"The good news is that after a years-long battle and a lot of legal costs, she finally won."

Daniel Grant looks back at the Crile decision:  "Are You Really an Artist? It’s the IRS Who Actually Decides."

"Christie’s, Sotheby’s and eBay are now demanding to have their legal bills repaid ..."

". . . after twice beating class action litigation aimed at forcing them to pay royalties to artists under California’s art resale law."

Background here.

"'Sotheby’s was not involved with Bouvier’s resale of the Salvator Mundi to Rybolovlev and it derived no financial benefit whatsoever from the sale,' the complaint states." (UPDATED 2X)

A preemptive strike by Sotheby's relating to the Rybolovlev-Bouvier battle.

UPDATE:  More from the Times.

UPDATE 2:  More from Bloomberg.

Fixation

ARTnews has an interesting series of contributions on the question how to fix the art world (part 1, part 2).  Some of the responses touch on art law issues, including these suggestions from Christy MacLear of the Rauschenberg Foundation:

"Copyright:

"Set them free. Images for scholars, teachers, museums, and stewards. Images to be reused creatively by other artists. Even fair use comes with fear and some still seek a free pass or approval. Stop asking—start using—go forth and flourish. Share smartly and avoid a fear of legal retribution; we all trust you. Use art to teach and share knowledge or inspiration. We love more people loving art.

"Deductibility:

"Gifts of art to charities propel our culture but inure no direct benefit to the artist. ... An artist’s contribution to society must be recognized for more than simply the value of raw materials. Art must be valued as a donation equally for the creator as it is for the collector. Wealth and tax equality for all."

Christie’s Ned Schefer has excellent taste in online reading material

As evidenced here.

"The hits keep coming, but Prince doesn't seem to care."

artnet's Eileen Kinsella has a report on the latest Richard Prince lawsuit (including a quote from my post yesterday).

VAT insanity

Norway edition.

Deja Vu All Over Again

Another lawsuit against Richard Prince.

Here is a previous example.  And another.  And another.  I'm probably missing some.

This is why I called the Second Circuit's Prince-Cariou decision a "missed opportunity."  Nobody has any idea what's fair use and what's not in the fine art context.  Prince-Cariou could have helped clear that up; instead, it made things worse.

The jig is up, the news is out

I'm honored to be included on this list of art law renegades from Sergio Muñoz Sarmiento.

"Stripping Is Not Performance Art, Nor Tax Free"

Says New York's Appellate Division.

Motion to Dismiss Denied in the Jeff Koons Gazing Ball Lawsuit (UPDATED)

Dan Duray has the story here.  Background here.  More after I've had a chance to read the decision.

UPDATE:  "The case is a reminder that big ticket transactions in the art world, which can be tricky affairs even when dealing with unique works, are more convoluted when involving editions or multiples to be manufactured by an artist."

Picasso electrician update

"He now claims that the works were given to him in a rubbish bag by Jacqueline, after the artist’s death."

Background here.

"French law forbids national museums from selling anything in their collections, unlike many museums in the United States, which can de-accession works."

Did American museums' promiscuous deaccessioning practices contribute to the decision by Spencer and Marlene Hays to leave their incredible collection to France?

Maybe some day American museums will understand that they hold their works in the public trust, to be accessible to present and future generations, and they shouldn't be sold off in the normal course.

"In the art market, repeat sales account for a fairly small fraction of total sales. ... Thus, any art index based on repeat sales—such as the Mei-Moses index—is unlikely to be considered representative of any market segment."

Sotheby's has bought the Mei Moses art index, for an undisclosed price.  I'm with Columbia Business School's Arturo Cifuentes, quoted in the header above.  As Felix Salmon put it several years ago, the index is "a creature of massive survivorship bias. The Mei Moses index looks at auction pairs: works of art which have been sold at auction twice. This method gives a very good idea of what has happened to the value of any given work of art over time, but it’s a very bad way of determining what has happened to the art market as a whole, since the kind of works which get auctioned multiple times are decidedly not representative of the broader art world."

"The score was settled thanks to outraged posts on social media."

artnet:  Vivienne Westwood Accused of Plagiarizing Artist’s Design.

Given what's in the story, I don't think the "accused of" is necessary there.

2017 National Cultural Heritage Law Moot Court Competition

Details here.

Tell me again about the public trust (nearly 70 antiquities originally from Egypt and other countries edition)

The Toledo Museum of Art is selling.  Don't be alarmed by the fact that "modern international cultural heritage laws make it impossible to acquire such antiquities, meaning the Toledo museum is unlikely to ever be able to replace the objects if leaders would choose to do so."

It's not like those nearly 70 objects, having fallen under the aegis of a museum, were held in the public trust, to be accessible to present and future generations.  That's a totally made up thing. No one ever says that.

"New Authentication Lawsuit Filed Against Agnes Martin Catalogue Raisonné"

Nicholas O'Donnell has the details, and a preliminary analysis.  The complaint is here.

Another example of the indeterminacy of fair use

Courtesy of Clancco. Southern District said fair use on motion to dismiss. Second Circuit disagreed.

As I've said, no one has any idea.

"Whatever its fate, the tale of the contested Monet shows that the world of art dealing is as opaque as any pondscape."

Kelly Crow in the WSJ:  Art Dealer Claims Monet in 1MDB Scandal.

"But now he says all 24 of the Golubs he bought from the Gascards are fake."

Graham Bowley reports in the Times on a lawsuit filed by Wall Street trader Andrew Hall against an art history professor and her son.

The problem of the art market is how do you build a set of legal rules to govern a marketplace where even the most sophisticated participants (the Times notes that Hall was "capable of earning a $100 million bonus in a single year," has amassed a collection of 5,000 works, and has his own private museum) can't tell the difference between the real and the fake?

A related story is unfolding here.

And an interesting observation from Blake Gopnik:

"There’s one other take-home from all this ...: Any case where science does need to be invoked is a case where the forgery is so good, and so very like what we expect from the artist in question, that it does all the aesthetic work that an original would. And that means the fake can happily be folded in with the real works we know, without doing much harm at all or even making much of a difference. ... Any time expert eyes can’t agree on whether a picture is real or fake—or when it turns out that they all agree that a fake is real—they are actually letting us know that it’s a case that’s barely worth resolving."

The "transformative" gift to MoMA ...

... from the Cisneros Collection gives me a chance to re-up this piece from last year:  What culture? What public?

More on the Shvo indictment

From ARCA here.  The Real Deal here.  Background here.

"Today I put myself forward as a candidate for the 2018 election."

Tania Bruguera is running for office in Cuba:

"Pushing barriers has been Ms. Bruguera’s signature. She made waves in December 2014 when she attempted to stage an open-mike performance in one of Havana’s most emblematic plazas, a gesture for which she was arrested and had her passport confiscated for several months."

"Some observers warned that if decided in Hoffman’s favor, the case could have meant that legal agreements ensuring a transaction’s secrecy could be used to effectively prohibit future sales of the art they governed."

Isaac Kaplan at Artsy on the Marguerite Hoffman confidentiality lawsuit, discussed last week here.

Why do (some) museums prohibit photography?

Five reasons.

News you can use

Artsy:  What It Takes to Recover a Stolen Work of Art.

"Courts and the U.S. Copyright Office have been pretty resistant to the notion that the design of letters is copyrightable."

The Wall Street Journal has more on the Dash Snow estate's claim against McDonald's.

Should the U.S. adopt a payment-in-kind income tax program for artists?

This law review article by Julia Bogdanovich argues no.  (h/t)

"The Frans Hals Revelations Cast Doubt on Both Technical Expertise and Connoisseurship"

The Art Market Monitor on the recent news that Sotheby's has reimbursed the buyer who purchased a painting attributed to Frans Hals for $10 million.

"Yet another major clothing company is facing allegations that it stole the work of an independent artist without permission or payment."

Artsy:  Kohl’s Is the Latest Fashion Retailer Accused of Stealing an Artist’s Work.

"Dash Snow’s Estate Sues McDonald’s for Copyright Infringement"

Carey Dunne has the details at Hyperallergic.

"The suit claims Oremland violated professional boundaries and induced a patient, John Pierce, to give him at least a dozen rare works of art by masters such as French modernist Henri Matisse and Italian Renaissance artist Raphael."

KQED:  Art and Psychiatry On Trial: The Strange Case of Pierce v. Oremland.

"A Civil War painting that shows a soldier carrying a Confederate flag into battle will be displayed at the Big Fresno Fair, averting a First Amendment showdown this week in U.S. District Court"

Story here.  Background here.

The Fifth Circuit brings some sense to the Marguerite Hoffman breach of confidentiality lawsuit

This has been going for for six and half years.  Background here, here, and here.  Briefly, Hoffman sued collector David Martinez and L&M gallery for breach of the confidentiality clause in the sale of a Rothko.  The District Court threw out the claims against Martinez, but let stand a $500,000 verdict against the gallery.  (Hoffman had reportedly sought more than $22 million.)  The Fifth Circuit has now thrown out the verdict against the gallery too.  You can read the decision here.

There were always three things that struck me as really odd about the case.

First, my very first reaction to the claim, way back in 2010, was to note the strangeness of the core claim "that, because Martinez agreed to keep the transaction confidential, he could never re-sell the work. That is, he is said to have breached the confidentiality clause not in the usual way such clauses are breached -- i.e., by blabbing about it -- but by the mere act of selling."  The Fifth Circuit refuses to read the confidentiality provision as "permanently prevent[ing] the public sale of the [work]."

Second, I never understood the damages theory in the case.  Hoffman's theory seemed to be that her damages were the amount she "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."  The Fifth Circuit rejects this "auction premium" theory as hypothetical and speculative.

And last, the lawsuit always seemed to be, as The Art Market Monitor put it, "self-defeating."  If the concern was to not draw attention to the fact that Hoffman sold the Rothko ... well, here we are six and a half years later still talking about the fact that Hoffman sold the Rothko.  I would also assume that the legal fees for six and a half years of litigation were not insignificant.

In any event, the end at last of a pretty bizarre case.

"In other words, when you donate your painting to the auction, you get karma, joy, and societal good, but you get zero tax deduction."

Hannah Cole:  Can I Get a Tax Deduction For the Artwork I Made? Short Answer, No.

Brian Frye on the Detroit Bankruptcy

Self-recommending.  It's not primarily about the museum association deaccessioning rules, but I am naturally drawn to paragraphs like this:

"And yet, it is unclear why it is 'ethical' to sell artworks in order to buy artworks, but 'unethical' to sell artworks for other purposes. For example, under the AAM and AAMD guidelines, it is 'unethical' for an art museum to sell a work of art in order to avoid bankruptcy. As a consequence, art museums facing financial crises have been forced to close, when the sale of a single artwork could have covered their expenses. Most recently, the Corcoran Museum of American Art found itself in precisely this situation, and we lost an American institution. Would it really have been 'unethical' for the Corcoran to have sold an artwork in order to maintain its existence? Would it really be 'unethical' for a museum to sell an artwork from its collection in order to provide free admission? Would it really be 'unethical' for a university art museum to sell an artwork in order to provide scholarships?"

Yes, would it?

"There are now three lawsuits claiming that Leigh Keno or Leslie Keno and/or one of their companies have not paid their auction house bills."

Details in the Maine Antique Digest here.  At least one involves allegations of shill bidding. Background here.

"That I would be able to ever pronounce these words is something I had no longer dared to hope for." (UPDATED)

NYT:  2 van Gogh Paintings Stolen From Amsterdam Are Recovered in Italy.

UPDATE:  Jonathan Jones:  Gangsters' use of paintings as currency shows a profound belief in art.

Met lays off 34 employees (UPDATED)

Story here.

UPDATE:  There's also this:  "The museum also expects to reduce the number of annual exhibitions over the next few years, perhaps to 40 from 55."  That's fine; just remember it's a choice.

Michael Rushton on whether museums should provide free admission

Self-recommending (even without the interesting detour into deaccessioning).

"Are museums for sale?"

A big thank you to the Art, Cultural Institutions and Heritage Law Committee of the International Bar Association for including me as a panelist in yesterday's session:  Are museums for sale? The role of the private collector and corporate sponsor.  (I was on Panel 1 -- "Will de-accessioning be the new normal?"  To which my basic response was/is:  isn't it already the new normal?  Haven't we been told it shouldn't be such a touchy subject?)

"[Negishi] has intervened in some areas of my paintings, but the intellectual authorship of the works is mine."

Via Clancco, news of a co-authorship claim in Spain by a former studio assistant of the artist Antonio de Felipe.  I don't know what the story is in Spain, but the problem with this sort of claim under U.S. law is that co-authorship requires that the parties intended to be recognized as co-authors, and that's obviously not the case in most artist-studio assistant situations.

Getty Images moves to dismiss Highsmith lawsuit

Story here.  Background here.

"Of course, I’m pleased by the verdict. But it was a horrible thing to go through.”

Peter Doig talks to The Globe and Mail about his recent trial:  "It took up so much time and energy not to mention, of course, money."

He believes the "larger take-away" from the case is that "a living artist should be the first and last authenticator."

But what about the possibility that an artist might be mistaken, or dishonest?

"'Sometimes, of course, there may be an agenda' – a disputatious ex-lover, 'someone the artist had bad dealings with – and they may say, "I didn’t make that work." But that is so, so rare, I think.' Most people, Doig said, would 'just take it on the chin and say, "Yeah, I did do it."'"

Marie Dooley says the case "demonstrates that authentication, even by the living artist himself, can prove to be a costly endeavor for all parties involved."  Exactly.

"Art collector ... Michael Shvo has been indicted by the Manhattan District Attorney for tax evasion related to a scheme to avoid sales tax on expensive art purchases." (UPDATED)

Story here.

UPDATE:  More details on the alleged scheme here.  And here:

"The DA said that between 2010 and 2016, Shvo falsely told auction houses that purchases he made would be shipped to an out-of-state address in the Cayman Islands or other foreign countries, thus avoiding sales tax. Instead, they went to his offices and homes in New York state.... Two moving companies, Hedley’s Inc and Bestguy Moving, are also charged with participating in the scheme.They allegedly provided the auction houses and galleries with improper shipping documentation to conceal the delivery destinations. Shvo is even alleged to have fraudulently used New York Resale Certificates, which allow art dealers to purchase items exclusively for resale without paying tax."

"Sentences handed down in high-profile case over Drouot thefts"

The Art Newspaper:  "[T]he Paris Criminal Court convicted 38 of 49 defendants in a high-profile trial that opened in March over a complicated web of thefts within the [UCHV], the former art handlers’ union of the Hôtel Drouot in Paris. The group ... held a monopoly on art handling at the auction house from 1860 until 2010."  Background here.

"If a living artist has to endure years of expensive litigation and a full-blown trial to defend their position on whether they authored a work of art, what hope do experts, who are usually brought in to opine on authorship once an artist has passed away and can no longer vouch for their work, have?"

"On the other hand, it’s also not unheard of for an artist to try and disavow a work that they created for reasons of personal animus or because they no longer wish to be associated with the work."

"We might be sympathetic to a plaintiff in the case of a different set of facts."

So said Amy Adler in response to the recent Peter Doig case.

Hazel Rowland collects some examples of different sets of facts here.

Are we sympathetic?

"It is impossible to talk about the case without making it sound ridiculous; indeed, it *is* ridiculous, as in 'an exceptionally easy target for ridicule.'"

America’s only known primatologist-turned-copyright-law-professor weighs in on the monkey selfie case:

"There are many reasons that copyright law does not and should not deem Naruto to be an 'author,' ranging from the purely practical (e.g., How do we know the monkey’s name is 'Naruto,' and that he was the one that snapped the photo? What if no human had been there to see him do so — is there still a copyright, and does he own it? Insofar as copyright in a work endures for the life of the author plus 70 years, who’s keeping track of this wild macaque’s lifespan, and how will we know when it’s over?) to the more abstract: Copyright’s fundamental rationale is that bestowing protection on works is a means of providing 'authors' with an incentive that they otherwise would not have to create those works in the first place; non-humans (and machines, for that matter) can’t be 'authors' because they won’t be and can’t be incentivized by the existence of copyright protection for their works."

California bans painting depicting Confederate flag from County Fair art show

The Center for Individual Rights objects.  So does the LA Times editorial board.

“[T]he move to the transformative analysis, thought by many to be the solution to fair use woes, has actually made things worse for the visual arts.”

Speaking of excellent points by Amy Adler (who by the way co-teaches the best art law seminar in the world), she has a terrific new law review article out:  Fair Use and the Future of Art.

I’ve never thought the transformative test was remotely helpful either.

And one more interesting recent Adler piece here.

"No longer is it prudent to leave a body of work to one’s next of kin and hope for the best."

The Financial Times:  How an artist's legacy became big business.

Related:  What Artists Should Do to Protect Their Legacies before Dying.

Another "what we learned from the Knoedler scandal" story

This one from Laura Gilbert in The Art Newspaper.

A previous example here.

I continue to think the answer is "not much."

Weighing In

Artnet collects reactions to the Peter Doig case from various experts, all interesting and very much worth reading.

Amy Adler makes an excellent point here:

"[L]et’s say Doig had lied. I don’t think VARA gives you a right to disavow a work you actually created, unless it’s been significantly modified. In defense of the theory of the lawsuit, there may be circumstances where an artist does lie and could with one word wipe out $10 million of value; what recourse does an owner have under those circumstances? We might be sympathetic to a plaintiff in the case of a different set of facts."

Relatedly, there seems to be a sense, in some of these pieces and elsewhere, that the Judge in the Doig case set a bad precedent, or made life more difficult for artists going forward.  I don't think that's quite right.  All this case did was expose the risks to artists that were already there.  Before the Doig case, an artist who denied the authenticity of his work faced the possibility of a lawsuit.  After the Doig case, an artist who denies the authenticity of his work faces the possibility of a lawsuit. Nothing has changed.  This was always dangerous territory, as Doig sadly found out.

Another Richard Prince lawsuit

The Art Newspaper's Julia Halperin has the details, including that "[u]nlike the plaintiffs in the previous cases, Salazar—who posts to Instagram under the name @mynxiiwhite—is not a professional photographer. According to her website, she is a makeup artist who has toured with Kanye West and Kelly Clarkson as well as a model who has appeared on the cover of Elle Japan and Vogue Italia."

"As one of my former Corcoran colleagues said about the two case studies, ‘The Corcoran is dead. Delaware lives.'"

The Washington Post's Peggy McGlone had a story last week on the demise of the Corcoran Gallery: Homeless art, lost jobs and low enrollment: Two years later, Corcoran's breakup still stings.

Two years ago, when this was all going down, I asked:  Did the Deaccession Police Kill the Corcoran?

It seems that's exactly what ended up happening, as Tim Schneider explains:

"I'm chiefly appalled by how the US's economically ludicrous museum standards factored in. Whether their fear was authentic or simply a smoke screen for what sounds suspiciously like an inside job, the trustees reportedly opted for this plan partly because they knew they could not sell any of the Corcoran's assets to raise money for operating expenses without being institutionally waterboarded by both the [AAM] and (although McGlone doesn't mention it) the [AAMD]. For the uninitiated, the sacred standards of these organizations decree that museum holdings can only be placed on the market to fund new acquisitions, not grubby terrestrial line items like, you know, staying solvent. Case in point: The AAM excommunicated the Delaware Art Museum in 2014 for selling select works from its collection to pay construction debts on a major architectural expansion, while the AAMD imposed major sanctions for the same supposed offense. But as Delaware's chief executive points out to McGlone, the DAM survived its exile and is now thriving. The Corcoran, on the other hand, effectively reduced itself to a zombie institution willingly serving up its limbs to scavengers. All of which underscores the American nonprofit sector's illogical orthodoxy on de-accessioning: Preserving the supposed sanctity of a museum's collection is meaningless if the institution has to die for the cause. And if you ask me, it's far more barbaric to give the public an honor killing than a museum where art and business are allowed to sensibly mix."

Well said.  And speaking of Schneider, he, and friend of the blog Brian Frye, will be taking part in a panel discussion tomorrow night at WhiteBox in New York on the intersection between art, technology, and business.

BREAKING: Doig Wins (UPDATED)

The New York Times:  The Artist Peter Doig Wins a Case Involving a Painting's Attribution.

But of course, nobody really won here.

UPDATE:  More here from artnet's Dushko Petrovich.  He closes with a quote from one of Doig's dealers:  "It is our hope that this verdict will have at least one good outcome—that artists maintain the unfettered right to authenticate their own work."  Unfortunately, I don't think that's the case.  If an artist had the unfettered right to authenticate his own work, the case would have been dismissed earlier; it would never have come to trial.  Instead, what happened here is that the court treated the artist just as any third-party authenticator:  the ruling was that he happened to be right about the facts in this instance (i.e., the painting was by Doige not Doig).  But if he had been mistaken about that -- if he misremembered, or the status of the work was more ambiguous (say Doig had painted it while a teenager but he didn't regard it as a legitimate work) -- the outcome could have been different.  So I don't think artists should be especially heartened by the decision.  The case still stands as a warning that an artist who disclaims authorship of a work -- even on facts as ridiculous as these -- faces the possibility of thousands of hours of wasted working time and stress and hundreds of thousands of dollars in legal fees.

Still monkeying around

The Washington Post reported last week that, in the Monkey Selfie appeal, a "prominent anthropologist at the University of Notre Dame" has filed an amicus brief arguing that "[t]here is no dispute that Naruto created the images in question. Naruto is, therefore, the author."  That misses the point, I think.  That's a scientific conclusion.  The question in the case is a legal one:  does it make sense to consider animals to be authors in order to achieve the purposes of the Copyright Act?  On that question, Mike Masnick and Jordan Weissmann have the better of the argument.

"And so now, Von Saher will likely head to the Ninth Circuit for the third time, and the case will pass into its second decade."

I don't generally cover a lot of restitution stuff, but I did write a piece for the Journal of Art Crime on the Norton Simon-Von Saher case a few years back.  Nicholas O'Donnell reports that the museum recently won a "stunning" victory on summary judgment.

Deja vu all over again

The Art Newspaper reports that the Artist Pension Trust has made its first distributions to participants.  That's nice, but it's also at least the third time in the last six months that I've read this story.  Here's the New York Times back in March.  Here's ARTNEWS in June.  Some background here.

Lawsuit Over Koons Gazing Ball Sculpture

Stories by Dan Duray here and Brian Boucher here.

"What Happened on the Last Day of Peter Doig’s Ridiculous Trial"

artnet's Dushko Petrovich has you covered.  Another report here.

"Those fateful seconds, however, have resulted in what Doig called 'thousands of hours' of wasted working time and stress."

I was away last week, but the big art law story continues to be what artnet news rightly calls the "bizarre" authentication trial against Peter Doig.  You can read their account here.  Background here.  Deborah Solomon says the case "amounts to artist harassment."

That seems clearly true, but, to my mind, the lesson of the case is that anytime anyone (including the artist who supposedly made it) denies the authenticity of a work of art, they run the risk of incurring thousands of hours of wasted working time and stress ... not to mention who knows how much in legal fees.

The trial was scheduled to resume today.  I'll post further updates as they appear.

"Retroactive extensions of copyright throw the entire reasoning behind copyright into reverse."

Alex Tabarrok on copyright protectionism.

Does VARA need to be updated?

I'm quoted in this piece on the subject in the Observer.

"The denial sets up a likely appellate court battle that could determine the fate not just of the plaintiff artists’ resale royalties, but of the underlying statute."

Los Angeles Business Journal:  "Trial Judge Denies Artists Request to Reconsider Royalties Decision."  "While the law has been trimmed by an appellate court ruling last year, Fitzgerald’s decision, if upheld by the 9th U.S. Circuit Court of Appeals, could effectively moot the entire statute."  Background here.

Getty Images Lawsuit

The billion dollar demand may lead you to think of the recently-filed lawsuit against Getty Images as less than serious, but it's not a joke at all, it raises some very interesting issues.  Read about it here. Here is a link to the complaint.

The selfie monkey is appealing

Story here.  Appropriate reaction from Mike Masnick here.  Background here.

Is a copyright small claims court a good idea?

Kevin Smith doesn't think so, at least not in the form envisioned by the recently introduced CASE Act:  "I think that the proposed legislation would make it easier for Big Content, and especially for the copyright trolls who are often their vanguard, to bully ordinary individuals and increase the phenomena of copyright enforcement by fear, rather than through the law."

Another risk of being in the authentication game

artnet:  "French scholar Marc Restellini has braved death threats over his efforts to authenticate works by the Italian artist Amedeo Modigliani."

"There’s something strange about the view that universities should never sell their art, no matter what."

It's an interesting, and undeniable, feature of the deaccessioning debate that any time someone from outside the art world looks at the issue -- anyone, that is, who is not worried about being banished from the cool kids table in the cafeteria -- they find the deaccessioning taboo to be nonsensical. (Some previous examples here, here, here, and here.)

The latest is Harvard lawprof Noah Feldman, reacting, in his latest Bloomberg column, to the revelation that Fisk University sold two paintings a few years ago (sold them "under the radar," according to the New York Times ... and don't get me started on the Times's role in all this craziness). Feldman writes:

"The real question is whether a university should treat its works of art as commodities to be sold in a pinch or as fetishes to be worshipped and preserved no matter what. The former view may be a bit crude. But the latter view is absurd for an institution facing financial strain and deep cuts to its education mission. History, legacy and atmosphere can enhance the educational experience. But ultimately, they are supposed to serve education, not take priority over it. Give Fisk a break. Or give it a donation."

He's right that it's absurd -- not just wrong or misguided, but absurd -- and why anyone takes the deaccession police the least bit seriously remains one of life's great mysteries to me.

"Had the dealer named a different buyer, the gallery 'would have refused to sell the works at all to Buia,' the complaint states."

Mary Boone Gallery sues.

Smelled in the Public Trust

A National Poo Museum has opened in England.

“Mr. Schneiderman said that state law requires sales tax to be paid when possession of a good is transferred to a buyer within New York State and that the gallery, in handing over art to shipping companies that were not common carriers like FedEx or the United States Postal Service, was legally transferring possession to the buyer at that point.”

Randy Kennedy had a report in the NYT yesterday that Gagosian Gallery has agreed to pay New York State $4.3 million in back sales tax, interest, and penalties.  There were a number of different issues in play, but one of them is the one I quoted in the header above – and that kind of silly formalism has never made any sense to me.  If it’s a legitimate out-of-state sale – there’s no game-playing going on, the buyer genuinely has a home somewhere else – why should it matter whether the work ships by FedEx or by common carrier or by horse and buggy?

There is an art connection in the 1MDB embezzlement case

On the matter generally, see here.  On the art connection, see Kelly Crow at the Wall Street Journal and Eileen Kinsella at artnet.  And the Art Market Monitor says:

"The unanswered question surrounding Jho Low’s adventure in the art market is what he was hoping to accomplish with his art and real estate purposes. The assumption is that he was hoping to make quick gains by investing in art and real estate using borrowed money from 1MDB and multiplying that with leverage from other sources. But most of Low’s purchases were made at the top end of the market. In that range, Low was behaving more like a trophy or status buyer than a speculator."

"The balance of power in the forgery detection game is about to shift." (UPDATED)

Artsy:  These Four Technologies May Finally Put an End to Art Forgery.

UPDATE:  Tim Schneider:  "The cross-sector enthusiasm for these innovations shows why I expect technology to make a vastly bigger impact on art services than art sales. The most powerful gallerists and dealers will be happy to buy into a better mousetrap if it enhances their core business––and, unlike e-commerce, poses no threat to the aura of exclusivity and exceptionalism that has driven that business since its inception."

"More bizarrely, in several instances during one auction, the brothers, who are partners in at least one business, bid against each other. Their competing efforts sent the price of routine items soaring, according to court papers." (UPDATED)

Today in WTF:  Keno Brothers, ‘Antiques Roadshow’ Stars, Face Debt and 2 Lawsuits.

UPDATE:  AFC:  "Having worked at both Christie’s and Sotheby’s, one would assume the brothers would know how to handle themselves at an auction."

"The hapless pensioner explained to police that she was simply following the instructions."

The Telegraph:  91-year-old woman fills in crossword at museum - only to discover it was a £60,000 artwork:

"'Reading-work-piece', a 1977 work by Arthur Köpcke of the Fluxus movement, essentially looks like an empty crossword puzzle.  Next to the work is a sign which reads: 'Insert words'."

The museum says "in the future it would alter the label for the work to make it clear visitors were not permitted to fill in the blanks."  But Ann Althouse asks, "Doesn't that wreck the work of art?"

Rhett Jones says "Something tells us the Fluxus people would like this story."

"The smoke is clearing." (UPDATED)

The Observer:  What We Learned From the Knoedler Trial and Scandal.

Short answer:  not a lot.

UPDATE:  The Art Market Monitor: "To sneer and mock the buyers of these fakes may make the crowd feel superior but it does nothing to explain how so many sophisticated buyers were eager to acquire these fakes."

"Met to Cut 100 or More Jobs in a Move to Steady Finances" (UPDATED)

Robin Pogrebin has the story here.

Remember, this is a choice.  They don't have to let these people go.

UPDATE:  "Campbell said exhibitions would be cut to 40 per year from 55 to reduce costs. That’s more than a quarter."  Also a choice.

"But they both reinforce the absurd truth that the most essential question in the multibillion-dollar art market––'Is this piece even legitimate?'––still has no foolproof answers in 2016."

Tim Schneider with the key takeaway from the twin cases of Peter Doig and Lee Ufan.

Another risk of authentication

"A Bordelaise octogenarian woman got more than she bargained for when she hired an art specialist to authenticate a possible Leonardo da Vinci sketch in her possession."

Artnet:  Art ‘Expert’ Vanishes With an Elderly Client’s Precious Leonardo da Vinci Sketch.

"Yes, I am accused by the police. The accusations are that my art is based on 'spreading the falsehood' and 'creating public anxiety.'"

The Art Newspaper:  Leading Iranian artist accused by authorities of disturbing the peace.

Germany's strict new "public trust" law has passed

Dealers call it "the most stringent import and export restrictions on cultural objects in the world" and say "private collectors were already moving valuable works abroad before the law’s passage to avoid the new regulations."

The German culture minister would make a good member of the Deaccession Police:  she says "Germany spends billions in tax money to promote culture. It is therefore a matter of course that we should protect and keep our own cultural heritage."

In other words, because we subsidize, in a general way, "culture," we now own these very particular items of culture which may or may not have had any direct connection to the billions in tax money that's been spent.  All your culture are belong to us.

Some background here and here.

Another weird authentication case

What happens when a forger admits to forging an artist's work ... but the artist disagrees and declares the work authentic?  We're finding out right now, in South Korea, with artist Lee Ufan.

"Who Gets the Subsidized Apartments?"

A New York Times editorial this week:  "A new study of [federally financed affordable housing for artists] suggests it might worsen racial segregation by bypassing black and Latino people in favor of younger, white tenants."

"Pictures in the Sunday Styles tribute were of Cunningham by other photographers, or black-and-white images of newspaper clippings of his columns, which an insider pointed out is a way to get around the rights issues."

Page Six is reporting that Bill Cunningham died without a will, and (surprisingly to me at least) the Times has no ongoing rights to use his photos.  His heirs include "several nieces and nephews."

The perils of authenticating, part infinity

The NYT's Graham Bowley had a detailed report this week on a fascinating lawsuit in federal court in Illinois:  artist Peter Doig is being sued for denying authorship of a work the owner claims he made as a teenage inmate at a Canadian detention facility.  Doig's motion for summary judgment has been denied, and the case is scheduled for trial next month.

Bowley says "even if the court favors [the owner], it could be a hollow victory. Since the artist himself and the dealer who represents him say it’s not a Doig, the art market is unlikely to assign much value to it, art experts said" -- but if he wins, Doig might have to pay him the value of the painting, which wouldn't be hollow at all.

This is scary stuff.  As Nicholas O'Donnell says in the article, it "put[s] at artists in the cross hairs."  Or as Sergio Muñoz Sarmiento says, "[a] decision against Doig could have shocking consequences for artists."

Held in the public cone

An ice cream museum is popping up in Manhattan later this month, near the Whitney.

You can only eat a scoop if you replace it with another scoop.  #deaccessioninghumor

I'll be here all week.

"[O]ne of the biggest and most complex legal disputes over art in Europe"

Kelly Crow has a detailed report in the Wall Street Journal:  The $3 Billion Family Art Feud.

"Unauthorized Peter Beard Exhibit Will Go Forward"

Reports the Observer.  It's hard to tell what the hell is going on from the story.

"As far as I’m concerned, it has nothing to do with copyright."

"A work of art goes out there, and there’s a stream that activates and widens the communal imagination. It was an honor that I was being quoted. There was no money involved at all."

NYT:  Artist Who Inspired Kanye West’s ‘Famous’ Video: ‘I Was Really Speechless.’

"The artists have received payments between $200 to $1,700."

Back from a break and catching up on the news, I see that, after "a successful sales pilot," the Artist Pension Trust has made its first distributions to artists.  Well, no one is retiring on these distributions, though overall it remains too soon to tell.  Some background here.

Details on the Picasso bust settlement

From Robin Pogrebin here.  Background here.

"Artists cannot claim deductions on the artworks they donate, no matter the market value or hammer price commanded by their work."

"All they can write off is the cost of materials. Buyers, on the other hand, can claim a deduction when the work they purchase at a benefit sale hammers down for more than its fair market value."

ARTnews:  The Best Intentions: Inside the Wild World of Charity Auctions.

"The new approach reduces the risk that Sotheby’s ends up with too much artwork in its inventory -- a concern particularly in a slowing market." (UPDATED 2X)

Bloomberg reports that the auction houses are now paying fixed fees to third-party guarantors. The Art Market Monitor calls the story "laughable nonsense":  "The guarantee is a kind of loan and the guarantor deserves to be paid interest for making it."

UPDATE:  Felix Salmon:  "This is not manipulation, it’s transparency, and a welcome development."

UPDATE 2:  Tim Schneider:  "[The Art Market Monitor] argues—convincingly, I think—that ... critics are intentionally miscasting these arrangements as something more devious than what they are: fully disclosed insurance policies against a piece going unsold at auction ...."

Apply Yourself

An interesting Ninth Circuit VARA decision that turns into a debate about the meaning of "applied art" (because applied art is an exception to VARA; if it's applied art, it's not protected).

The case involves La Contessa, "a used school bus transformed into a mobile replica of a 16th-century Spanish galleon" for use at the Burning Man festival for several years, and then destroyed.

The majority opinion wants a relatively objective test:  "the focus of our inquiry should be on whether the object in question originally was—and continues to be—utilitarian in nature."  If the object "initially served a utilitarian function" and "continues to serve such a function" even after the artist transforms it, then it's applied art (and therefore not protected by VARA).  The majority wants judges to (and this is relevant, I think, to the fair use/appropriation debate) stay out of the business of making aesthetic judgments:  the alternative proposed by the concurring judge -- to ask whether a work is primarily directed to a practical purpose -- would "necessarily require[] courts to express judgments regarding the importance of an object’s artistic qualities," and "how different judges could answer such a question on a consistent basis is anything but clear."

The concurrence calls for a "more textured and flexible definition."  VARA's protections "cannot be limited only to works entirely devoid of any utilitarian purpose. ... Many outstanding sculptures, including the Caryatids of the Acropolis and the monumental carvings of Ramses at the temple of Karnak are in fact columns that provided buildings with structural integrity.  Medieval tapestries not only represented a form of fine art, but also kept castles and cathedrals free from draft."  "To effect the purpose of VARA and provide guidance for the art community, I believe courts should evaluate the work as a whole, asking whether its primary purpose is to serve a useful function and whether the artistic creation is subservient to that purpose. If the primary purpose is for the work to be viewed and perceived as art, then any incidental utilitarian function will not push it outside the scope of VARA."

I score this round for the concurrence.

Eileen Kinsella has a good write-up at artnet.  Courthouse News Service here.

Another Richard Prince lawsuit (UPDATED 3X)

Via Clancco.

UPDATE:  "If the offending work is that on page 8, plaintiff will have a hard time."

UPDATE 2:  Here is Eileen Kinsella's story at artnet.

UPDATE 3:  "Unless Prince decides to give up appropriating art and Gagosian quits putting said work on display, it seems likely that these lawsuits will continue."

Taxing

Daniel Grant had a piece in the Weekly Standard a week or two ago arguing, generally, that "philanthropy is not a tax proposition" and, more specifically, against proposals for restoring the income tax deduction for donations by artists (as opposed to collectors).  In general I disagree with Grant's take on this -- I think any time you make something more expensive (which is what happens to donations of art when you reduce the accompanying tax deduction), you get less of it.  But there are two, more narrow points I want to make here:

1.  The piece is critical of Ralph Lerner for telling the New York Times right after the Pension Protection Act was passed in 2006 that it would be "the death of fractional gifts."  As Grant points out, fractional gifts "didn't die and continue to be a normal way that donors" structure their giving. But -- and I realize this is a long time ago and little bit inside baseball -- the initial version of the Pension Protection Act would have been the death of fractional gifts -- as a result of what I called at the time the "mismatch problem." When that problem was later fixed through technical corrections, it brought the practice back from the dead.

2.   Grant says:  "As a practical matter, if artists want to have the same tax deductions as non-artist donors to museums, they simply can sell their work and contribute the earnings to these public institutions."  That's not the case.  Here's why.

If a collector donates a work to a museum, he reduces his taxable income by the fair market value of the work – a net positive.  Say he has a million dollars in income and the work is worth $100,000.  He now pays tax on only $900,000.

But if an artist in the same situation sells the work and contributes the earnings, he now has $1.1 million in income and a $100,000 tax deduction – so he pays tax on a million dollars.  The same as he would have had he not made the donation.  It’s a wash.  He’s given up the work but it’s done nothing for him tax-wise.

The two situations are not the same.