"The Feud That’s Shaking Gallery Walls"

Robert Frank had a piece in the Times this weekend on the Perelman-Gagosian lawsuit.

The story leaves out that the bulk of the case was thrown out earlier this year.

Felix Salmon boils it down:  "I really don't understand what the Perelman beef is here.  Larry set a price, Ron voluntarily paid it."

"He was taken into custody by police after he struggled with the museum’s security guards."

New York Times:  Vandal Strikes Koons Exhibit.

Breaking non-news: Banksy has not been arrested

Artnet doesn't have the news.

A Deaccessioning Puzzle

Reading about Mitch Rales's Glenstone collection in Carol Vogel's column today got me thinking about how museums come to be bound by the "ethical" rules regarding deaccessioning.  I mean in the most literal sense:  how does it happen?

Imagine a wealthy collector -- Rales, Stevie Cohen, somebody like that -- decides to buy a building in Chelsea and open his collection up to public view.  I don't think anyone would say that, having done so, he forfeits his right to sell works from his collection.  It's his property.  If he wants to sell his Film Stills, he can sell his Film Stills.  And I think we would all also agree that, if he does so, he should be able to use the sales proceeds however he wants.  He can use them to buy more art, or help pay for the building he's using to make his amazing collection available to all of us, or to pay the curators and guards he's employing to further enhance our experience.  Since we are lovers of art, we may think the best thing he can do with the sales proceeds is plow them into buying more art, but certainly he's under no ethical or other obligation to do so.  Again, it's his property, he's doing us a great favor by sharing it with us, he can do anything he wants with the money, including using it to put his kids through college.  Right?

Next, imagine the same scenario except now the collector decides to take the formal legal step of becoming a "museum."   It's still his collection, he's still doing us the amazing favor of giving us access to it.  Has it now become "unethical" (repulsive etc.) to use sales proceeds for anything but the purchase of more art?  How did that happen?  Really:  how?

One answer some might be tempted to give is that becoming a museum carries with it certain tax benefits, which in turn brings the ethics rules into play.  But that seems odd to me.  I can understand the argument that those tax benefits carry with them certain obligations -- the museum must be generally open to the public, everything it does must be for the public benefit (so using sales proceeds to pay for the founder's kids to go to college would no longer be possible), and so on.  But how do you get from there to a commitment to the deaccesioning-to-buy-more-art-good, deaccessioning-for-any-other-reason-bad museum "ethics" rules.  Those rules are the rules of a private organization (the AAMD) that seems to think they make sense for some reason.  They don't flow naturally from the fact that an institution is tax-exempt.  (Tax-exempt artist foundations like the Warhol Foundation, for example, sell work and use the proceeds to fund their operations all the time, and no one thinks there's anything wrong with that, nor should they.)  So how is it that calling yourself a museum automatically brings them into play?  I've never seen a good answer to that question.

30 months

Prison time for foundry owner who sold Jasper Johns fakes.

Family Squabble

NYT:   Charges of Looting as Heirs Dispute C.C. Wang Collection.

"With the advances in 3D scanning and other digital technologies, I suspect it is easier than ever to duplicate work and create copies."

Daniel Grant:  "An epidemic of sculpture knock-offs is plaguing the art world."

"Are copyright laws too strict?"

Louis Menand in The New Yorker.  Interesting throughout.

"Deal Is Said to Be Close in Detroit’s Bankruptcy" (UPDATED)

New York Times story here.

In other DIA news, "a pair of Oakland County politicians are poised to take action against the Detroit Institute of Arts after it was revealed last week that the taxpayer-supported museum handed out double-digit raises to DIA leaders in 2012."

UPDATE:  Judith Dobrzynski on the raises issue:  "Optics matter in cases like this. It’s going to be sticky no matter what happens, but I think the DIA board should reconsider–and either make its case publicly or find another solution."

"In a ruling handed down late last week by the United States Tax Court and seen by many as an important victory for artists ..."

The New York Times had a story yesterday on a recent Tax Court decision regarding the deductibility of art-related expenses.  Sam Brunson puts the story in proper perspective.  (Summary:  not a big deal.)

A note on Elkins (UPDATED 2X)

Michael Rushton has a post on the Elkins decision which closes with the following:  "If art was previously being treated inequitably in the tax code, and the inequity was rectified, great. But if the result is to give special privileges to collectors not available to others, it needs a close and critical look."

Without addressing the larger point he raises, let me just say:  Art was previously being treated inequitably in the tax code, and the inequity was rectified.

In a nutshell, the issue is as follows.  Suppose I have a $10 million Picasso and I want to sell you a 40% ownership share.  What is that 40% share worth?  You might say $4 million (40% of the $10 million total value), but if you think about it, that isn't right because then you'd be stuck co-owning the piece with me, so there would be all sorts of hassles and complications involved (who gets to hang it on their wall and for how long, shipping and insurance issues, etc.) and, most important of all, you might not be able to sell it when you want or need to (because I might not agree).  So while you would certainly pay something for that 40% interest, you wouldn't pay $4 million.  You would demand a ("fractional interest") discount.  There's nothing controversial about that, it's well-established with other sorts of assets (e.g., real estate).  But for some reason the IRS insisted on treating art differently.  That inequity has now been rectified.

UPDATE:  Rushton responds here.  He's troubled by the tax avoidance motive behind the transaction, which is fair enough (though as Learned Hand said:  "Any one may so arrange his affairs that is taxes shall be as low as possible; ... there is [no] patriotic duty to increase one's taxes").  But if that's a problem, it's a problem across the board for fractional discounts.  There was no reason for the IRS to single out fractional discounts for art for different treatment.

UPDATE 2:  Rushton once more.

Does fair use doctrine favor the rich? (UPDATED)

Sergio seems to think so.  I'm not sure about that, but I do agree completely with this, from my co-teacher Amy Adler:

"One of the worries that I think we should all have about the extremely chaotic and uncertain area of fair use law is it will force artists to steer clear of engaging in work they should otherwise be able to do for fear of getting sued, and that applies to all artists rich or poor."

UPDATE:  Sergio responds here.  I'm still not convinced.  What we haven't seen, I think, is a "reverse Cariou" -- that is, a case where a "rich" artist sues a "poor" appropriation artist and, unlike Cariou, wins.  I agree with Sergio that what we have now is a clusterfuck.  I just don't think it has much to do with the relative financial standing of the artists.

"The temptation to view art as another capital asset has been especially intense this year across the country."

Another article on deaccessioning that neglects to mention that museums sell art (i.e., "treat it as a capital asset") all the time.  What was the Art Institute of Chicago doing, to take just one recent example, when it sold 117 works from its photo collection last month, if not viewing them as capital assets?

"This is the first Circuit court to expressly reject transformative use, and it has done so rather emphatically."

Barry Werbin, at NYSBA's Entertainment, Arts and Sports Law Blog, on Kientiz v. Sconnie Nation, discussed earlier here.

"Chapter 9 is not a privilege; it is a political failure"

Kristi Culpepper, excellent on Detroit.

And on the Grand Bargain in particular:  "One of the concerns I have expressed about the so-called grand bargain that emerged from mediation is how biased and path-dependent the case became after it was announced. It effectively cut off the court’s ability (or desire?) to entertain any alternative proposal from creditors or other stakeholders. It also promoted a toxic 'us versus them' mentality, where anyone who suggested an alternative was construed as working contrary to the court itself and could not defend themselves publicly."

"A Potential Game Changer for Estate Taxes on Art"

The Elkins decision I mentioned last week makes it to the New York Times.

"After Merger, Corcoran Gallery of Art Faces Uncertain Future"

Blair Murphy at Hyperallergic.

They used the forbidden word again.

"Judge Steven Rhodes today pressed Detroit emergency manager Kevyn Orr to provide a better explanation for why he chose not to sell Detroit Institute of Arts property."

That was from Friday, and I assume, based on everything we've heard about Judge Rhodes and the art, that the point of the questioning was less to challenge the conclusion than to build a better record in the bankruptcy case.

The Art Market Monitor summarizes Orr's responses as "reveal[ing] that he put DIA in play enough to see what the museum might be able to come up with.  The resulting 'Grand Bargain' was effectively found money to Orr."  Nicholas O'Donnell agrees:  "We may indeed look back on this as pulling a rabbit out of a hat, when all is said and done."

And people say we monkey around

Nicholas O'Donnell is with me on the pressing issue of monkeys and copyright.

We shall fight in the courtrooms

The New York Post:  Winston Churchill's artist granddaughter sues gallery.

2015 National Cultural Heritage Law Moot Court Competition

February in Chicago.  Details here.

Reminder from Detroit: the fight over DIA's art isn't over

Mark Stryker summarizes the state of play.

Meanwhile, Detroit Free Press columnist Rochelle Riley asks:  Where's the grand bargain for Detroit's kids?

"How should we subsidize charitable giving to the arts?"

Some thoughts from IU's Michael Rushton.

Copyright and Graffiti (UPDATED)

The Atlantic asks whether graffiti can by copyrighted.  The answer given seems to be "why not?"

This post, from a couple years back, drills a little deeper into the question.

UPDATE:  Sergio Muñoz Sarmiento:  "The more interesting question, to me, is whether the same graffiti (not commissioned murals) also garners moral rights protection."

Idea vs. Expression

Artist's copyright infringement suit against Avatar director James Cameron thrown out, on a motion to dismiss (rather than summary judgment).  Story here.  Opinion here.

"It’s a huge affirmation that opens the door to help art owners reduce their estates." (UPDATED)

Was distracted this week, including by thinking about who shall be deaccessioned and who shall not in the coming year, and still catching up.  For my money the most important art law story of the week was the Fifth Circuit's decision in the Estate of James Elkins affirming the use of fractional interest discounts for works of art.  Forbes has a story here.  The decision is here.

UPDATE:  Eileen Kinsella has more here.

"What’s the difference between a Warhol silk-screen and a Landis copy?"

"It's not out of the realm of possibility that forgeries could one day become the next big thing in art."

The New York Times reviews a new documentary about art forger Mark Landis.

"Testimony from a high-end art evaluator will resume Thursday ..."

". . . as Detroit's bankruptcy trial moves toward a focus on the city's art at the Detroit Institute of Arts."

Judge Easterbrook Is Not A Fan Of The Prince-Cariou Decision Either (UPDATED 2X)

An interesting fair use decision in the Seventh Circuit, with echoes of Prince-Cariou and, even more so, the Shepard Fairey "Hope" poster case.  The defendants used a photo of the Mayor of Madison, Wisconsin on some t-shirts and tank tops; the photographer sued.

Judge Easterbrook begins by declining to follow the Second Circuit's approach in Prince-Cariou:

"We’re skeptical of Cariou’s approach, because asking exclusively whether something is 'transformative' not only replaces the list in §107 but also could override 17 U.S.C. §106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under §106(2).  Cariou and its predecessors in the Second Circuit do not explain how every 'transformative use' can be 'fair use' without extinguishing the author’s rights under §106(2)."

Later, he provides a very clear statement of the Cariou, get-your-hands-off-my-work position:

"[D]efendants did not need to use the copyrighted work. ... There’s no good reason why defendants should be allowed to appropriate someone else’s copyrighted efforts as the starting point in their [work], when so many non-­copyrighted alternatives (including snapshots they could have taken themselves) were available. The fair-­use privilege under §107 is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors. (Many copyright owners would block all parodies, for example, and the administrative costs of finding and obtaining consent from copyright holders would frustrate many academic uses.)"

Having said that, however, he concludes that it's "not enough to offset the fact that, by the time defendants were done, almost none of the copyrighted work remained," and therefore affirms the district court's ruling of fair use.

UPDATE:  Copyright guru Bob Clarida emails:  "The Seventh Circuit continues to pretend that transformative use is some sort of Second Circuit aberration that merely got a 'mention' in Campbell."

UPDATE 2:  Fierce Prince-Cariou critic Sergio Muñoz Sarmiento responds here.  Nicholas O'Donnell says "it is hard to see yet how long a shadow this case will case relative to Prince."

"Detroit reaches bankruptcy deal with fiercest creditor"

Story here.

Nicholas O'Donnell:  "This does not completely put an end to discussion about the role of the DIA collection, but for all intents and purposes it will likely be the last of any proposal to collateralize or sell the artwork."

More animal copyright

Remember my hypothetical about the artist who intentionally leaves a camera out for a monkey to use?

Well, Agnieszka Kurant's show up at Tanya Bonakdar Gallery includes the following work:

"The sculptural installation A.A.I. (whose title references the concept of 'artificial artificial intelligence') is the product of the collective intelligence of termites to which Kurant outsourced her art production. ... Working with entomologists in laboratories at the University of Florida, Kurant employed an entirely unaware worker society of millions of termite specimens to produce sculptural mounds. The artist supplied the termites with alternative building materials such as vividly colored sands, gold, and glitter resulting in the creation of hybrid forms hovering between nature and culture."

Does anyone doubt that Kurant holds (and deserves) the copyright in the work?

"No case in recent history more clearly illustrates the subjective nature of pricing art than the disparate expert opinions of value of the Detroit Institute of Art collection." (UPDATED)

Appraiser Cindy Charleston-Rosenberg:  Warning For Collectors.

UPDATE:  Related thoughts from Jay Grimm.

Tell me again about the public trust (one of O’Keeffe’s best-known paintings edition) (UPDATED)

The Georgia O’Keeffe Museum is selling three paintings, including "Jimson Weed (White Flower No. 1)" from 1932, which is estimated at $10 million to $15 million.

Three paintings which, having fallen under the aegis of a museum, are held in the public trust, to be accessible to present and future generations.

Three paintings whose sale will certainly cause potential future donors to ask, Why should I give this to you? What guarantee do I have that you're not going to sell it?

UPDATE:  My friend Peter Dean emails:

"I understand that the museum police have a self-created exception to their self-created rules about de-accessioning, but it does seem a bit odd for an O’Keeffe museum to sell O’Keeffe paintings with the proceeds to be placed in the museum’s acquisitions fund, which will be used to purchase  . . what? More O’Keeffe paintings?  To fill gaps?  We are going in circles.

"Even if one tries to follow the logic of allowing sales to 'refine' a collection, in this case one of the three paintings seems to have especial provenance (display in the White House), value and merit.  How does that fit with 'refinement'?"

Put a bird on it (UPDATED)

Willamette Week has a story up about how some people are bothered by the fact that the artist who created the Portlandia sculpture retains the copyright to it.  It starts off sort of suggesting that this is something out of the ordinary, though later in the story it concedes that "actually, it's not that uncommon" (I would say it's not uncommon period).  Cities can negotiate for the copyright to public art pieces if they want, but then that's going to severely limit the pool of artists interested in working with them.

UPDATE:  Michael Rushton argues that it makes more sense for the city to acquire the copyright upfront. He says that "greatly reduces the transaction and other costs of anyone wishing to create an image that includes the statue having to negotiate individually with the artist."  I'm not sure I agree.  First, it only reduces the transaction costs if the city agrees to put the copyrights in the public domain (which I've never seen happen) -- otherwise instead of having to negotiate individually with the artist, anyone wishing to use the work will have to negotiate individually with the city.  Six of one, half dozen of the other.  In addition, suppose it would cost the city $100 to get the work without the copyright, and $150 if the copyright is included.  Why should "we all" (that is, the general citizenry of the city) pay that extra $50, rather than letting people who want to sell posters and other tchotchkes depicting the work pay for it directly?  Last, as I mentioned in my initial post, as a general matter, the best artists won't even consider such an arrangement. Rushton says "if the artist under consideration won't take such a deal, find another artist who will" -- but I think he understates the severity of that aspect of the problem.

The strange, self-defeating breach of confidentiality lawsuit brought by Marguerite Hoffman took another turn last week (UPDATED)

The background is here.  A news story on the latest developments is here.  The judge threw out the jury verdict against the buyer of the work (David Martinez) on the grounds that the gallery was not his agent when it entered into the contract that contained the confidentiality clause.  (So the court viewed the sale as a two-step transaction -- Hoffman to the gallery to Martinez -- rather than a sale from Hoffman to Martinez through the gallery.)  The $500,000 verdict against the gallery remains, and that's another strange aspect of the case:  the theory is that that's the amount Hoffman gave up by selling the work privately (with a confidentiality clause) rather than at auction, as if sales at auction always do better than private sales.  One wonders why anyone would ever sell anything privately if that's the case.

UPDATE:  Art and Artifice:  "Four year of litigation and no additional millions to show for it....distressing."

Tell me again about the public trust (collection of over 30 Tiffany objects edition)

The Museum of Fine Arts, Boston is selling.

Remember, having fallen under the aegis of a museum, those objects are held in the public trust, to be accessible to present and future generations.

And potential future donors will certainly being asking, Why should I give this to you? What guarantee do I have that you're not going to sell it, just like you sold off those 30+ Tiffany objects?

That's the coin of the realm folks.  Use your common sense.

"Detroit Clears Crucial Hurdle on Bankruptcy"

A settlement with bond insurer Syncora.  Nicholas O'Donnell tweets:  "Huge. Would resolve biggest opponent to Grand Bargain."

An important decision under the Massachusetts consignment statute

Nicholas O'Donnell has all the details.

Moral rights for monkeys?

Philosopher Mike LaBossiere considers the question.

"None of these guys have legal copyright. What they’re doing is breaking federal law.”

The NYT's Randy Kennedy reports on a lawsuit over the work of Vivian Maier.

I've wondered about this from the moment I heard they were making prints from the found negatives.

"They are arguing [the] grand bargain is a de facto asset sale, that it is mispricing the asset, and that it should not benefit only one creditor."

That's Kristi Culpepper's summary of the argument so far, and it's exactly what I predicted would happen back in June:

"The grand bargain, you'll recall, 'brings together the equivalent of $816 million from national and local foundations, the DIA and the state of Michigan to spare the museum’s collection from a possible sale.'  In essence, it's a sale of the museum's collection to a new, independent nonprofit for $816 million.  But what makes that the right number?  We know that the collection is actually worth a great deal more than that.  Doesn't the existence of the grand bargain make it easier for the creditors to come in and say, "Look, everyone -- even the museum itself -- acknowledges that the art isn't really held in any sort of legally cognizable trust, it cannot simply be removed from the bankruptcy process, there has to be a price to the removal ... and this price is too low.  There are people out there who will pay twice that amount and the bankruptcy trustees have an obligation to explore those higher offers."

"Detroit is far short of the $1.7 billion it needs over the next 10 years to remove abandoned buildings, replace outdated technology and increase public safety to stem the exodus from the city."

Reuters:  Doubts over whether Detroit bankruptcy plan gets job done.

Kristi Culpepper says it's "finally starting to dawn on the press that Detroit's bankruptcy plan is not feasible."

"Under the plan the city hopes Judge Rhodes will confirm, Detroit’s more than 100,000 creditors would get a wide range of returns on their claims."

The New York Times tees up the Detroit bankruptcy trial, beginning Tuesday.

Related:  10 key questions to watch for at Detroit's historic bankruptcy trial.

"The company has doubled the 'maximum permissible amount of net outstanding auction guarantees' from $300m to $600m"

The Art Newspaper's Charlotte Burns:  Sotheby's comes out fighting ahead of auction season.

Tim Schneider tweets in response:  "Much as I hate guarantees this may be their only hope. Reality is most people sell at auction because they want/need capital fast. Guaranteed money talks loudest to consignors in that situation. So it Christie's is offering big guarantees, only way for Sotheby's to keep pace and get quality work is to fight fire with fire."

Sanction Portugal!

Artnet News:  Portugal Will Sell Those 85 Joan Miro Paintings After All.

Background here.

And do not call it a "merger."

The Hall Monitors' new Very Important Cause ...

... is to insist that we never ever call what happened to the Corcoran a "merger."  In other words, these news reports --

Washington Post:  Corcoran merger with National Gallery, George Washington University approved;

LA Times:  Corcoran wins judge's approval for merger plans;

Bloomberg:  Corcoran Gallery's Merger With D.C. Institutions Approved;

The Art Newspaper:  Corcoran merger gets DC court approval -- 

all get it wrong, but what do they know?

Why this issue is so important to the Hall Monitors I couldn't tell you (they move in mysterious ways), but, rather than get hung up on semantics, it's good to be reminded one more time what actually is happening. From the decision approving the merger takeover partnership arrangement:

"[U]nder the proposal, GW will: 1) renovate the Flagg Building so that it can continue to host both a gallery and a college of art and design in the District of Columbia; 2) establish a Corcoran School within GW that will seek to 'preserve and maintain the mission, reputation and brand' of the Corcoran, that will incorporate the Corcoran name, and that will remain in the Flagg Building in perpetuity; 3) continue to maintain gallery space in the Flagg Building even if the agreement between NGA and GW is terminated; and 4) continue to ensure that the works of art displayed in the Flagg Building remain open to the public. ... Under the proposal, the NGA will: 1) operate a Legacy Gallery at the Flagg Building, consisting of works from the Corcoran collection that are 'intrinsically identified' with the Flagg Building and the history of the Gallery; and 2) operate a contemporary art gallery at the Flagg Building, consisting of works of art from both the Corcoran collection and the NGA’s collection.... In sum, under the GW/NGA proposal, the Flagg Building will be renovated, the school will continue and be strengthened by its partnership with a financially sound university, both the school and a significant portion of the collection will remain in the Flagg Building, and a gallery, although smaller, will remain open to the public in the Flagg Building."

Call it what you will, but that's what it is.

Is GPS technology the answer for stolen art?

The Atlantic takes a look.  Apparently, only 1.5% of stolen art is ever recovered.

"Study Finds Increase in Charitable Donations by Puerto Rican Taxpayers after Charitable Contribution Deduction Limitations Were Removed"

Shocker.

Monkey (c)

In a blow to monkey photographers everywhere, the US Copyright Office has declared that photos taken by monkeys cannot in fact be copyrighted.

All joking aside, however, the more I've thought about this issue, the less obvious the conclusion has seemed. The problem with the actual case under discussion is that the photographer admitted it was an accident; the monkey just picked up his equipment and started snapping the shutter.  But imagine a photographer whose work is to leave a camera in a room with various animals and waits for them to press the shutter, or perhaps sets up tripwires in the room that causes the camera to shoot.  It's not so obvious to me that the photographer shouldn't own the copyright in the resulting photos in that situation.

"This is a significant ruling that will have an effect on museum management beyond cy prés petitions, which are relatively rare."

"The court’s treatment of deaccession as a non-starter is a judicial adoption of a principle that is codified only in the regulations of the New York Board of Regents.  That is notable in and of itself."

 Nicholas O'Donnell on the Corcoran decision.

Tell me again about the public trust (selections from The Art Institute of Chicago’s renowned photo collection edition)

Speaking of the inviolable principle that museums hold their works for future generations and they therefore must never be sold, even should the heavens fall, Phillips is about to sell 117 works from the Art Institute of Chicago's photo collection.

One.  Hundred.  Seventeen.

How can that be?

Weren't those 117 objects that, having fallen under the aegis of a museum, were held in the public trust, to be accessible to present and future generations?

Isn't this 117 opportunities -- 117!! -- for potential donors to say "Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?"

How can this be okay -- not even worthy of a mention in the press aside from the auction house's own press release -- but it's not okay for the Corcoran to sell work in order to keep from disappearing?

It can't be a matter of the public trust -- or else both sales would be wrong.  And it can't be a concern about future donors -- or else, again, both sales would be wrong.

So what is it (setting aside as possible answers "common sense" and "the coin of the realm")?  It has to be a value judgment that adding a few more works to the Art Institute's already enormous collection is more important than keeping the Corcoran (or the National Academy, or Fisk University, etc.) in existence.

But what sense does that make?

Did the Deaccession Police Kill the Corcoran?

In his decision today, the Judge noted that, "throughout this proceeding, [opponents of the plan] have argued that the Corcoran can address this [financial] shortfall by selling some of the more than 17,000 pieces in the Corcoran's collection."  But he said he was "less optimistic ... about the likelihood of success" of this proposal.

Why?  Because SANCTIONS.  "This proposal," he wrote, "has a serious downside.  It is undisputed that the AAM and the AAMD can impose, and have imposed, sanctions on museums that have sold art to pay for operating expenses."  He quotes the Director of the National Academy Museum as describing the effect of these policies as:  "sanctions, and you're dead."  "Thus," he wrote, "this Court believes there are substantial risks associated with the Intervenors' proposal to de-accession art to pay for the renovation of the Flagg Building and to pay some of the Corcoran's other operating expenses."

I hope they're happy at Deaccession Police headquarters.

BREAKING: Corcoran Cy Pres Relief Granted

Story here.  More later, after I've had a chance to review the opinion.

"In a complaint filed in federal court in Illinois ..."

". . . the three artists seek damages for the 'blatant misappropriation' of a piece they painted collaboratively in Buenos Aires in 2010."

Street artists sue filmmaker Terry Gilliam.

"Our job is to advance the best interests of the foundation and its charitable mission."

"The Robert Rauschenberg Foundation has appealed a decision by a Florida court to award $24.6 million to three trustees who had administered the artist’s estate."

"The suggestion that the art was ever at imminent risk of being liquidated without the city’s consent was merely a political expedient."

"The city used this narrative to build an artificial sense of urgency around adopting this particular solution to the exclusion of more thoughtful approaches."

Kristi Culpepper on what's really happening in Detroit.

"I think about what I did every day, and I find it hard to live with what I did because it still haunts me."

A plea deal in the Ai Weiwei broken vase case:

"Maximo Caminero, a 51-year-old artist from the Dominican Republic, will be on probation for 18 months and serve 100 hours of community service by teaching children how to paint. Mr. Caminero also must pay restitution of $10,000, the appraised value of the vase he dropped on the floor of the Pérez Art Museum Miami on Feb. 16 in what he said was a political act."

Under Fire (UPDATED)

Deborah Solomon had a big piece in Sunday's Times on the Delaware Museum deaccessioning.  Unlike some previous efforts in the paper, this one just assumes the sale is the Worst Thing Ever, adopts the AAMD point of view completely, and then proceeds from there.  (You guys, the new director of the museum can't name a work he likes in the collection.  LOL!!!!)

But when it comes to explaining why the sale is the Worst Thing Ever, we get just one paragraph: 

"Selling artwork to fund operations (as opposed to acquisitions) is widely viewed as self-defeating, like burning down your house to heat the kitchen. Museums are supposed to safeguard art for future generations, not cash in or out. And as the sale of the Holman Hunt proved, it doesn’t always go as hoped."

The third point is neither here nor there, and the second I've dealt with hundreds of times (museums do not safeguard (all) art for future generations; they sell work all the time and it's nothing to be so touchy about). But I want to focus here on the first one -- selling artwork to fund operations is like burning down your house to heat the kitchen -- because that's a talking point the Deaccession Police love to trot out but, like a lot of their other talking points, it doesn't stand up to the slightest bit of scrutiny. Selling a work of art from a museum's vast collection is not like burning down your house at all. It's more like selling, say, a fork from your kitchen drawer, or an old blanket that has been up in the attic for years, or maybe even in some cases your 52-inch flat screen television: it might really hurt, and you'd hate to part with it, but if that's what it took to keep you from losing the house, then you'd do it in a heartbeat. In none of these cases -- Randolph College, Delaware, the National Academy, etc. -- is anyone's house in danger of burning down.

But for my money, the big news came in a related interview Solomon gave with WNYC Radio in which she (a) fully endorsed the Ellis Rule and (b) came out in favor of the Randolph College deaccessioning. At around the 3-minute mark, she says:

"To me deaccessioning does make sense, though, when a museum is able to sell a painting to another museum, so that the picture stays on public view.  We had that this year when a George Bellows sold by Randolph College in Lynchburg, Virginia to the National Gallery of Art in London. It's the first time that an American painting entered the collection of the National Gallery in London. So that strikes me as a win-win situation."

Yes, it is.

UPDATE: In my haste this morning, I forgot to include the link to the radio piece. Fixed now.

If a monkey takes a selfie ... (UPDATED 2X)

... who owns the copyright?

UPDATE:  AFC comments: "Yes, this is silly, but it actually seems like this could have far-reaching impact on other photographers; after all, Gregory Crewdson, for one, doesn't press the shutter for any of his photographs."

UPDATE 2:  Ann Althouse:  "Give it up, Slater, and embrace the publicity you're getting at this, your moment of greatest fame. Move on, photograph something else, and let us like you at this point — perhaps the only point — when we know you. Surrender gracefully to the Mona Lisa of Macaques and and let everyone... everyone... smile."

Sarah Jeong:  "How is an aspiring monkey photographer supposed to make it if she can’t stop the rampant internet piracy of monkey works?"

Maybe we should try sanctioning somebody

I mentioned a couple weeks ago that the Hall Monitors didn't know how to feel about the Corcoran matter. Now, along comes Lee Rosenbaum in the WSJ to argue that the Judge should reject the Corcoran's proposal ... but at the same time she doesn't seem too impressed with the alternate plan suggested by those opposing the petition.  Or, as Hall of Famer Kriston Capps put it on Twitter: "[Rosenbaum's] Corcoran takeway:  Don't go with the NGA-GWU plan, but also don't go with the alternative?  So ... what?"

A Decision in the Rauschenberg Foundation Fee Dispute

$24.6 million to the three trustees.  Story here.  Background here.

"If the Corcoran’s preference for GWU and the NGA is door No. 1, and Maryland is door No. 3, the bold offer of help from philanthropist Wayne Reynolds — who says he already has 23 'alternative trustees' lined up — is door No. 2." (UPDATED)

Week one of the Corcoran cy pres hearing is over.

UPDATE:  Good summary of the week's proceedings from Nicholas O'Donnell.

"Two widely divergent views of the financial troubles of the Corcoran Gallery of Art ... emerged in sometimes contentious testimony in the District of Columbia Superior Court on Wednesday."

The latest, from Theodore Schleifer and Randy Kennedy in the Times.

"Anyone who thought that the Corcoran’s dissolution was a foregone conclusion would think again after yesterday’s court proceedings."

A report on day one of the Corcoran cy pres hearing.

I guess it wasn't grand enough

An interesting scoop from Nathan Bomey and Mark Stryker in the Detroit Free Press this morning:  "[C]ity officials quietly formulated a proposal in late 2011 to sell the city-owned Detroit Institute of Arts to nonprofit foundations for $550 million to create cash flow for the city, fund museum operations and transfer ownership so the art could never be sold to pay city debt.  The plan — according to records obtained by the Free Press and never publicly revealed — bears a striking resemblance to this year’s grand bargain designed to protect the DI."

Here's my question.  The collection is worth somewhere between $2.7 and $8.5 billion.  What makes $816 million the "right" number rather than $550 million?  Why not $943 million?  Or $286 million?  Or $1.35 billion (half the low end estimate)?  Where did the "grand bargain" number (816) come from?

The problem with the public trust ...

... is the public.  Why do they have to be so damn interested in seeing the works?

Michael Rushton tweets:  "If only there existed some sort of mechanism for allocating scarce goods with excess demand."

$8.5 billion (UPDATED)

That's the value of the Detroit Institute's collection according to an appraisal commissioned by one of the City's largest creditors.

UPDATE:   More from Randy Kennedy in the NYT.   Look, at this point the work could be worth $85 billion and it wouldn't make a difference to those opposed to any sale.

Interesting Sales Tax Decision (UPDATED)

(How often do you get to say that?)  It involves the dealer Richard Feigen.  He sold a painting in 2004 for $2.5 million and paid sales taxes of $215,000 to the NY authorities in 2005.  In 2011, it emerged that the painting was one of the Beltracchi forgeries.  Feigen refunded the purchase price to the buyer and applied for a refund of the sales tax.  The ruling of the New York Division of Tax Appeals:  too late.  The statute of limitations for sales tax refunds is three years from filing or two years from payment, and in either case it had long expired.  The decision is here.  The NYLJ has a story here.  Feigen vows to appeal.

UPDATE:  The NYT's Patricia Cohen tweets:  "These sorts of shortsighted rulings are unfair on their face and discourage dealers and sellers from doing the right thing."

Fair Use Update: It's still a mess

Sergio Muñoz Sarmiento flags a good student note in the Harvard Law Review on the Prince-Cariou decision. The bottom line:  "Because outcomes based on value judgments are difficult to predict, artists will struggle to conform their actions to the law ex ante, and the ultimate outcome may be a chilling effect on the creation of cultural products."  I agree.

Corcoran Update: Nine members of Save the Corcoran get standing (UPDATED 2X)

The Washington Post confirms.  The amusing thing about this one is that the Hall Monitors don't know how to feel about it.  On the one hand, they're against the proposed plan because they're against everything they care deeply about the principle of donor intent.  On the other hand, Save the Corcoran's plan to save the Corcoran involves selling a bunch of art to keep it afloat, which is the most appalling, repulsive, horrible thing anyone has ever suggested.  So they're in a quandary.

UPDATE:  A thorough analysis of what comes next from Kriston Capps.

UPDATE 2:  Capps is gunning to become the first journalist to join my Deaccessioning Hall of Fame.  (Peter Schjeldahl almost made it, but recanted his heresy before we could get the acceptance papers out to him.)  In a Twitter exchange with Christopher Knight, Capps says "There is good reason for Corcoran students to fear being absorbed by GW. Why not balance their future with non-essential works?" and then adds "Plainly, tactical [deaccessioning] can work fine."

Detroit Update: Pensioners vote in favor of Grand Bargain

Detroit Free Press story here.  This was as expected.  The real question is whether Judge Rhodes will force the other creditors to accept the deal:  "Unless the city reaches a settlement with the financial creditors — which would currently get anywhere from 0 to 10 cents on the dollar for their debt — Rhodes will have to decide whether to force them to accept cuts. The financial creditors argue that the grand bargain is illegally constructed to benefit pensioners and diminish the value of the DIA art. They want the city to consider a sale of the city-owned DIA or some of its artwork."

Who's left standing?

There appears to be some uncertainty about the results of today's hearing in the Corcoran matter.  Lee Rosenbaum reports that the AG told her standing was denied to "Save the Corcoran as an organization."  But Save the Corcoran as an organization tweets excitedly:  "Ladies & Gentlemen: We have standing. 9 of our plaintiffs were granted standing today. Trial starts Monday."

"What makes a real Matisse better than a fake? What makes any original work or art more valuable and special than a copy?"

The Guardian's Jonathan Jones:  "maybe we are at last about to enter the revolutionary age Benjamin predicted, when reproductions become so good that originals no longer have any value."

Resale Royalty Update (UPDATED)

There was a flurry of coverage of the proposed resale royalty bill this week, centered around a hearing of the House IP Subcommittee on Tuesday.  The Art Newspaper's Julia Halperin says the bill is "gaining momentum in Congress."  More here from Artnet's Eileen Kinsella and here from AFC's Henry Kaye.  Nicholas O'Donnell has his usual helpful commentary here.  Despite all the noise, however, GovTrack still gives the bill just a 3% chance of being enacted.

I've been intending to write something more substantial about this issue (maybe if the chances of enactment rise to 5%, I will), but for now there's one point I'd like to make about the current version of the bill.  Though the "smart view" of the issue is that resale royalties are a terrible idea (for roughly the reasons expressed here), I think there are strong fairness-related reasons in support of the idea.  Christopher Rauschenberg had a Huffington Post piece this week where he talked about a work his father had sold to a collector for $900 which the collector later sold for $85,000.  Now imagine a similar example where the later sale was for $8 million.  That's the art world we find ourselves in today.  I think, in a case like that, most of us would have an intuition that that is deeply unfair to the artist and, all else being equal, if there were some way for her to share in that increase in value, that would be a good and just thing.  Now, that's not the end of the analysis -- all else might not be equal and there might be disadvantages to a resale royalty scheme that outweigh those fairness considerations, but I think it's at least worth acknowledging they exist.

But here's the problem with the current bill:  it caps the royalty at $35,000.  So in our example, where the collector sells the $900 work for $8 million or $18 million or God knows what, the artist gets ... $35,000.  I suppose you could say that's better than nothing, but I'm not sure it does very much to diminish the sense of deep unfairness that attaches to the transaction.  And, without that, the bill becomes a lot harder to defend against its critics.

UPDATE:  Sergio agrees:  "If the issue is 'fairness' and just desserts, then why set a ceiling?"

"Japanese Artist Megumi Igarashi Arrested Over Vagina Kayak"

"A Japanese artist who made a kayak modeled on her vagina said ... she was 'outraged' by her arrest and vowed a court fight against obscenity charges.  Megumi Igarashi, 42, says she was challenging a culture of 'discrimination' against discussion of the vagina in Japanese society."

"The current value of the trust’s art collection, Shniberg says, is around $125 million."

Bloomberg's James Tarmy has a lengthy, interesting piece on the Artist Pension Trust, which is getting ready to start selling some work.  I guess the proof will be in the pudding, but I've long been a little skeptical for the reasons Tyler Cowen articulated here.  Cowen's bottom line:

" ... decompose the transaction.  Half of your income stream remains tied up in your own art and thus risky, minus the [28%] of course.  With the other half of your pension you decide to invest in not-yet-totally-famous artists.  Would anyone recommend such purchases on their own merits?  Is that your idea of insurance?"

"Psihoyos's arguments are entirely without merit."

Interesting copyright decision from Judge Kaplan in the Southern District regarding rights in photographs of sculpture.  Let's just say he was not amused by the photographer's arguments.

Ain't it Grand!

The WSJ:  Detroit's Water Cutoffs Spark Protests.

Wring Wring

Had a chance to read the D.C. Attorney General's brief in support of the Corcoran's cy pres request.  You can read it here.  I'll be very surprised if the relief isn't granted, but two things in particular jumped out at me as interesting.

The first is how heavily the AG leans on the deaccessioning taboo to support his position.  One of the arguments the Save the Corcoran folks make is that the museum doesn't have to close, it can sell some art to raise the money it needs to stay alive.  Oh, says the AG, if only that were possible:  unfortunately, doing so "would likely result in a loss of accreditation, and would dramatically undermine the Corcoran's reputation within the museum field."  We saw the same thing with the Barnes Foundation; they could have sold a very small number of works and raised the cash they needed to stay put.  But the big bad Deaccession Police, with their non-nuanced black and white view of deaccessioning, and their sanctions, always with their sanctions, made that impossible.

The other thing worth mentioning again -- and this is another point of similarity with the Barnes, where the entire collection remains intact and hung exactly as it was in the original location, only in a spiffy new building five miles away that's more accessible to a greater number of people -- is that you have to work pretty hard to find something seriously objectionable about the ultimate outcome here.  What will happen if we don't "save the Corcoran"?  According to the AG, the following:

"Although the proposed transactions will disburse the Corcoran's art collection to multiple museums and institutions in D.C., ... the art will remain in D.C. and accessible to the public.  Moreover, public access to Corcoran artworks should actually increase under the proposed transactions.  The art will  now be exhibited at the National Gallery, at [the Corcoran's] 17th Street building under the 'Corcoran Contemporary' name, and at other museums and institutions in D.C., which should increase the amount of Corcoran art being exhibited at any given time.  Moreover, the public will have free access to the Corcoran's art at the National Gallery and other museums and institutions ...."

In addition, the 17th Street building will continue always to exhibit work.  "This term was a necessary condition of the District's support of the Corcoran's proposed transactions, as it ensures that the 17th Street building will continue to be a 'Public Gallery and Museum' in D.C."  The building will also continue to house the Corcoran School, which will now become part of George Washington University and be known as the "GW Corcoran School."

The hand wringers will wring, because that's what they do.  But no one should really be losing any sleep over this.

Grander and Grander

The Detroit Institute announced yesterday that it has raised another $27 million towards the $100 million it pledged to contribute to the so-called Grand Bargain solution to the city's bankruptcy.  (They keep rolling it out drip by drip and I have to say the suspense is killing me.  I wonder if they're going to make it to one hundred.  It's a real nail-biter.)

Meanwhile, while I was away last week a new appraisal of the museum's collection showed it could be worth as much as $4.6 billion.  This was mostly pooh-poohed by the anti-sale side, and one method of pooh-poohing is seen in this piece by Kriston Capps.  "Ultimately," he says, "selling Detroit's art will do more for deficit reduction than for alleviating suffering."  The idea is that the money from any sale will only go to line the creditors' pockets, rather than to suffering Detroiters, and since there is an easier way to get rid of the creditors (Judge Rhodes can just stick it to them), why touch the art?

That may be so, but the more interesting question, I think, is:  what if it could?  What if it could alleviate suffering?  That's the question economist Scott Sumner addresses in this post.  He points out that "5% of $3.7 billion is $185 million a year, the annual income that ... could be generated by the midpoint of the Detroit art wealth estimate. What else could be done in Detroit for $185 million/year, forever?"  (Or, as Michael Rushton puts it, "in thinking about the ownership of a significant collection of art by Detroit (or any city), the opportunity cost of the capital should be taken into account, along with all the other costs and benefits of preserving the collection in that place.")

So yes, in this particular case, a sale of art may not do anything to alleviate suffering (other than perhaps the suffering of the creditors!), but what about cases where it could?  What about the university or museum that could be saved from closure through a sale?  Or, sticking with Detroit, Sumner also points out that they "could sell a handful of the most valuable paintings for $1 billion and keep the museum mostly intact." (I made a similar point here.)  What then?

Or does a billion dollars not do much to alleviate suffering these days?

Tweet of the Day

Actually it's from yesterday, but I'm still catching up after a week away.  From philosopher Nigel Warburton:  "Users of slippery slope arguments should take skiing lessons - you really can choose to stop."

Someone tell the Deaccession Police.  Having given up on the public trust argument, this is all they've got left.

Whatever it is, they're against it

I haven't been following the Corcoran "cy pres" story very closely, and have one foot out the door to a week's vacation, but I have noticed that the usual hall monitors are Very Upset.  And what is it they're wringing their hands about this time?  Here's Randy Kennedy's summary of the current plan:

"Under the deal announced in May, ... the defunct Corcoran would cede its collection of more than 17,000 pieces ... to the National Gallery, its much larger neighbor. The National Gallery would preserve a 'Legacy Gallery' within the Corcoran’s building on 17th Street, a block from the White House, and organize its own exhibitions of modern and contemporary art there. The much-admired building would become the property of George Washington University, which would use it for classes for students of the Corcoran College of Art + Design."

Oh, the horror.

In re Re

"An East Hampton man stands accused this week of selling over 60 forged paintings, which he claimed to be by Jackson Pollock, to private collectors and on eBay, netting him nearly $1.9 million."

Held in the public thirst

Slate.com:  Detroit Resumes Cutting Off Water to 150,000 Residents, Prompting Appeal to United Nations for Help.

I don't believe that's dealt with in the Grand Bargain, but maybe it's in the fine print.

"Both sides have now delivered their arguments and await the decision of Judge Jay Rosman of Lee County Circuit Court."

The Art Newspaper's Charlotte Burns has the latest on the Rauschenberg Foundation fee dispute.

More Sanctionier

Carolina Miranda joins Lee Rosenbaum in calling for even tougher sanctions for museums that "pawn off works held in a public trust."

Guys, I think I have the solution to this problem.  Two words:  Capital.  Punishment.  If a museum board votes to pawn off works ... off with their heads!

Are you with me?  Or are you ready to concede that I care more about art than you do?

(Keep in mind, though, that it's perfectly fine to pawn off works held in a public trust ... as long as the proceeds are used to buy art.  That kind of pawning off is fine.  No sanctions necessary.)

Big Bucks

Georgina Adam has a new book out.  The subtitle is "The Explosion of the Art Market in the 21st Century."

"Why commission original public art when you can steal an artist’s idea and outsource the work to China?"

Ben Davis on a $450,000 jury verdict against California real estate tycoon Igor Olenicoff.  (Davis says it's for "trademark infringement," but the underlying report to which he links says it was copyright infringement, which makes more sense.)  More from the Daily Beast's Justin Jones here.  Tom Flynn has been all over this story from the get go.  He says "[t]hankfully there are still a few lawyers willing to fight the oligarchs and the billionaires who would otherwise ride roughshod over artists' moral rights."

"Some say that the government’s ignorance is to blame for the recent failures in upholding the scheme."

Rachel Corbett in The Art Newspaper:  Percent for Art schemes fail to deliver.

Though the choice to sell was a difficult -- indeed agonizing -- decision, and a problem that does not admit of easy solutions ...

. . . the AAMD has, with regret, gone ahead and sanctioned the hell out of the Delaware Art Museum.  (Though when you read their statement, the regret part doesn't really come through so much.)

Lee Rosenbaum mocks their pathetic "whining" and calls for even tougher sanctions ("AAMD should try to convince major foundation and government funders that museums violating professional standards are unworthy of their support").  Because, after all, an important principle is at stake.

What is that principle again?  Oh yeah, the public trust -- I mean, "common sense."  (Or is it the sanctity of the coin of the realm?)

Speaking of the public trust, I got a chuckle out of the AAMD's latest statement, which includes the following line:  "With this sale, the museum is treating works from its collection as disposable assets, rather than irreplaceable cultural heritage that it holds in trust for people now and in the future."

But am I dreaming or were we not told a week ago that this is "not a matter, as is often claimed, of protecting the public trust"?

Well, what difference does it make, really, what it's a matter of?  Public trust, common sense, coin of the realm.  Whatevs.  The important thing is someone needs to be sanctioned and sanctioned hard ... even if we're not quite sure why.

"Note to Forgers: Don’t Forget the Spell Check"

"Newly released documents in a continuing civil case show that at least one of the works bought in 2000 by Ms. Freedman herself contained a prominent clue that something was awry. The artist’s signature was spelled incorrectly: Pollok instead of Pollock."

"After Much Debate, Picasso Curtain Will Be Moved From the Four Seasons"

New York Times story is here.  Background here.  I didn't follow all the ins and outs of this one, but it seems like a win for Aby Rosen:  he wanted to move it, and it's moving.  Or, as Paul Goldberger tweeted, "I thought it was too fragile to move?"

There's The Rub

Former AAMD president Timothy Rub has a piece in the Wall Street Journal today on the Delaware Art Museum deaccessioning.

This follows a piece he had a couple of months ago in the Delaware News Journal.  Back then, it was a "difficult -- indeed, agonizing -- decision."  Now things seems to have gotten less difficult and agonizing:  the new piece is headlined "A Dereliction of Duty" and expresses no doubt that the "decision was ill considered."

But the big news is that it's "not a matter, as is often claimed, of protecting the public trust."  That's good to know; I will keep that in mind for the future.  But before we move on, let me just ask:  who often claimed it was a matter of protecting the public trust?  Search this blog and you will find dozens of instances of the AAMD and other members of the deaccession police often claiming that it's a matter of protecting the public trust.  (A few are collected here.)  I'll be thrilled for them to drop this talking point, but let's at least be honest about the history.  We've always been at war with Eastasia.

So if it's not a matter of protecting the public trust, what is it a matter of?

The answer is ... common sense.  It's a matter of common sense.  Obviously it's okay for museums to sell work and use the proceeds to buy art but not okay to sell the same work and use the proceeds for any other purpose.  That's just simple common sense.

Actually, here's the whole answer:  "it's about common sense.  You don't cut out the heart to cure the patient; and yet this was the remedy chosen by Delaware's trustees to restore their institution to good health."  They "seem not to have understood their broader responsibility to care for all of the museum's assets -- most significantly, its collection."

Wow.  Where to begin with this?

First of all, the heart/patient analogy doesn't work at all.  Here's the thing about cutting out a patient's heart: if you do so, he will die.  The Delaware Art Museum is not going to die because it has 12,498 works in its collection instead of 12,500. The Detroit Institute would not die if it had 5% fewer works than it now has.  It may not be the same, it may even be significantly diminished, but one thing it will not be is a patient with his heart cut out.

In fact, doesn't it make more sense to see the trustees as having precisely understood their broader responsibility to care for the museum's assets?  Isn't that exactly what they take themselves to be doing with this sale? Here's what the museum's CEO had to say when the decision was announced:

"After detailed analysis, heavy scrutiny and the exhaustion of every reasonable alternative to relieve our bond debt, the Trustees had two agonizing choices in front of them -- to either sell works of art, or to close our doors."

Now, you may disagree with the choice they made, but does that sound to you like a board that has not understood its broader responsibility to care for the totality of the museum's assets?

There's more to discuss in the piece, but this post has gone on long enough already, so I'll stop here for now. I'm just amazed that these are the best arguments they can muster for a piece like this.  He should have at least mentioned the coin of the realm.  That's just simple common sense.

Crafty

More contributions flowing in to the grand bargain today.  And with them, a possible answer, from Mark Stryker of the Detroit Free Press, to my question yesterday -- why bother with the grand bargain at all?  Why not just tell the creditors to pound sand?

"[T]he rush of corporate and foundation gifts this week reinforces the clever structure and broad appeal of the grand bargain .... By linking support for the DIA to concern for pensioners, the deal makes it possible for a diverse set of third parties to contribute to the city’s recovery in ways that are palatable. Foundations whose missions typically preclude bailing out municipal debt can justify supporting the DIA. Meanwhile, politicians in Lansing who might be squeamish about supporting the arts know that all of the money contributed to the grand bargain will go to pensioners" (my emphasis).

It is very clever, though, as I pointed out yesterday, there is a potential downside.

We’ve already established that. Now we’re just haggling over the price.

The big news out of Detroit yesterday was the announcement that the Big Three automakers have pledged $26 million towards the "grand bargain" to save the DIA's collection.  I may not have been that impressed with their legal papers, but the museum's PR game is beyond reproach.  As Matt Helms and Mark Stryker point out, the grand bargain didn't grow at all with this announcement; instead, this represents part of the $100 million the DIA had already committed to raise towards the deal.  But it's very shrewd of them to trumpet this as a great success, and to create a sense of inevitability about the whole thing.  Well played.

It's always struck me, though, that there is an inherent tension in the whole idea of the "grand bargain."

On the one hand, we keep hearing that the collection is off limits to creditors.  As the attorney general has told us, and the museum has told Judge Rhodes, the works are held in trust.  They cannot be reached by the creditors.

But if that were really true, there wouldn't need to be a grand bargain.  The grand bargain, you'll recall, "brings together the equivalent of $816 million from national and local foundations, the DIA and the state of Michigan to spare the museum’s collection from a possible sale."  In essence, it's a sale of the museum's collection to a new, independent nonprofit for $816 million.  But what makes that the right number?  We know that the collection is actually worth a great deal more than that.  Doesn't the existence of the grand bargain make it easier for the creditors to come in and say, "Look, everyone -- even the museum itself -- acknowledges that the art isn't really held in any sort of legally cognizable trust, it cannot simply be removed from the bankruptcy process, there has to be a price to the removal ... and this price is too low.  There are people out there who will pay twice that amount and the bankruptcy trustees have an obligation to explore those higher offers."

Now, it may be that Kristi Culpepper is right that there is no way Judge Rhodes is ever going to rule that the art must be sold to the highest bidder.  But in that case, why bother with the grand bargain at all?  Then you're paying $800 million for an asset that's already yours.

"[A] potentially far-reaching decision ... that allows the victims of Nazi-related looting and their heirs to press ahead with legal efforts to reclaim stolen artwork."

I don't usually cover Holocaust restitution cases here at the blog, but I did write about the Norton Simon Museum lawsuit for the Journal of Art Crime a couple years ago so thought I'd mention the latest development in the case.  The NYT's Patricia Cohen has a report here.  The LA Times is here.  Nicholas O'Donnell comments here.

"Authoritative authentication is essential to a well-functioning art market, the bill's sponsors maintain."

Tracy Zwick has a good piece in Art in America on the proposed authentication legislation in New York.  I'm quoted as saying I don't think the legislation would be a game-changer, and here's why.  Suppose you're an authenticator thinking of speaking up in some future Knoedler-type situation.  You know that, if you do so, you may end up getting sued.  Under this proposed legislation, you might be a little more willing to do so, because you can recover your legal fees if you successfully defend the lawsuit ... but what if you can't?  What if the person who sues you doesn't have the million dollars (or more) you had to lay out to defend the suit (not to mention all the time and stress and aggravation that being in a lawsuit inevitably entails)?  And what if, heaven forbid, you lose the lawsuit?  It can happen you know; there are no guarantees when it comes to litigation.  Now you're looking at the possibility of a multi-million dollar verdict for disparaging that Pollock or Warhol or Basquiat.  When you add it all up, aren't you (probably) still going to keep quiet?

Trust Me

With Detroit's "grand bargain" sweeping ahead, and the art seemingly safe, I finally got around to reading the DIA's motion papers arguing against any sale.  I wasn't as impressed with them as Nicholas O'Donnell was (though I thank him for the kind words about me).  It struck me as the kind of brief where a lot of dust is kicked up in the air, but when you try to grasp onto an actual argument, it isn't quite there.  In general, I find the whole notion of works being "held in trust" to be unhelpful to the debate.  You think it's a bad idea to sell the work, that the harmful consequences of doing so would outweigh the good -- then say so, make your case.  Introducing some imagined or implied "trust" feels to me like stealing a base, a way to cut off debate.  But that's a longer argument for another day.  For now, I just want to mention a couple of things from the museum's brief.

First, it argues that "it would be dishonest, immoral, and indecent for the City to attempt to claim the right to sell any property for its own benefit that the City represented the Museum would hold for the Public benefit."  But a couple pages later, they acknowledge that the "City retains legal title" to the work.  So who is this "Public" (with a capital P for some reason) for whose benefit the City is holding the work?  In this case (where the City owns the work), wouldn't it make more sense to say "the City holds the work in trust for the benefit of ... the City"?

Or is it always some other, imaginary capital P public that the work is being held for?

Second, if the works are truly held in trust -- not in a vague, poetic AAMD way, but in an actual legal trust that you are telling a federal bankruptcy judge prevents their sale -- then who gave the museum the right to sell works Whenever It Goddamn Feels Like It so long as the proceeds are used to buy more work?  So not only do they invent an imaginary trust, they then invent imaginary terms for the imaginary trust.  Of course one of the imaginary terms of the imaginary trust is that the imaginary trustees are empowered to sell off assets of the trust any time they want as long as they happen to follow the "ethical" guidelines of the major museum associations.

Imagine that.  What a lucky coincidence.

"It makes pensioners as whole as possible and protects the Detroit Institute of Arts from having its artwork seized and sold off."

Detroit News:  Detroit's 'grand bargain' sweeps ahead.

Grubby Reality

I missed this before the weekend, but apparently a more "comprehensive" appraisal of the Detroit Institute's collection is underway as part of the bankruptcy proceedings.  Randy Kennedy has the story here.  (On the previous, less comprehensive appraisal, see here.)   In a series of tweets (which I'll string together here), Kristi Culpepper says:

"Everyone's getting worked up about [Judge] Rhodes asking for arguments about whether court can force city to sell non-core assets. It's a formality. Rhodes will rule that this is not the case for two reasons: (1) He tends to go against capital markets creditors no matter what. (2) The 10th Amendment of the US Constitution limits the court's power over the municipality in obvious ways. Namely, court is not permitted to interfere with the property or revenue of the municipality (i.e., force sale without govt's consent). The court cannot force the sale of the art or other 'non-core' assets anymore than it can force the city to raise taxes."