to make a lot of sense. Sometimes it doesn't. But the important thing is that each case is considered on its own merits. There is no bright line rule. Nobody gets sanctioned.
If that's the AAMD's new approach to the problem, sign me up.
UPDATE: Here is a timely overview of deaccessioning issues from Charles and Tom Danziger.
Saturday, April 05, 2014
"A recent decision in New York’s Supreme Court could cause chaos in art forgery cases."
I'm quoted in this Art Newspaper story on the (weird) authentication decision mentioned earlier here.
Friday, April 04, 2014
Thursday, April 03, 2014
"If a museum’s collection is deemed fungible, why should private donors or government agencies fund its operations?"
LA Times art critic Christopher Knight reacts to the shocking news that the Met sold off more than 3,000 objects last year.
Three thousand little units of fungibility. No wonder everyone is so upset with them!
I say we form a human circle around the building and, in one voice, just say no.
Down with fungibility!
Three thousand little units of fungibility. No wonder everyone is so upset with them!
I say we form a human circle around the building and, in one voice, just say no.
Down with fungibility!
Wednesday, April 02, 2014
Detroit Cuts Pensions Further
New York Times story here.
I checked with the spokesperson for the Deaccession Police, who issued the following statement: Not. Our. Problem.
I checked with the spokesperson for the Deaccession Police, who issued the following statement: Not. Our. Problem.
Art law in the galleries
ARCA's Catherine Sezgin on an art-law related show at the D'Amour Museum in Massachusetts.
Tuesday, April 01, 2014
Tell me again about the public trust (it's a fire sale at the Metropolitan Museum of Art edition)
Speaking of the repulsive practice of deaccessioning artworks, the NY Post notices that the Met sold more than 3,000 objects last year alone.
That's 3,000 objects that, having fallen under the aegis of a museum, were held in the public trust, to be accessible to present and future generations.
I'm surprised it hasn't led to the dissolution of the museum.
The most interesting thing about the Post article is that we often hear from the Deaccession Police that one reason museums can't sell art is that it upsets donors, who will then be reluctant to give in the future (as I often point out, they never explain why donors don't mind when their works are sold when the proceeds are used to buy more art ... but leave that be for now). Well, the Post tracked down the great-grandson of a donor of one of the pieces the Met sold ... and he was all for it! "I would rather think of this being in a private collection or another museum where people can enjoy it," he said, "than in the basement of the Met where no one is going to see it." Imagine that.
That's 3,000 objects that, having fallen under the aegis of a museum, were held in the public trust, to be accessible to present and future generations.
I'm surprised it hasn't led to the dissolution of the museum.
The most interesting thing about the Post article is that we often hear from the Deaccession Police that one reason museums can't sell art is that it upsets donors, who will then be reluctant to give in the future (as I often point out, they never explain why donors don't mind when their works are sold when the proceeds are used to buy more art ... but leave that be for now). Well, the Post tracked down the great-grandson of a donor of one of the pieces the Met sold ... and he was all for it! "I would rather think of this being in a private collection or another museum where people can enjoy it," he said, "than in the basement of the Met where no one is going to see it." Imagine that.
"Yes, communities benefit from famous paintings, but they also benefit from safer roads and better schools."
Cornell economist Robert H. Frank had a piece in Sunday's New York Times on Detroit and its art collection.
He urges us to look at both costs and benefits. Take Pieter Bruegel the Elder's "The Wedding Dance," which could be worth $200 million by itself. At a 6 percent interest rate (after rates "return to normal levels"), "the foregone interest on that amount would be approximately $12 million a year." If the museum is open 2,000 hours a year, "the costs of keeping the painting on display would be more than $6,000 an hour." If five people view it per hour, that's $1,200 an hour per visitor. He guesses that "most taxpayers [would] think the same money could deliver much greater value if spent in other ways."
Michael Rushton, Director of Indiana University's Arts Administration Programs, says "those firmly against DIA selling art need to be able to respond to the arguments Robert Frank makes" -- but of course they'll do no such thing. To the extent they even acknowledge the existence of his arguments (unlikely), they're more apt to call him names (repulsive Stalinist trickle down philistine) and try to figure out a way to sanction him.
He urges us to look at both costs and benefits. Take Pieter Bruegel the Elder's "The Wedding Dance," which could be worth $200 million by itself. At a 6 percent interest rate (after rates "return to normal levels"), "the foregone interest on that amount would be approximately $12 million a year." If the museum is open 2,000 hours a year, "the costs of keeping the painting on display would be more than $6,000 an hour." If five people view it per hour, that's $1,200 an hour per visitor. He guesses that "most taxpayers [would] think the same money could deliver much greater value if spent in other ways."
Michael Rushton, Director of Indiana University's Arts Administration Programs, says "those firmly against DIA selling art need to be able to respond to the arguments Robert Frank makes" -- but of course they'll do no such thing. To the extent they even acknowledge the existence of his arguments (unlikely), they're more apt to call him names (repulsive Stalinist trickle down philistine) and try to figure out a way to sanction him.
"Proponents of the bill believe that it is necessary to incentivize experts to continue to authenticate works in light of the chilling effect of recent litigation."
Frankfurt Kurnit summarizes the proposed NY legislation protecting "authenticators," mentioned earlier here.
Via Sergio Munoz Sarmiento, who wonders if the bill "give[s] authenticators too much power?"
Via Sergio Munoz Sarmiento, who wonders if the bill "give[s] authenticators too much power?"
"But Mr. Parsons said Mr. Loeb ... faces 'an uphill battle' to show the pill actually puts him at a disadvantage."
The Wall Street Journal has the latest on Daniel Loeb's poison pill lawsuit against Sotheby's.
Should "assisting the truly needy be the central focus of the charitable contribution deduction"?
The Nonprofit Law Prof Blog thinks so.
Thursday, March 27, 2014
How to be ethical in the art world
In two easy steps.
Step one: when the Pennsylvania Academy of Fine Arts sells a $40 million Hopper in order to buy a bunch of contemporary art, say nothing. Relax. No reason to be so touchy.
Step two: when the Delaware Art Museum announces plans to sell $30 million worth of art in order to keep from closing, get out the pitchforks. Act as outraged as possible. Rend garments. And most of all: PUNISH THEM.
A little thing called ethics, my friends. Get with the program.
Step one: when the Pennsylvania Academy of Fine Arts sells a $40 million Hopper in order to buy a bunch of contemporary art, say nothing. Relax. No reason to be so touchy.
Step two: when the Delaware Art Museum announces plans to sell $30 million worth of art in order to keep from closing, get out the pitchforks. Act as outraged as possible. Rend garments. And most of all: PUNISH THEM.
A little thing called ethics, my friends. Get with the program.
Wednesday, March 26, 2014
Release the hounds!
Randy Kennedy in the NYT: Delaware Art Museum Will Sell Works to Pay Off Debt.
How dare they!? Repulsive Stalinesque scoundrels. Have they no decency? Why can't they just fail quietly and go home?
I assume they will be sanctioned and sanctioned good. This cannot stand.
How dare they!? Repulsive Stalinesque scoundrels. Have they no decency? Why can't they just fail quietly and go home?
I assume they will be sanctioned and sanctioned good. This cannot stand.
Thursday, March 20, 2014
Prince-Cariou Settlement
As anyone who is interested enough in art law to be reading this blog must know by now, the long-running Prince-Cariou fair use lawsuit has settled. Terms were not disclosed. Here is Randy Kennedy. Here is Brian Boucher. Here is Julia Halperin.
My take on this is that, after all the drama, we still have no idea what's fair use and what isn't and that's just a fact.
My take on this is that, after all the drama, we still have no idea what's fair use and what isn't and that's just a fact.
Friday, March 14, 2014
Thursday, March 13, 2014
Monday, March 10, 2014
Hand-wringers gonna wring
The Art Market Monitor takes on the latest art world "ethical" controversy: works being loaned to museums ... and then later sold. Says the Monitor:
"Why this trend should be considered a bad thing... is not clear. The unstated premise seems to be that art gaining value because it has been recognized by curators is a bad thing. But isn’t that what the market needs to see more of? ... [W]ould it be a terrible thing for the public and the art historical establishment to have collectors eager to make loans, even becoming solicitous of curators?"
"Why this trend should be considered a bad thing... is not clear. The unstated premise seems to be that art gaining value because it has been recognized by curators is a bad thing. But isn’t that what the market needs to see more of? ... [W]ould it be a terrible thing for the public and the art historical establishment to have collectors eager to make loans, even becoming solicitous of curators?"
"Formally severing Detroit’s ownership of the DIA would be at once revolutionary and conservative."
Mark Stryker looks at the implications of the potential "grand bargain" in Detroit.
Thursday, March 06, 2014
Tuesday, March 04, 2014
Wait, what?
The NYT's Patricia Cohen reports on a new lawsuit by the Basquiat estate against Christie's. Apparently they complain that Christie's "did not ask the estate's opinion on the authenticity" of certain works it's offering for sale, though, as Cohen drily notes, "the estate's authentication committee was disbanded in 2012."
Saturday, March 01, 2014
"While Mr. Ai has defaced works to make new art, one difference is that, unlike Mr. Caminero, he owned the art before he ruined it."
The New York Times has the latest on the artist "who stunned the art world by smashing a vase by the Chinese Artist Ai Weiwei at the Perez Art Museum in Miami."
Wednesday, February 26, 2014
New Resale Royalty Legislation Introduced
Patricia Cohen has the story in the Times. Lee Rosenbaum has a close analysis here, including the following:
"The amount of the royalty payable on a resale would be capped at $35,000. This is a major collector-friendly change: There was no cap in [the] previous bill."
"The amount of the royalty payable on a resale would be capped at $35,000. This is a major collector-friendly change: There was no cap in [the] previous bill."
Monday, February 24, 2014
"The courts have taken an approach to fair use that we do not believe was originally intended."
The NYT's Patricia Cohen had an interesting piece over the weekend on efforts by photographers' groups to push back against expansive interpretations of fair use. Alfred Steiner thought it misled by failing to "emphasize [the] crucial difference between one copy (artwork) and many copies (movie)." For more on that distinction, see here.
60 Minutes on art forger Wolfgang Beltracchi
You can watch it here. Deborah Solomon and Jillian Steinhauer were unimpressed.
Derek Fincham says "it was a reminder of how little safeguards protect genuine works of art from forgeries." I would say it's a reminder of how little difference there sometimes is between genuine works of art and forgeries.
Derek Fincham says "it was a reminder of how little safeguards protect genuine works of art from forgeries." I would say it's a reminder of how little difference there sometimes is between genuine works of art and forgeries.
Saturday, February 22, 2014
"Bateman said Randolph College’s Maier Museum of Art is not a 'museum' but part of a 'non-profit institution that owns art.'"
"As a result it operates not according to the rules and regulations that govern museums but the fiduciary responsibilities of an institution of higher education, said Bateman."
Bateman is Randolph College's President, and I think he's clearly right. For those interested in this issue of university-owned artworks -- I mean really interested in grappling with the complexities rather than doing the usual Ohmigod Repulsive routine -- I would start with the law review articles mentioned here and here.
It's also interesting to compare Randolph's approach to that taken by the Brandeis administration during the Rose debacle. Brandeis started out by conceding too much rhetorical ground to the Deaccession Police. They thought if we have a "museum," we are bound by their rules. So they came up with what turned out to be a disastrous plan to "close" the Rose. But that put them on the defensive right from the start. Randolph, on the other hand, made the decision to stand up to the deaccession bullies, to refuse to accept their way of framing the debate. As Bateman says in the article linked above: "They [the AAMD and the other deaccession bullies] have a single position and they don’t want anyone to think about these issues in any way other than the way they want you to think about it." I think he just summed up about five years of my blogging on this subject in one sentence.
Bateman is Randolph College's President, and I think he's clearly right. For those interested in this issue of university-owned artworks -- I mean really interested in grappling with the complexities rather than doing the usual Ohmigod Repulsive routine -- I would start with the law review articles mentioned here and here.
It's also interesting to compare Randolph's approach to that taken by the Brandeis administration during the Rose debacle. Brandeis started out by conceding too much rhetorical ground to the Deaccession Police. They thought if we have a "museum," we are bound by their rules. So they came up with what turned out to be a disastrous plan to "close" the Rose. But that put them on the defensive right from the start. Randolph, on the other hand, made the decision to stand up to the deaccession bullies, to refuse to accept their way of framing the debate. As Bateman says in the article linked above: "They [the AAMD and the other deaccession bullies] have a single position and they don’t want anyone to think about these issues in any way other than the way they want you to think about it." I think he just summed up about five years of my blogging on this subject in one sentence.
Friday, February 21, 2014
Their sword's grown old and rusty
The big news this week is that the Corcoran Gallery is giving up the ghost. Carol Vogel has the details.
For now, I'll just say that it's a massive instance of the Ellis Rule -- the deal "ensure[s] that the Corcoran’s art collection would remain in public institutions." So, while the usual suspects will fall over themselves in the usual competition to see who can be THE MOST OUTRAGED by this OUTRAGEOUS OUTRAGEOUSNESS, my initial reaction is that I'm with David Ross: "I agree this is sad, and that the Corcoran has long been a tragic institution, but this is not such a bad outcome."
Or, as Tim Schneider tweeted:
"After firestorm over (now remote) possibility of Detroit Institute of Art having to deaccession/sell parts of their permanent collection, a bit surprised I haven't seen more relief over fact that Corcoran Gallery of Art's collection will stay safe (ie public) w/Natl Gallery. Which isn't to say the whole scenario is good news. It's messy and from a historical standpoint, sad. But it could be worse. Just imagine outrage if announcement was that Corcoran would be selling off works to keep limping forward, recoup losses, or pay creditors."
Yes, imagine the outrage. But is it really better to transfer the entire collection to the National Gallery than to have given them some of the collection in exchange for the cash needed to keep the Corcoran afloat?
Are we sure about that?
For now, I'll just say that it's a massive instance of the Ellis Rule -- the deal "ensure[s] that the Corcoran’s art collection would remain in public institutions." So, while the usual suspects will fall over themselves in the usual competition to see who can be THE MOST OUTRAGED by this OUTRAGEOUS OUTRAGEOUSNESS, my initial reaction is that I'm with David Ross: "I agree this is sad, and that the Corcoran has long been a tragic institution, but this is not such a bad outcome."
Or, as Tim Schneider tweeted:
"After firestorm over (now remote) possibility of Detroit Institute of Art having to deaccession/sell parts of their permanent collection, a bit surprised I haven't seen more relief over fact that Corcoran Gallery of Art's collection will stay safe (ie public) w/Natl Gallery. Which isn't to say the whole scenario is good news. It's messy and from a historical standpoint, sad. But it could be worse. Just imagine outrage if announcement was that Corcoran would be selling off works to keep limping forward, recoup losses, or pay creditors."
Yes, imagine the outrage. But is it really better to transfer the entire collection to the National Gallery than to have given them some of the collection in exchange for the cash needed to keep the Corcoran afloat?
Are we sure about that?
Tuesday, February 18, 2014
"A guard asked the man to put it down, but instead he threw it to the ground, smashing it" (UPDATED)
NYT: Ai Weiwei Vase Is Destroyed by Protester at Miami Museum.
Six thoughts from Ann Althouse.
UPDATE: There's video of the incident.
Six thoughts from Ann Althouse.
UPDATE: There's video of the incident.
Who's Faking Whom?
Just learned of a First
Department decision from November that could wreak some serious havoc on the
world of authentication litigation. The decision is here.
Briefly, Dealer A sells some work to Dealer B and sues for non-payment.
In defense, Dealer B claims (among other things) that “some or all” of the
works are fakes. Dealer A denies this: he says that, during the
period of time Dealer B had possession of the works, “either [Dealer B] or some
other custodian forged the authentic works that [he] originally gave to [Dealer
B].”
The trial court (Justice
Kornreich again)
holds that “the only opinion that can shed any light on the authenticity of the
Returned Works is that of an expert who has examined the originals and the
Returned Works and has the wherewithal to detect a forgery” -- in other words,
an authentication expert who saw the works before they were sold and can look
at them again now. The First Department affirmed. “The motion court
correctly determined that ... the testimony of an expert who viewed the
consigned works before they left [Dealer A] and who can testify that they
were forgeries when they left and were forgeries on their return.” “This,” they
add, “is consistent with how art work and forgeries are identified,
authenticated and detected.” No biggie.
But imagine an ordinary
authentication lawsuit. A collector buys a work from a gallery, with a
warranty of authenticity. Some time later, the collector discovers (let’s
imagine conclusively) that the work is a fake and sues the gallery. The
gallery can now say, “Wait a minute. The Pollock I sold you was
genuine. Yes, this is a fake, but how do we know it’s not a fake created
by you ‘or some other custodian’ in the two years since the work left the
gallery?” Unless the collector can produce an expert who examined the
work before the sale and can say it’s the same as the one he now has in his
possession, he loses. That can’t be right, yet it seems to be what the
case says.
Now, the facts in this First
Department case were kind of odd – Dealer B had passed the works on to another
party, who “had custody of the art for 2 to 6 years” leading up to the
lawsuit – so maybe the intention was to limit it to similar situations where
“chain of custody” is an issue. But again, there is nothing in the
language of the decisions themselves that is so limited. Definitely worth
watching to see how this develops.
Monday, February 17, 2014
“In essence, plaintiffs’ breach of contract cause of action alleges that, with the benefit of hindsight, it appears to have entered into a bad bargain”
I finally got around to reading the decision on the motion to dismiss Ron Perelman’s lawsuit against Gagosian Gallery. I had gotten the impression from the headlines in the press (see for example here, here, here) that it was something of a victory for Perelman, but it turns out to have been a pretty decisive victory for Gagosian.
The court threw out the breach of contract and unjust enrichment claims, as well as the breach of fiduciary duty claim: “plaintiffs’ allegations make clear that they were experienced and sophisticated business investors who entered into negotiated, arm’s-length transactions with defendants, which does not give rise to a fiduciary relationship. … Moreover, plaintiffs’ reliance on the fact that Perelman and Gagosian were friends for 20 years, ‘socialized together,’ were ‘business acquaintances,’ had ‘worked together’ previously and invested together, to establish a fiduciary relationship is unpersuasive.”
All that’s left is the “fraud” claim, which alleges that, as part of a complicated “exchange” transaction, the gallery “knowingly” “overvalued” the works Perelman got back. Apparently the gallery put in some evidence that this was not the case, but “these Invoices are not the type of conclusive documentary evidence upon which the Court generally relies on a pre-answer motion to dismiss.” So the claim survived for now.
For background on the case, here is Felix Salmon in 2012 correctly observing that “you don’t become a fiduciary because you’re friends, or because you’re knowledgeable, or any of those other reasons.” He said the suit was “utterly ridiculous, and will almost certainly get thrown out of court.” Close.
The court threw out the breach of contract and unjust enrichment claims, as well as the breach of fiduciary duty claim: “plaintiffs’ allegations make clear that they were experienced and sophisticated business investors who entered into negotiated, arm’s-length transactions with defendants, which does not give rise to a fiduciary relationship. … Moreover, plaintiffs’ reliance on the fact that Perelman and Gagosian were friends for 20 years, ‘socialized together,’ were ‘business acquaintances,’ had ‘worked together’ previously and invested together, to establish a fiduciary relationship is unpersuasive.”
All that’s left is the “fraud” claim, which alleges that, as part of a complicated “exchange” transaction, the gallery “knowingly” “overvalued” the works Perelman got back. Apparently the gallery put in some evidence that this was not the case, but “these Invoices are not the type of conclusive documentary evidence upon which the Court generally relies on a pre-answer motion to dismiss.” So the claim survived for now.
For background on the case, here is Felix Salmon in 2012 correctly observing that “you don’t become a fiduciary because you’re friends, or because you’re knowledgeable, or any of those other reasons.” He said the suit was “utterly ridiculous, and will almost certainly get thrown out of court.” Close.
Sunday, February 16, 2014
Flagrant egregiousity
A couple of follow-up points on Randolph College's recent sale of a $25 million Bellows. (Not to be confused with the Pennsylvania Academy of the Fine Arts recent sale of a $40 million Hopper. The former is the Worst Thing That's Ever Happened. The latter is nothing for anyone to be concerned about.)
First, I like how Randolph's president deals with the slippery slope objection:
"Randolph’s collection contains significant works, Dr Bateman said, that aren’t up for sale, such as works by Georgia O’Keeffe and Edward Hopper. Asked if the logic of selling off the Bellows shouldn’t concern those afraid that similar arguments could be made to sell the O’Keeffe or the Hopper, Dr Bateman said that wasn’t the case. 'We know how much money we need and it can be done with these [already planned] sales,' he said."
That's a good answer, but what really interests me is: how come we never hear the same question with the "good" kind of deaccessionings? How come no one ever asks if the "logic of selling off the Hopper" shouldn't concern those afraid that similar arguments could be made to sell lots of other masterpieces? I saw some people criticize the Hopper sale, but only on its own merits (just as one could criticize the Randolph sale on its own merits). But you never see anyone criticize sales-to-buy-more-art on slippery slope grounds. That's reserved exclusively for sales where the proceeds are used for other purposes. Strange.
I also wanted to call attention to the statement issued by the AAM on the sale. Here it is, in its entirety:
"The sale of George Bellows’s 'Men of the Docks' by the Maier Museum of Art at Randolph College is a flagrant, egregious violation of our Code of Ethics for Museums, showing total disregard of an important tenet common to the charter of all museums: collections are held in the public trust. And the public’s trust is the coin of the realm for museums. Strict adherence to the highest standards and best practices has made museums of all types among the most trusted sources of information for the American people. And the sale of 'Men of the Docks' threatens that lofty status. Further, the trust of both the public and elected officials at all levels of government has enabled museums to remain largely a self-regulated industry; this action belies that distinction. The 3,500 museum members of the American Alliance of Museums—and especially our 441 college museum members—vigorously protest the sale of a great American artistic treasure."
Is it me, or are they not even trying any more? The "coin of the realm"? What is that supposed to mean in this context? This action belies what distinction? Who is going to be convinced by this kind of rhetoric that didn't already completely agree with their position? What then is the point? It's almost as if they felt like they had to say something so the Deaccession Police couldn't criticize them for not saying anything.
Their statement on the Pennsylvania Academy's Hopper sale was less publicized, so, as a public service, I am reproducing it here:
"The sale of Edward Hopper's 'East Wind Over Weehawken' by the Pennsylvania Academy of the Fine Artse is a flagrant, egregious violation of our Code of Ethics for Museums, showing total disregard of an important tenet common to the charter of all museums: collections are held in the public trust. And the public’s trust is the coin of the realm for museums. Strict adherence to the highest standards and best practices has made museums of all types among the most trusted sources of information for the American people. And the sale of 'East Wind Over Weehawken' threatens that lofty status. Further, the trust of both the public and elected officials at all levels of government has enabled museums to remain largely a self-regulated industry; this action belies that distinction. The 3,500 museum members of the American Alliance of Museums vigorously protest the sale of a great American artistic treasure."
It's the coin of the realm, people. What more do you need to know? You can read the whole statement here.
Oh, one other important distinction between the two sales: the (bad) Randolph sale was to the National Gallery in London, so the work remains in the public domain. The (good) PAFA sale was to an anonymous private buyer.
As usual, it all makes perfect sense.
First, I like how Randolph's president deals with the slippery slope objection:
"Randolph’s collection contains significant works, Dr Bateman said, that aren’t up for sale, such as works by Georgia O’Keeffe and Edward Hopper. Asked if the logic of selling off the Bellows shouldn’t concern those afraid that similar arguments could be made to sell the O’Keeffe or the Hopper, Dr Bateman said that wasn’t the case. 'We know how much money we need and it can be done with these [already planned] sales,' he said."
That's a good answer, but what really interests me is: how come we never hear the same question with the "good" kind of deaccessionings? How come no one ever asks if the "logic of selling off the Hopper" shouldn't concern those afraid that similar arguments could be made to sell lots of other masterpieces? I saw some people criticize the Hopper sale, but only on its own merits (just as one could criticize the Randolph sale on its own merits). But you never see anyone criticize sales-to-buy-more-art on slippery slope grounds. That's reserved exclusively for sales where the proceeds are used for other purposes. Strange.
I also wanted to call attention to the statement issued by the AAM on the sale. Here it is, in its entirety:
"The sale of George Bellows’s 'Men of the Docks' by the Maier Museum of Art at Randolph College is a flagrant, egregious violation of our Code of Ethics for Museums, showing total disregard of an important tenet common to the charter of all museums: collections are held in the public trust. And the public’s trust is the coin of the realm for museums. Strict adherence to the highest standards and best practices has made museums of all types among the most trusted sources of information for the American people. And the sale of 'Men of the Docks' threatens that lofty status. Further, the trust of both the public and elected officials at all levels of government has enabled museums to remain largely a self-regulated industry; this action belies that distinction. The 3,500 museum members of the American Alliance of Museums—and especially our 441 college museum members—vigorously protest the sale of a great American artistic treasure."
Is it me, or are they not even trying any more? The "coin of the realm"? What is that supposed to mean in this context? This action belies what distinction? Who is going to be convinced by this kind of rhetoric that didn't already completely agree with their position? What then is the point? It's almost as if they felt like they had to say something so the Deaccession Police couldn't criticize them for not saying anything.
Their statement on the Pennsylvania Academy's Hopper sale was less publicized, so, as a public service, I am reproducing it here:
"The sale of Edward Hopper's 'East Wind Over Weehawken' by the Pennsylvania Academy of the Fine Artse is a flagrant, egregious violation of our Code of Ethics for Museums, showing total disregard of an important tenet common to the charter of all museums: collections are held in the public trust. And the public’s trust is the coin of the realm for museums. Strict adherence to the highest standards and best practices has made museums of all types among the most trusted sources of information for the American people. And the sale of 'East Wind Over Weehawken' threatens that lofty status. Further, the trust of both the public and elected officials at all levels of government has enabled museums to remain largely a self-regulated industry; this action belies that distinction. The 3,500 museum members of the American Alliance of Museums vigorously protest the sale of a great American artistic treasure."
It's the coin of the realm, people. What more do you need to know? You can read the whole statement here.
Oh, one other important distinction between the two sales: the (bad) Randolph sale was to the National Gallery in London, so the work remains in the public domain. The (good) PAFA sale was to an anonymous private buyer.
As usual, it all makes perfect sense.
Artist Pension Trust After 10 Years
Daniel Grant gives a status report. Some background, from when it was just starting out, here.
"The only way Starbucks will be hurt by this is if it decides to sue rather than laugh"
Kal Raustiala and Chris Sprigman on the legality of "Dumb Starbucks."
Monday, February 10, 2014
"I don’t want to be the judge who has a Picasso destroyed.
Preliminary injunction granted blocking the removal of "a large curtain painted by Pablo Picasso that has decorated the Four Seasons Restaurant since its opening in 1959."
Friday, February 07, 2014
Why do the Deaccession Police hate the British?
Carol Vogel reports today that Randolph College has sold a George Bellows painting to the National Gallery for $25.5 million. I haven't bothered to check, but I'm sure the usual suspects are rending their garments. But as Vogel tells it, it sounds like a pretty good deal all around: "It is the first major American painting to enter the National Gallery’s collection. The acquisition is also the start of a partnership between Randolph and the museum. Curators will go to Randolph to lecture; students from the college will be invited to do internships at the museum; and it is possible, officials at the college said, that from time to time, Randolph will be able to borrow the painting."
Most importantly, the work stays in "the public trust." Or have we decided the British don't count as part of the public?
Most importantly, the work stays in "the public trust." Or have we decided the British don't count as part of the public?
Thursday, February 06, 2014
I think we may need a ruling from the Deaccession Police on this
Here's a fascinating one.
A Portuguese bank owned a bunch of Mirós. "Crippled by debt and management irregularities," the bank was taken over by the Portuguese government, which sought to recoup some of its losses by selling the work.
But aha ... the moment the works became owned by the government, they became "cultural property" that it would be outrageous to sell.
If the bank had sold the works and used the proceeds to pay its creditors (including the government), I assume that would have been non-controversial. But by switching the order around (seizing the works and then attempting to sell), the government boxed itself into a corner.
A Portuguese bank owned a bunch of Mirós. "Crippled by debt and management irregularities," the bank was taken over by the Portuguese government, which sought to recoup some of its losses by selling the work.
But aha ... the moment the works became owned by the government, they became "cultural property" that it would be outrageous to sell.
If the bank had sold the works and used the proceeds to pay its creditors (including the government), I assume that would have been non-controversial. But by switching the order around (seizing the works and then attempting to sell), the government boxed itself into a corner.
"How does someone so capable of protecting his own art interests get taken in by a scam of this magnitude?"
ARTINFO's Rozalia Jovanovic reports on a lawsuit brought by "art dealer and former Wall Street shark Asher Edelman."
The biggest art forgery case in Canadian history?
The keyboardist for the Barenaked Ladies claims to be one of the victims.
Wednesday, February 05, 2014
It's held in the public trust ...
... but we don't want the public to actually get to, you know, see it. Controversy over a MoMA plan for its sculpture garden.
Sunday, February 02, 2014
"Artist Files Suit Over Missing Empire State Building Paintings"
Randy Kennedy has the story in the NYT.
Friday, January 31, 2014
Tuesday, January 28, 2014
"The rescue fund for Detroit pensioners and the Detroit Institute of Arts has gotten a $40-million boost from the W.K. Kellogg Foundation"
More money-putting where mouth is.
I'm liking this new model of dealing with deaccessioning. The next time an institution is in desperate need of cash -- the next National Academy or Fisk or Brandeis -- instead of screeching about how the proposed sale offends their sense of "ethics," people can go ahead and contribute the needed funds. Someone should start a deaccessioning kickstarter.
I'm liking this new model of dealing with deaccessioning. The next time an institution is in desperate need of cash -- the next National Academy or Fisk or Brandeis -- instead of screeching about how the proposed sale offends their sense of "ethics," people can go ahead and contribute the needed funds. Someone should start a deaccessioning kickstarter.
Sunday, January 26, 2014
Jasper Johns Takes The Stand (UPDATED)
In the trial of a former foundry owner "who stands accused of creating at least 13 fake sculptures and selling or trying to sell them." Background here.
UPDATE: A guilty plea in the case.
UPDATE: A guilty plea in the case.
Wednesday, January 22, 2014
"Bottom line: the conversation re: the DIA has turned the corner, but the museum is not home free." (UPDATED)
Judith Dobrzynski summarizes the day's developments in Detroit.
UPDATE: Some thoughts from Nicholas O'Donnell: "[I]t seems unlikely at this point that Orr will even propose an actual sale of the DIA collection, let alone try to go through with it."
UPDATE: Some thoughts from Nicholas O'Donnell: "[I]t seems unlikely at this point that Orr will even propose an actual sale of the DIA collection, let alone try to go through with it."
Tuesday, January 21, 2014
More on Richard Serra and the Fight for Public Art
As a follow up to my post
last week, the following is a letter to the editor from Serra that the Times
declined to publish:
Richard Serra
To The Editor:
Martha Schwendener’s recent article “Shifting His
Tectonic Plates” (January 10) referred to the Federal government’s destruction
of my sculpture “Tilted Arc” and went on to claim, incorrectly, that “in the
aftermath of that fiasco” I stopped fighting for the rights of artists creating
public sculpture. In fact, I waged a
five-year battle against the misrepresentations, false promises and deceptions
of the General Services Administration, and most importantly took my case to
court with the aim of defending the right of artists to make work free from censorship,
defacement or destruction by government agencies. Although I lost the case, with the court
allowing the government to establish a precedent for property rights over free
expression, I have never stopped speaking out for the moral rights of all artists.Richard Serra
Monday, January 20, 2014
Enhancement
The NYT's Graham Bowley had a good piece last week on the practice known as "enhanced hammer" -- where, in addition to waiving the seller's commission, the auction houses are also giving consignors part of the buyer's premium as well. Felix Salmon adds his usual interesting commentary, pointing out that, in a case where the seller gets to keep all of the buyer's premium (as apparently happened with Peter Brant's recent sale of "Balloon Dog"), it opens up the possibility that the seller could be the buyer of his own work: "If Brant was the high bidder, the total cost to him of selling
the work would have been tiny, compared to the benefit he got in terms
of personal reputation and the increased value of other works in his
collection."
Thursday, January 16, 2014
"Even a good-faith purchaser for value cannot acquire title to stolen goods" (UPDATED)
I'm a little late getting to this one, but the Baltimore Museum of Art has prevailed on summary judgment in a custody battle over a Renoir stolen from the museum in 1951. Patricia Cohen has the story here.
UPDATE: Fox Rothschild comments: "This case highlights that provenance is key! ... All buyers of fine are advised to gather as much documentary evidence from the seller at the time of purchase and to keep receipts and any other documentation to show when, where and how the item was acquired in case a dispute over title arises."
UPDATE: Fox Rothschild comments: "This case highlights that provenance is key! ... All buyers of fine are advised to gather as much documentary evidence from the seller at the time of purchase and to keep receipts and any other documentation to show when, where and how the item was acquired in case a dispute over title arises."
"ACA could have accepted the higher price that accompanies certainty of authenticity, but chose instead to accept the risk that the painting was a forgery."
The Second Circuit has affirmed Judge Cederbaum's summary judgment decision in a case involving a fake Milton Avery painting, discussed earlier here. I'll post a link when I find one.
Monday, January 13, 2014
A Way to Save the DIA?
Apparently a group of local and national foundations have formed a human circle around the Detroit Institute to block the sale of any art. Actually, scratch that. They haven't done that at all. What they've done is pledged $330 million towards a deal that would save the art.
I think the technical legal term for this under the bankruptcy statute is Putting Your Money Where Your Mouth Is. Much more effective than simply pounding the table and repeating that museums never ever sell art, it just isn't done.
John Gallagher and Mark Stryker have the story in the Detroit Free Press. They point out that "the pledges do not by themselves mean that the ... DIA art [is] now beyond the reach of creditors. Rather, the commitments are intended and expected to play a part in ... 'an overall balanced settlement of disputes in the bankruptcy.' In other words, there is no deal until all the various claims in the broader bankruptcy case have been settled." More from Randy Kennedy (and others) in the NYT.
One way to look at the proposed deal is as a sale of the collection by the DIA to the foundations ... who then gift it back to the museum. Or maybe as the museum paying to remove the works from the bankruptcy process. I guess the creditors might then argue that the "purchase price" was too much of a bargain and demand more.
I think the technical legal term for this under the bankruptcy statute is Putting Your Money Where Your Mouth Is. Much more effective than simply pounding the table and repeating that museums never ever sell art, it just isn't done.
John Gallagher and Mark Stryker have the story in the Detroit Free Press. They point out that "the pledges do not by themselves mean that the ... DIA art [is] now beyond the reach of creditors. Rather, the commitments are intended and expected to play a part in ... 'an overall balanced settlement of disputes in the bankruptcy.' In other words, there is no deal until all the various claims in the broader bankruptcy case have been settled." More from Randy Kennedy (and others) in the NYT.
One way to look at the proposed deal is as a sale of the collection by the DIA to the foundations ... who then gift it back to the museum. Or maybe as the museum paying to remove the works from the bankruptcy process. I guess the creditors might then argue that the "purchase price" was too much of a bargain and demand more.
On Richard Serra and the Fight for Public Art (UPDATED)
The NYT's Martha Schwendener had a review of (our client) Richard Serra’s current show at Gagosian Gallery in New York. She’s of course entitled to her aesthetic opinions, but the assertion that Serra hasn’t done enough to “fight for the rights of artists creating public sculpture” is just bizarre. Greg Allen has a great response here. For those interested in the Tilted Arc controversy -- and Serra’s related fight for the rights of artists creating public sculpture -- this is a good place to start.
UPDATE: More from Sergio Muñoz Sarmiento.
UPDATE: More from Sergio Muñoz Sarmiento.
Thursday, January 09, 2014
"An experimental printmaking studio can move ahead with part of its lawsuit against a prominent Manhattan abstract painter based on a dispute arising from a collaboration of new artwork, a Manhattan State Supreme Court judge has ruled." (UPDATED)
The artist is Christopher Wool. The story is here. The decision is here [$]. Straightforward application of the statute of frauds.
UPDATE: Laura Gilbert has more in The Art Newspaper.
UPDATE: Laura Gilbert has more in The Art Newspaper.
Monday, January 06, 2014
Thursday, January 02, 2014
Who can keep track at this point?
In The Art Newspaper, Laura Gilbert says the number of Knoedler lawsuits now totals eight.
"In fact, all these allegations are so patently inadequate that the court can only conclude that they were brought solely for the purposes of harassment or embarrassment, without any consideration of their legal sufficiency."
Catching up on some pre-holiday news, I see that Justice Kornreich was really unimpressed with the Calder estate's lawsuit against Klaus Perls's estate: "plaintiffs are attempting to litigate issues that necessarily stretch back decades without any personal knowledge or contemporaneous records, where nearly all of the people who had personal knowledge of the facts are dead. Rarely has the court encountered a better justification for the statute of limitations."
She had little patience for all the stuff that got commentators excited about the case, calling the allegations "an incoherent stew of irrelevance and innuendo": "Briefly, allegations of tax fraud by defendants are the sole concern of the United States government and have nothing whatsoever to do with this case. Any curiosity in the Perls' method of keeping their own business records is immaterial, as there is no allegation that the estate ever relied on those records for any purpose. That Klaus Perls may have deposited some of the proceeds from the sale of Calder works into a Swiss bank account does not amount to fraud against plaintiffs, nor does it give plaintiffs the right to see the records of that account. That Klaus never disclosed to the estate that Calder also maintained a Swiss bank account is also immaterial, as it was not his obligation to do so."
The decision is here. The New York Times is here. Judith Dobrzynski says, so far, she's with the judge. Lee Rosenbaum was skeptical from the start.
She had little patience for all the stuff that got commentators excited about the case, calling the allegations "an incoherent stew of irrelevance and innuendo": "Briefly, allegations of tax fraud by defendants are the sole concern of the United States government and have nothing whatsoever to do with this case. Any curiosity in the Perls' method of keeping their own business records is immaterial, as there is no allegation that the estate ever relied on those records for any purpose. That Klaus Perls may have deposited some of the proceeds from the sale of Calder works into a Swiss bank account does not amount to fraud against plaintiffs, nor does it give plaintiffs the right to see the records of that account. That Klaus never disclosed to the estate that Calder also maintained a Swiss bank account is also immaterial, as it was not his obligation to do so."
The decision is here. The New York Times is here. Judith Dobrzynski says, so far, she's with the judge. Lee Rosenbaum was skeptical from the start.
Tuesday, December 24, 2013
"The lawsuit claims the gallery’s conduct is 'self-dealing that can only be described as Byzantine.'"
Daniel Schnapp has news of a lawsuit by Michael Ovitz against Perry Rubinstein Gallery.
Saturday, December 21, 2013
"Ms. Sonnabend’s name is now dutifully listed among the founders in the museum’s lobby."
Holland Cotter explains how MoMA's new Sonnabend show is in part "a byproduct of legal hassles":
"[Rauschenberg's] 'Canyon' plays a major role here. The show revolves around it in a very
basic way. Because it incorporates the remains of a bald eagle, an
endangered species, the work could not be sold. When Sonnabend died and
her collection was appraised for tax purposes, her heirs ... valued the
unmarketable 'Canyon' at zero; the Internal Revenue Service, however,
estimated that it was worth $65 million and was prepared to tax the estate accordingly. A deal was struck. If the piece was donated to a museum, the estate tax
on it would be dropped. Both the Met and MoMA badly wanted it, and
Sonnabend’s heirs made conditions for a gift. The receiving institution would be required to mount an exhibition in
Sonnabend’s honor and inscribe her name in the museum’s list of founding
donors."
"The elephant labored and produced a mouse."
That's how one defense lawyer summed up the result in the strange, "self-defeating" breach of confidentiality suit brought by Marguerite Hoffman. The jury awarded her $500,000. "Hoffman’s lead attorney had suggested a figure as high as $22.4 million in closing arguments," according to The Dallas Morning News. I never really understood the damages theory in the case (among other things). The one thing that seems clear is that many more people know about Hoffman's sale than would have had the case not been brought.
"The ownership of the artwork has been fiercely contested during a three-week trial in which Fawcett's final wishes and her relationship with O'Neal were dissected."
Ryan O'Neal has won possession of a Warhol portrait of Farrah Fawcett.
Oh the horror
I picked a good week to be busy with the day job because I was able to avoid the spectacle of the usual suspects reacting to the issuance of Christie's final report on the value of certain works in the DIA's collection. Some merely threw up, but others fainted and had to be revived with smelling salts. Still others remain in their beds, unable to go on in a world where values are assigned to artworks. It's just too much to bear. (This aversion to ever valuing art explains the well-known practice of museums not to insure their collections.)
In any case, if you can handle it, here is a report from Mark Stryker in the Detroit Free Press. Here is Randy Kennedy in the Times. The report itself is here. Be strong.
In any case, if you can handle it, here is a report from Mark Stryker in the Detroit Free Press. Here is Randy Kennedy in the Times. The report itself is here. Be strong.
Tuesday, December 17, 2013
The Jenack Decision
Was running around today, but the big news was that the Court of Appeals issued its decision in the Jenack case. The decision is here. Tons of coverage, including Graham Bowley in the NYT, Laura Gilbert in The Art Newspaper, and Nicholas O'Donnell at The Art Law Report. The bottom line, as Gilbert puts it, is that the court "reversed an earlier decision that had alarmed auctioneers and those in
the trade because, if upheld, it could have required them to disclose
sellers’ identities" if they wanted to create a binding contract. A few quick thoughts:
1. Footnote 10 seems to vindicate the Olsoff Interpretation -- that the lower court decision was "narrow and technical" and "deal[t] only with the evidence that is required if an auction purchaser defaults." The footnote says: "Of course, if Jenack had other written documentation of this transaction that provided the seller's name, that certainly would satisfy the [statute of frauds], but there is no such documentation in the record" (my emphasis). Of course!
2. Though I think the decision is ultimately the right one, there's still something odd about the statutory interpretation the court employs to get there. The relevant statutory provision says that, in the case of a sale at public auction, the statute of frauds can be satisfied if, at the time of sale, the auctioneer "enters in a sale book," among other information, (a) "the name of the purchaser" and (b) "the name of the person on whose account the sale was made." But, says the court, since "it is well settled that an auctioneer serves as a consignor's agent," the relevant sale book (or "clerking sheet") provided "the name of the person on whose account the sale was made" by listing the name of the auctioneer (Jenack). But if that's the case, it seems the court has read prong (b) right out of the statute: the provision at issue only applies to sales at public auction -- but since the auctioneer is (always) the consignor's agent, prong (b) will always, by definition, be satisfied. The court has redrafted the statute to say only the buyer's name must be entered in the sale book.
3. The main sense you get, reading the decision, was that the court felt like the buyer here was getting away with something -- that he was "using the Statute of Frauds as a means of evading a just obligation" -- and they just weren't going to let him do that. Sometimes that's what it comes down to.
1. Footnote 10 seems to vindicate the Olsoff Interpretation -- that the lower court decision was "narrow and technical" and "deal[t] only with the evidence that is required if an auction purchaser defaults." The footnote says: "Of course, if Jenack had other written documentation of this transaction that provided the seller's name, that certainly would satisfy the [statute of frauds], but there is no such documentation in the record" (my emphasis). Of course!
2. Though I think the decision is ultimately the right one, there's still something odd about the statutory interpretation the court employs to get there. The relevant statutory provision says that, in the case of a sale at public auction, the statute of frauds can be satisfied if, at the time of sale, the auctioneer "enters in a sale book," among other information, (a) "the name of the purchaser" and (b) "the name of the person on whose account the sale was made." But, says the court, since "it is well settled that an auctioneer serves as a consignor's agent," the relevant sale book (or "clerking sheet") provided "the name of the person on whose account the sale was made" by listing the name of the auctioneer (Jenack). But if that's the case, it seems the court has read prong (b) right out of the statute: the provision at issue only applies to sales at public auction -- but since the auctioneer is (always) the consignor's agent, prong (b) will always, by definition, be satisfied. The court has redrafted the statute to say only the buyer's name must be entered in the sale book.
3. The main sense you get, reading the decision, was that the court felt like the buyer here was getting away with something -- that he was "using the Statute of Frauds as a means of evading a just obligation" -- and they just weren't going to let him do that. Sometimes that's what it comes down to.
Monday, December 16, 2013
Resale Royalty Report
The Copyright Office has issued its long-awaited report on resale royalties. You can read it here. The NYT's Patricia Cohen has a brief story here. Art in America's Tracy Zwick is here (I'm quoted in that one). The Art Newspaper's Julia Halperin is here. Judith Dobrzynski comments here ("Still, it remains very unclear whether Nadler’s bill can get through Congress — or even get on the schedule").
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