A surprise addition to the anti-anti-deaccessioning crowd

Martin Gammon (mentioned recently here), who now says (see comments):

"I have no complaint with the marketplace, and in fact think it is an important part of the equation. I also do not doubt that a case remains for Berkshire to deaccession some works to salve their chronic deficits. I just think that the wholesale decimation of all of the highpoints in the collection is simply not justified on that premise alone, and that a) there is a more narrowly focused selection that can be justified on curatorial grounds, and b) there is no reason why these could not be offered to other museums first, if the sale is proven necessary by an independent financial review."

There's room for that view in our crowd.

Tell me again about the public trust (foreign museums edition)

Rio de Janeiro's Modern Art Museum is selling a Jackson Pollock.

The National Gallery of Canada is selling a Chagall.

Are these sales "ethical"?  How should a member in good standing of the Deaccession Police feel about them?

Well, first she would need to know if Brazil and Canada have their own versions of the AAMD and AAM and, if so, whether they have "codes of ethics" and, if so, what they say about the sales.

Once she has all of that information, then our Deaccession Police officer can have an opinion on the matter.

It's an interesting kind of ethics.

"Is there an ethical case against deaccessioning by museums?"

Asks Michael Rushton on Twitter, after succintly capturing the nature of most anti-deaccessioning arguments:

"These arguments seem to me to beg the question: if one assumes from the outset that deaccessioning is unethical and unprofessional, then of course it's all dire and urgent. But I've yet to see a coherent argument about *why* an institution selling some assets is unethical. It certainly might be the case that the sales of assets are a result of poor management and board oversight, but that's just bad management and oversight, and doesn't make every case of asset sales a moral failure."

I think that's exactly right:  the Deaccession Police merely assume (why? because it violates the self-invented rules of a couple of museum guilds) that the practice is unethical, and all the hysteria simply follows from that assumption.

Rushton goes on to ask for "suggestions for an article that strongly presents a moral case against deaccessioning," and only Lee Rosenbaum (who so far as I can tell is the only member of the Deaccession Police at all willing to engage with critics) takes up the challenge, pointing him to her 2005 New York Times piece on the subject.

Rushton takes it apart here.

Rosenbaum's core argument is the following:

"Museums’ permanent collections belong to all of us. The public has, in most instances, paid for these works through the tax deductions given to private donors. And those donors bestow such works on the public expecting them to be valued for their aesthetic, not financial worth. If a museum doesn’t regard a particular gift as worthy of display or study, it shouldn’t accept the gift in the first place."

Rushton responds:

"There’s a lot in this paragraph; let’s break it down:

"'Museums’ permanent collections belong to all of us' is not true in any meaningful sense. Nonprofit museums are independent entities, and I have no claim on their works, any more than I have claims on the assets of any other organization. It is sentiment, but nothing more than that.

"That there were tax deductions to the donors does not change matters. All donations, cash or in kind, to registered nonprofits receive a tax deduction, but that doesn’t mean the organization surrenders the control of its assets to 'all of us.' The tax policy in place with respect to charitable donations is designed to encourage donations to charity, but does not imply any general public say in the management of assets.

"Do donors expect works to be valued for their aesthetic, not financial worth? Sometimes, maybe. A couple of years ago I was moving house, and ended up donating a couple of van-loads worth of books to my school library and local public library. They might put some on the shelf, and they might sell some where they think they could use the money to acquire books better suited to the library’s purpose. I don’t care – I just want to help out my library, and they can use my donation as it best benefits the library mission. I don’t see a moral difference between a gift of $500,000 cash to a museum and the gift of a work of art that doesn’t really fit its mission or collection but could yield $500,000 at sale that could be used on other purchases that would fit its mission. A donor could say 'I insist that you never sell this work, for any reason', I suppose. But I would want to ask that donor: Why?

"And as to the final point: my impression in most deaccessioning cases is not that a gift was accepted that the museum didn’t find worthy, but rather that it was once worthy but that circumstances have changed. Must any work accepted be held in perpetuity?

"And so in the end my ask for an article that gives a persuasive moral case that 'certain kinds of deaccessioning is unethical' has not been met. I don’t see it in the Berkshire case she is now covering."

I've made similar arguments in the past, including that Rosenbaum's argument can't possibly support opposition to sales between museums:

"Put aside the question whether this ownership principle applies to all non-profits, or just to museums (do 'we' own everything in every school and hospital and church and other non-profit by virtue of the tax deductions that help support them?), and go along with the assumption that everything every museum owns is 'our stuff.' Suppose Museum A has two paintings and has $100 in the bank (it's a very small museum). And suppose Museum B has one painting and $200 in the bank. So 'we,' 'the public,' 'Americans,' have three paintings (Museum A's two plus Museum B's one) and $300 ($100 from Museum A and $200 from Museum B). That's our stuff. Now Museum A sells one of its paintings to Museum B for $100. That leaves Museum A with one painting and now $200 in the bank, and Museum B now with two paintings but just $100 in the bank. What do 'we' have now? Three paintings and $300. Just as before. It's like moving money from one of my bank accounts (called, say, the 'National Academy Account') to another of my accounts (called, say, the 'Crystal Bridges Account'). I just don't see how 'Americans' are harmed when a work moves from one of their museums to another."

And here:

"It is sometimes suggested that this is a function of the favorable tax treatment museums receive: because museums are exempt from property and income taxes, and donors get tax deductions for contributing to them, the 'public' therefore is the true owner of the art. I've never really understood that argument. There are lots of other entities that get the same tax benefits -- churches. private schools and universities, hospitals, etc. Does the public own the MRI machines at the hospital? If a university decides to shut down the sociology department, should we step in and say, 'Hey, wait a minute. That department was held in trust for us. You can't just get rid of it like that'? Does every asset ostensibly held by every non-profit really belong to us? And if not, what makes art different? How does it come to be 'held in trust' when other, similarly-owned assets are not?"

And one more:

"Note that this argument would apply not just to the art, but to all the other assets of the museum -- computers, chairs, and holiday decorations. More importantly, it's just not the case that being granted nonprofit status means you agree your 'assets are public.' Think of every church, hospital, private school, etc. Their assets do not 'belong' to the public."

In the comments to Rushton's piece, Gail Obenreder points out that:

"Not every work of art in a museum has been acquired in the same manner. Some, certainly, were donated to be cared for and (probably periodically) displayed. Those may or may not have been given with the legal caveat to be a permanent part of the collection; many aren’t. ... And some are purchased by museums. These purchases may increase in value, perhaps greatly. And in any other type of organization (profit or non-) making a smart purchase and then monetizing that asset when it accrues more value would be lauded."

"The notion that museums could simply liquidate the bottom 1% of their collections for a cash windfall that would solve most fiduciary challenges is simply a canard."

That's from this piece by Martin Gammon in The Art Newspaper, and I suspect it will quickly be adopted as a talking point by the Deaccession Police.  Not only is deaccessioning repulsive and unethical and Stalin-esque, it also doesn't work!!

But is that really the right way to frame the issue?  Isn't the real question whether this particular museum can liquidate (just liquidate, as opposed to "simply" liquidate) some portion of its collection (maybe it's the bottom 1%, maybe it's 22-24% from the bottom) for some funding (as opposed to a far more repulsive-sounding "cash windfall") that would help solve the particular challenge that this particular museum finds itself currently facing (as opposed to solving "most fiduciary challenges")?

This is interesting

According to The Fashion Law blog, a street artist complained to retailer H&M about their use of his work in an ad campaign ... H&M responded by filing a lawsuit seeking a declaration that unauthorized graffiti is not protected by copyright ... but then immediately realized they had made a big mistake and issued the following statement:

"H&M respects the creativity and uniqueness of artists, no matter the medium. We should have acted differently in our approach to this matter. It was never our intention to set a precedent concerning public art or to influence the debate on the legality of street art.  As a result, we are withdrawing the complaint filed in court. We are currently reaching out directly to the artist in question to come up with a solution. We thank everyone for their comments and concerns, as always, all voices matter to us."

"According to the Association of Art Museum Directors, nationwide 59 percent of museums charge admission, 34 percent are free and 7 percent suggest a donation amount"

That's from this NYT story.

As far as I can tell, only one museum from that 59 percent is the object of protests over the policy.

More on the Shagalov case

Mentioned earlier here.  Georgina Adam and Anny Shaw have lots more detail in the Art Newspaper, including this from New York Judge Charles Ramos during a January court hearing:

"“I have never seen an industry more ripe with fraud and misconduct than the art business. To say there’s such a thing as artistic ethics is an oxymoron. Most of the cases I’ve had involving art dealers involve fraud outright. Just plain old fraud. This is not a nice business."

"France’s highest appeals court has now ordered a retrial on the grounds that there was insufficient evidence that the goods held by the suspects had been stolen."

The saga of Picasso's electrician goes on.  Background here.

"We want to keep admission fees low, keep the state role to a minimum, and, in terms of donors, insist on clean hands. But if we want to do *all* that, something has to give."

Michael Rushton on the question of "tainted money."

"But it’s the Copyright Act not the court that’s blocking the road, and [artists] have an easy way around. All they’re required to do is share their profits with the creators of the content they seek to exploit."

Stephen Carter on the Second Circuit's TVEyes decision, but maybe also on the visual art appropriation wars?

5Pointz Lessonz

Eileen Kinsella rounds them up.

"The 5Pointz case produced a strange role reversal. Graffiti artists, who started out as apostles of irreverence and improvisation, were now arguing for preservation and permanence. And a real-estate developer had reason to regret his former friendliness to art."

I'm a little late to it, but Justin Davidson on the 5Pointz decision is worth reading:  Artists Won the 5Pointz Case, But the Decision Was Terrible for Art.

Tell me again about the public trust (thinning out its art collection edition)

The Augustana Teaching Museum of Art is selling about 450 works.

That's 450 works which, having fallen under the aegis of a museum, are held in the public trust, to be accessible to present and future generations.  450 works 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?

$6.7 million in damages in the 5Pointz case (UPDATED)

Story here.  I've got to say I did not see that one coming.

From the opinion (reproduced here):  "If not for Wolkoff's insolence, these damages would not have been assessed. ... Given the degree of difficulty in proving actual damages, a modest amount of statutory damages would probably have been more in order."

UPDATE:  Brian Frye:  "Thankfully, this is why we have appellate courts. VARA is a stupid law, but not even VARA is this stupid."

Sergio Muñoz Sarmiento:  "[I]t wouldn’t surprise me if this case grabs Congress’s or the Trump Administration’s attention. Otherwise, my bet is that this case is appealed."

"On Thursday, a New York Supreme Court judge dismissed the auction house’s request for a summary judgment against Anatole Shagalov, who the house claims ponied up a record-breaking bid for the work but then failed to pay up."

Artnet news:  A Legal Battle Between Sotheby’s and a Dealer Over a Record-Setting Keith Haring Painting Is Headed for Trial.

"A lawyer representing the artist behind Digital DNA, a 7-foot-tall sculpture in Palo Alto's Lytton Plaza slated for removal later this month, has threatened to sue the city under the Visual Arts Rights Act"

Story here.  As I've noted before, VARA claims over the simple removal of work have not fared well.

BREAKING: "Berkshire Museum Victory" (UPDATED 3X)

Andrew Russeth:  "Berkshire Museum Victory: Massachusetts Attorney General Agrees to Art Sales, With Rockwell Going to Public Institution, Some Conditions."

More later.

UPDATE:  Immediate reaction from Deaccession Police Headquarters:  "Floodgates opened."  "Once again, an attorney general has been a lapdog, not a watchdog."  "An ethical travesty."

On the other side, Brian Frye tweets: "MA AG finally knuckles under & tacitly admits it has no legal authority to stop the Berkshire Museum from selling art."

UPDATE 2:  Yale's Will Goetzmann, assuming that the buying public institution is Crystal Bridges, says: "A move from MA to AK makes both better off. Why not?"

Yeah, why not?  Remember there are two ways to look at these situations. One is to weigh the actual costs and actual benefits and try to determine whether, on balance, all things considered, the sale is a good idea. The other is to take it as a given that the guidelines of certain professional organizations carry serious moral weight, such that their violation is an "ethical travesty."  (And "pity" if you don't see it that way.)

Another example of the latter approach is San Francisco Chronicle art critic Charles Desmarais, who says the settlement "looks like complete capitulation to" the museum, and then adds: "I am sorry for your loss, Pittsfield."  But why aren't we also happy for your gain, Bentonville, Arkansas, or Los Angeles, or wherever the Rockwell ends up?  Why don't they cancel each other out?  Why do only the losses count?

UPDATE 3:  "Debacle."

"A deal to resolve the Berkshire Museum art sale dispute is on the table, legal observers predict."

"But it could be days before the public learns what that compromise might look like."

"Museum industry standards on deaccessioning are inflexible and antiquated."

Nina Simon, executive director of the Santa Cruz Museum of Art, has an interesting piece in the Berkshire Eagle arguing against "clinging to outdated deaccessioning policies" and suggesting that "instead of fighting to protect an imperfect and antiquated rule, we could create new rules — rules that put the public trust, not objects, first."

She's a little vague about exactly what those new rules would be, but they seem to include a version of the Ellis Rule:

"Other nonprofit industries have done this. Accredited American zoos, for example, have a strict policy that governs how animals move from one institution to another. If your zoo no longer plans to exhibit giraffes, those giraffes don't suddenly become fungible assets on the open market. They become tradable assets within a controlled market — with other accredited zoos, who will care for the giraffes as well as you once did."

Is the tide turning? I think the tide may be turning.

AG requests one-week extension of Berkshire Museum injunction

Reports the Berkshire Eagle, which adds that "because the museum does not oppose the request for an extension of the injunction, it is expected to be approved."

And a reminder from the Eagle about the AG's role in the dispute:

"In his Nov. 7 decision to deny the first request for an injunction against the art sales, Judge John A. Agostini questioned whether [AG] Healey's office was committed to its probe, citing what he saw as its 'initial indifference to this litigation.'

"The judge used 15 pages in his 25-page ruling to fault work by the Attorney General's Office on the case, suggesting it was 'dragged into' the case, exhibited 'faintheartedness' and didn't seem to think it would find grounds to support its objections to the sales.

"'In this litigation, the AGO is a reluctant warrior,' Agostini wrote."

"In reality, what goes on display at museums is, I’d guess about 98 percent of the time, just what the wall copy claims it to be."

Noah Charney:  How Did the Modigliani Forgeries Make It Into an Exhibition?

"But in the supercilious guild of museum elitists, deaccessioning items from a collection for any purpose other than acquiring more important items is a hanging offense."

Boston Globe columnist Jeff Jacoby writes about "the dogmatic world of the deaccession police, [where] the Berkshire [Museum] would be better off dead if the price of staying alive for decades to come is to sell some artworks today."

He singles out captain Christopher Knight, who "sneered that the museum’s board had 'lost their minds' for not realizing that they had a duty to go out of business":

"'Don’t sell the art. Do close the museum,' he commanded. 'Spend the next several years responsibly overseeing the dispersal of the collection.' Elizabeth McGraw, the museum’s chairman, tells me people have said the same thing to her face. A Berkshire socialite confronted her at a reception: 'I think the museum should close, and the art should stay in the public.'

"But does anyone believe that culture and the arts in Pittsfield will be better off if the Berkshire Museum agreed to commit a genteel suicide and let its treasures be parceled out to other institutions? When the American Textile History Museum in Lowell, facing a similar financial crisis, closed its doors in 2016, its collections were dispersed to venues in North Carolina, upstate New York, and Washington, D.C. Almost nothing remained in the Massachusetts community .... Is that really what the condescending pooh-bahs of museum propriety wish for Pittsfield — not the loss of 40 items, but of all 40,000?"

And he has this to say about the Massachusetts AG:

"Attorney General Maura Healey, whose office oversees nonprofits and charities, was notified of the museum’s deaccessioning plans in June, weeks before it was announced publicly. She rightly raised no objection. Not until four months later, did Healey’s office act. ... [I]t’s hard to escape the conclusion that Healey’s investigation became a quest to find something, anything, to justify her belated opposition to the Berkshire’s plan. It isn’t only museum partisans who say so. Ruling on the initial request for an injunction in November, Superior Court Judge John Agostini pronounced it 'bewildering' that Healey would try to stop the sale when her office 'has uncovered no evidence of bad faith, no conflict of interest, [and] no breach of loyalty.'"

He concludes:

"The injunction expires Jan. 29. What happens next is anyone’s guess. But this much is clear: Each additional delay brings the Berkshire’s demise closer. Nothing is going to hurt Norman Rockwell’s paintings. But the museum he loved enough to give them to is fighting for its life, and time is running out."

Missing the Forest

San Francisco Chronicle art critic Charles Desmarais has a rebuttal to Michael O'Hare's recent piece on deaccessioning, which I discussed here.  It begins:

"Here’s an idea: Let’s make admission free to certain national parks. We’ll just sell off other parks, perhaps the ones with the lowest attendance, and use the proceeds to fund the popular spots for a while."

But isn't deaccessioning more like selling some of the trees within the park to pay for things like free admission, better upkeep and conservation, more staff, more and better public programs, etc.?

When a museum sells some artwork, it doesn't cease to exist as a museum.  It just has a few less trees than it did before.

And isn't it worth noting that parks already sell trees all the time and nobody seems to care (don't be so touchy about it), so long as they use the proceeds to buy other, different trees?

Desmarais includes a concession that "a certain amount of prudent trimming can make sense." But he doesn't explain why the proceeds from such trimming can only be used to buy more trees and not for other valuable purposes (such as free admission).

BREAKING NEWS: The Ellis Rule Is Back

Brought back by the eponym himself.

The recent run of deaccessioning sanity continues.  Glenn Lowry, Michael O'Hare, Tim Schneider, and now Adrian Ellis line up against the tomato throwers.  Is the tide finally turning?

"But let’s at least seriously consider how billions of dollars in stored art might be able to help solve some of the crises afflicting art museums around the world."

More deaccessioning-related sanity, this time from Tim Schneider.  (Other recent bouts of sanity here and here.)

"Lowry is moving in the right direction and will make real waves among his peers."

Michael O'Hare (discussed earlier here) on Glenn Lowry (discussed earlier here).

"This is really bad for U.S. collectors"

The NYT Wealth Matters column this week:  How the Tax Code Rewrite Favors Real Estate Over Art.

It's about the elimination of 1031 exchanges for art in the new tax law, mentioned earlier here.

"This happens from time to time when a minor museum can’t fix the roof or keep the heat on, and the moral outrage machine goes into high gear, wailing that the sold works will be 'lost' to humanity forever!"

A very good day for sanity in the deaccessioning debate.

First, MoMA's Glenn Lowry joined me -- and Felix Salmon -- in the anti-anti-deaccessioning crowd.

And now, this great piece by Berkeley's Michael O'Hare in the San Francisco Chronicle. He starts off talking about the hysteria around the proposed Berkshire Museum sale, and says:

"Let’s get a grip. Selling major works to save a museum, or revise its overall mission, is rare, and not a matter of art getting 'lost'; they go to museums that want to show them, or to wealthy collectors who take good care of them, show them privately and almost always bequeath or give them — to museums."

He then pivots to another issue that's in the air these days -- museums charging admission fees:

"I have estimated ... the monetary value of the collection of one of my favorite museums, the Art Institute of Chicago: It’s about $35 billion. Absurd to think the institute would just sell the collection, or sell any of its best works, but what about all that stuff in the basement that has no prospect of ever being displayed? Well, if the institute sold 1 percent off the bottom ... the institute could endow free admission forever (currently general admission is $25; $20 for Chicago residents)."  (Along these lines:  9 Works the Met Should Sell Right Now to Avoid Charging Tourists Forever.)

Most museums, he points out, "have warehouses of art that are not creating any cultural value now and could be sold, especially to regional museums and collectors who would show it. They could free up funds for more space to show what they have, and more curators and educators to amplify the value of the visitors’ experience."  Or, as Lowry put it, "more programs that engage more people across a broader platform."

I know, really scandalous, repulsive, unethical stuff, right?

For more by O'Hare, see here, here (where he pointed out that "the Met has a collection worth at least $60 billion, thousands and thousands of objects almost none of which (by object count or square feet of picture) is ever shown or ever will be.  ... Selling just two percent ..., for example, could endow free admission forever"), here, here, and here.

Glenn Lowry Just Joined My Deaccessioning Hall of Fame

From an interview with Charlotte Burns:

"Charlotte Burns: Do you find that the current de-accession policies need adapting?

"Glenn Lowry: Well, I have very strong opinions about de-accessioning, and I don’t pretend for a moment to be aligned with many of my colleagues. I don’t believe you should de-accession to fund operating costs. I think that is a categoric mistake.

"But I do believe that one should de-accession rigorously in order to either acquire more important works of art or build endowments to support programming. Because for me, in the end, it’s all about being sufficiently well-capitalized to program intelligently and to have as few works of art in storage as possible. It doesn’t benefit anyone when there are millions of works of art that are languishing in storage. A— there’s a huge capital cost to that that has a drag on operations. But more importantly, we would be far better off, in my opinion, allowing others to have those works of art that might enjoy them, but even more importantly, converting that to endowed funds that could support public programs, exhibitions, publications.

"So, I have no issue with the anxiety about selling works of art to support daily operations. That’s not an intelligent use of those funds. But I do think we need to re-examine fundamentally how we improve the quality of what we do and what the role of collections are in that context.

"I’m an outlier in that respect. I’ve come to terms with the fact that many of my colleagues see it differently. But I also think I’m right that we are woefully under-capitalized, and there isn’t a single museum in this country—and I put The Museum of Modern Art in that—that is doing a great job of programming, because we don’t have the resources to do that. What we should be doing should be ten times what we’re currently doing.

"Charlotte Burns: What do you think you should be doing?

"Glenn Lowry: More programs that engage more people across a broader platform.

"Charlotte Burns: Right."

Right.

Wow.

Let me re-phrase that:  Wow.

It sure is refreshing to stumble across a little sanity in the deaccessioning debate.

One thing I think Lowry may be wrong about is that he's probably not as much of an outlier as he thinks. I've got at least a half dozen museum directors in my hall of fame (including, most recently, MASS MoCA's Joe Thompson), and I bet if you spoke to people privately, away from the watchful eye of the Deaccession Police and their informants, you'd find most of them would be in complete agreement with the position he lays out here.

"The $10 million offer was to have expired Jan. 1, but the museum board has voted to extend it indefinitely."

If you have information that would lead to the recovery of the stolen Gardner works, and didn't get around to disclosing it by the end of the year, you're in luck.

"What seems to be lost in this discussion is due consideration of the specious assumption at its core: That free admission actually engages low income audiences."

Colleen Dilenschneider:  "Data indicate that free admission has little to no correlation with how well museums – including the Met – welcome or satisfy income-qualified audiences."

In other Met-admission related news today, Chicago's Museum of Science and Industry and History Museum -- both of which which sit on parkland -- announced admission fee increases. "The admission-fee hikes were approved Wednesday by the Chicago Park District Board to help offset increased costs in building maintenance and operations for both museums," and the Board's Commissioner noted: "If you look at all the other forms of entertainment, whether it’s professional teams or movie theaters or concerts, this ticket-price increase pales compared to what’s happened in the truly private sector."

"Why Mickey Mouse’s 1998 copyright extension probably won’t happen again"

Copyrights from the 1920s will start expiring next year if Congress doesn’t act.

"No one likes to sell art. But if there is a higher purpose to better serve the students that we serve, we will."

Philadelphia Magazine: La Salle’s President Defends Her Controversial Plan to Auction Artwork.

What makes her think better serving her students is more important than the "ethical" guidelines of the museum trade organizations? Such a repulsive, deplorable thing for a college president to do -- put the interests of the students first.

Don't worry, the art world is "pushing back" against this crime.

"What is it about art that it shouldn’t be paid for?" (UPDATED 2X)

That's a question attributed to former Met Director Philippe de Montebello, in this Observer piece by Daniel Grant on the Met's new admission policy.

Jillian Steinhauer is at cnn.com arguing against the change, and at least tries to make the case that "the Met isn't quite like" all the other museums that charge for admission without anyone batting an eye. She mentions two differences. First, that the Met is "the largest art museum in the country." But I don't see what follows from that. Should the largest dance company in the country not charge for tickets?  And where does this "largest must be free" rule come from?  Why not "the top three must be free"?  Or the top 10?

Second, she says "the Met is a public institution in many senses of the word." One sense she mentions is that "New York City owns its main building on Fifth Avenue and the land that building sits on in Central Park." But to the extent that matters, isn't it adequately dealt with by the fact that the museum remains free for New York City residents?

And the Philadelphia Inquirer runs an opinion piece headed "Museums should be free to everyone, regardless of where they live or how much they earn." That's a position I can at least understand. (I may not be convinced by it, but I can understand it.) What I don't understand is the position that this museum, alone among all the others, should be free.

UPDATE:  9 Works the Met Should Sell Right Now to Avoid Charging Tourists Forever.

UPDATE 2:  More Than 200 U.S. Art Museums by Admission Price. (Spoiler alert: the great majority are not free.)

Breaking News: Museums Charge Admission Fees (UPDATED)

Who knew?!

Just a couple of quick notes on the uproar over the Met announcing that it's going to start doing what every other museum already does (except less so -- their admission fee will only apply to out-of-state visitors).

1.  First, the argument that, as Roberta Smith put it in the Times, "we shouldn't have to pay to see art in museums whose nonprofit status is supported by our taxes" obviously applies with equal force to all museums, not just the Met.  So where are the protests against MoMA, the Guggenheim, the Whitney, etc. etc.?

2.  A similar claim sometimes pops up in the deaccessioning debate, but nonprofit status simply doesn't do the work its meant to do in arguments like that.  Most theater companies and dance companies have nonprofit status.  Should their performances be free?  Private schools have nonprofit status.  Is it improper for them to charge tuition?  Hospitals have nonprofit status.  And on and on.  There may be good arguments against the Met's decision here, but its nonprofit status is not one of them.

The NYT editorial board points out that the "the new system is in line with prices charged at some other institutions, like the Museum of Modern Art" and says the new policy "is as understandable as it is regrettable."

The Art Market Monitor is not impressed with Smith's (and Holland Cotter's) piece (he calls it "a contradictory set of emotionally-driven politically-naive opinions").

UPDATE:  Brian Frye points out (correctly, I think) that there is a kind of "endowment effect" in play here.

Here We Go Again

La Salle University in Philadelphia is planning to sell some art, hoping to raise "as much as $7 million, or more, which would be used to 'to help fund teaching and learning initiatives in its new strategic plan.'"

The debate (if you can call it that) will follow its usual form.

The Deaccession Police will cite the guidelines of the various museum organizations as if they were the word of God.

The university will point out in response that it is a university not a museum and (as a school official tells Lee Rosenbaum here) its "Board of Trustees has fiduciary responsibility for the University, and their decisions supersede those of the ... the guidelines established by museum trade associations."

The Deaccession Police will respond with their usual tactic of throwing rotten tomatoes and saying how dare you? and well, I never a lot.  They will compete with one another to see who can seem the most devastated by the trimming of a collection that, until five minutes ago, they didn't know existed.

For a more rational perspective, I recommend the law review article mentioned here.

"5 Lawsuits That Could Reshape the Art World in 2018" (UPDATED)

From Isaac Kaplan at Artsy.  The list includes the Masterpiece Cakeshop Supreme Court case, Graham v. Prince, the Berkshire Museum lawsuits, the Guelph Treasure case, and the long-running Von Saher v. Norton Simon Museum.

UPDATE:  Brian Frye tweets:  "Interesting list. But I’m a little skeptical that Masterpiece Bakeshop will have much effect on the artworld, no matter how it is decided."  Sergio Muñoz Sarmiento responds:  "Agree on Masterpiece, but SCOTUS may do what art historians and critics do not--opine on what is and isn't art and expression. I hope."

If You Buy an Artwork, Can You Legally Eat It?

Artsy's Isaac Kaplan runs through the menu of possibilities.

"A New York lawsuit asks: Is graffiti art protected under federal law?"

The LA Times has a piece on the 5Pointz lawsuit, which is still awaiting decision, including an interesting point from Columbia's Pippa Loengard.  She says even if the artists win, "it’s going to be a Pyrrhic victory. These individual artists may be compensated, but what is going to be the long-term effect [is] buildings don’t allow public art because they don’t want to face damages."

Criminal Charges for Chowaiki

Brian Boucher has the details.  Earlier post here.  "The indictment ... alleges that Chowaiki sold his victims a stake in works of art that he did not own and sometimes sold shares that totaled more than 100 percent of the work’s value."

Will Goetzmann tweets:  "First rule of investing: avoid fraud."

If you've got information that would lead to the recovery of the Gardner works ...

... now's the time to share it:  the $10 million reward offer goes down to $5 million on Jan. 1.

How the new US tax law affects the art world (UPDATED)

Martha Lufkin's take.

UPDATE:  Artsy's take is here, focusing especially on the elimination of like-kind exchanges of art.

Join the crowd

Felix Salmon imagines an "alternative universe" where a better solution to the Berkshire Museum's financial difficulties was ... deaccessioning artwork:

"In this alternative universe, once the board decided to get a real grip on its finances, it could start quietly talking to the Norman Rockwell Museum, down the road. Some kind of deal could surely be done whereby a donor would effectively fund the move of two great Rockwell paintings into the place where his legacy is most studied and celebrated. Technically, that would still have meant the deaccession of one or two Rockwells, but in practice no one would have minded very much, because the paintings would have stayed in a Berkshires museum."

No one would have minded very much?  I doubt that.

But in any case:  welcome to our crowd, Felix!

Berkshire Museum Injunction Extended to Jan. 29

Story here.  A spokeswoman for the attorney general said the extension "will provide enough time for attorneys to finish their investigation."

Recall what the trial court judge had to say about the AG's "investigation":

"He points out that the AG was 'made aware of the proposed sale' in June, at which point it 'commenced a detailed and thorough review':  it 'requested and reviewed numerous documents, conducted over 20 informal interviews, met with Museum officials in Pittsfield, had no fewer than 20 conference calls with Museum counsel and fielded more than 400 contacts by individuals interested in the transaction.'  In September, when the November sale was announced, the AG 'took no steps to intervene or even express dissatisfaction.'  It wasn't until Oct. 30, two days before the court hearing, that the AG got involved, and even then did not 'assert the the Museum breached its fiduciary duties, only that it has "concerns" and needs more time to complete its investigation.'  'Putting aside the issue of why four months was insufficient to complete this inquiry,' the Court continued, the AG failed to specify 'what information is necessary to complete its review, what attempts it has made to obtain such information, and when it will be in a position to offer its opinion.'"

Christo Copyright Suit

Over the use of some photographs.  Story here.

"Adidas regrets these actions and is pleased that the lawsuit filed by Art Basel has been settled amicably."

A settlement in the Art Basel-Adidas lawsuit.  Background here.

"How Trump’s new tax plan could affect the art world"

Martha Lufkin's take here.

"What's better for the Berkshires?"

"Keeping two Norman Rockwell paintings in a Pittsfield museum that’s headed toward financial ruin? Or having a reinvented museum in Pittsfield that’s financially stable because it sold those two paintings, along with other valuable items from its collection?"

The Boston Globe editorial board on the Berkshire Museum controversy.

Official response from Deaccession Police headquarters here.

"Once you get a work like Salvator Mundi out of the auction house, you must figure out where to ship it."

artnet News:  So You Just Bought a $450 Million Leonardo da Vinci Painting. Now What?

And relatedly, Peter Singer (and some others) have some suggestions for what else you could do with $450 million.

"The gallery, Chowaiki & Co. Fine Art Ltd., filed for bankruptcy on Nov. 13." (UPDATED)

"At least three lawsuits filed this week against the dealer, Ezra Chowaiki, accuse him and the Park Avenue gallery in which he’s the president and a minority shareholder, of carrying out a variety of frauds."

UPDATE:  "Ezra is in a world of hurt."

Are works owned by public libraries held in the public trust?

If not, why not?

The New York Times reports on a library in Jamestown, N.Y. that "says it needs to sell most of the 50-odd works in its collection to make ends meet, an especially formidable task, it said, since the city has slashed its budget over the last few years."

One interesting twist in the case: a couple of "art patrons" had "proposed keeping the collection in Jamestown by buying about 40 of the works for $1.2 million and finding a new home for them in the city" -- but the Attorney General turned them down!  The AG "objected to a private sale without testing whether the paintings might actually bring in more if sold through public auction."

"There's no easy answer."

I found another member for my Deaccessioning Hall of Fame: Lynn Zelevansky, who recently stepped down as director of the Carnegie Museum of Art in Pittsburgh (not, I don't think, because of her views on deaccessioning).  From an interview with Charlotte Burns of Art Agency, Partners:

"What about the question of using funds for operating expenses?

"That’s much harder to answer. It has traditionally been met with a resounding no from the field and organizations that set its standards, such as the American Alliance of Museums and the Association of Art Museum Directors.

"The worry is that a board might sell works from the collection as an easy way of paying outstanding bills. I remember a friend remarking when LA Moca went through its financial crisis that the institution—which is so deep in art by Rothko and Rauschenberg—could have sold a minor work by each artist without compromising the collection and solved its economic problems. But that’s not something you would want to happen without oversight. What would it involve? And what power would the overseers have to enforce their judgments? There’s no easy answer.

"I once stood up at an AAMD meeting and asked if there was some way we could imagine doing this in extreme and worthy situations, and the membership practically threw rotten tomatoes at me, so that was that."

That's basically the position of what Felix Salmon calls the anti-anti-deaccessioning crowd:  There's no easy answer.  Maybe there's a way to do it in extreme and worthy situations.  Or, as the trial court judge put it in his recent decision in the Berkshire Museum case, every proposed deacesssion must be examined on its own merits.

Against this extreme position of there are no easy answers and considering each case on its own merits, the anti-anti-anti-deaccessioning crowd throws rotten tomatoes.  (In fairness, it generally works for them.)

Photos Stolen From PS1

Or were they just borrowed?  Definitely a weird one.

Trinity Church VARA Suit Dismissed

The VARA lawsuit over the removal of a sculpture from Trinity Church in Manhattan has been dismissed. Story here.  Decision here.  I said when the case was filed that VARA claims relating to the removal of site-specific work have not fared well.  Add this one to the list:  the Court says "simply relocating The Trinity Root does not by itself constitute distortion, mutilation or modification under VARA."

In this case, the artist had the additional difficulty that he signed a contact transferring to the Church "all right, title, and interest to the Sculpture ..., including but not limited to the copyright therein, ... in perpetuity throughout the universe, for use in any manner ....  In the event of any termination of this Agreement, Trinity will own the Sculpture, in whatever degree of completion ..., and Trinity will have the right to complete, exhibit and sell the Sculpture if it so chooses. ... [The artist] understands that Trinity has not promised the public exhibition of the Sculpture, and that Trinity may loan the Sculpture to third parties as Trinity deems appropriate" (emphasis in the original).

Tyler Cowen on the Berkshire Museum (UPDATED 2X)

Sell the Rockwells.  It's Just Business.

UPDATE:  More from Cowen here.

UPDATE 2:  Another thoughtful critic of the Deaccession Police, Brian Frye, was on Bloomberg Radio talking about the latest developments.

BREAKING: Appeals Court Enjoins Berkshire Museum Sale

Art Newspaper story here, including that "the injunction expires on December 11, but the judge has given the AGO the option to extend the injunction until its investigation into the deaccessioning can be completed."  I guess the appellate court wasn't as impressed with Judge Agostini's decision as I was.

It was widely reported today that the 5Pointz graffiti artists had won their VARA lawsuit against the building's developer ...

... but, as the New York Times reports, in a weird procedural twist, the jury's decision was only a "recommendation":  "Even though the jury rendered its decision after hearing three weeks of testimony, near the end of the trial both Mr. Baum and Mr. Ebert agreed that Judge Frederic Block, who presided over the case, should take its verdict only as a recommendation. Judge Block has asked both sides to submit court papers in the coming weeks about the validity of the verdict, at which point he will issue a final decision."

BREAKING NEWS: Injunction denied in Berkshire Museum case (UPDATED 2X)

Story here.  More later.

UPDATE:  Lots of interesting stuff in the decision.  There are a number of museum directors in my Deaccessioning Hall of Fame, and we recently added our first scholar-in-residence.  Now we've got our first judge.  Some reactions, in no particular order:

1.  There were recently some efforts by the usual anti-deaccessioning crowd to downplay the museum's financial difficulties, but Judge Agostini gives that argument short shrift:  "There appears to be no dispute that the Museum is in serious financial trouble. ... Although the extent of the financial woes is disputed, it is beyond cavil that the Museum's financial outlook is bleak."  So stop caviling.

2.  He points out (at p. 6) that "deaccessioning items from a museum is neither illegal nor unethical per se and every proposed deacesssion must be examined on its own merits."  That's a pretty good statement of the anti-anti-deaccessioning position.

3.  The decision basically proceeds in two movements.  First, nobody but the Attorney General has standing to sue.  And, as for the Attorney General ... oh, does he take the Attorney General to the woodshed.  He points out that the AG was "made aware of the proposed sale" in June, at which point it "commenced a detailed and thorough review":  it "requested and reviewed numerous documents, conducted over 20 informal interviews, met with Museum officials in Pittsfield, had no fewer than 20 conference calls with Museum counsel and fielded more than 400 contacts by individuals interested in the transaction."  In September, when the November sale was announced, the AG "took no steps to intervene or even express dissatisfaction."  It wasn't until Oct. 30, two days before the court hearing, that the AG got involved, and even then did not "assert the the Museum breached its fiduciary duties, only that it has 'concerns' and needs more time to complete its investigation."

"Putting aside the issue of why four months was insufficient to complete this inquiry," the Court continued, the AG failed to specify "what information is necessary to complete its review, what attempts it has made to obtain such information, and when it will be in a position to offer its opinion."  The Court calls the AG "a reluctant warrior," and notes, dryly: "this request to enjoin based on concerns is unusual."

4.   The Attorney General didn't fare much better when the Court finally turned to the substantive question whether the museum's trustees breached their fiduciary duty.  It points out, first of all, that "the Attorney General, agreeing that the Museum was in dire straits, conceded at oral argument that the Trustees' decision to deaccession ... was in good faith."  It then goes on to note that the AG "cites no case, statute, or [AG] policy in support of the proposition that, to be reasonable, corporate board decisions must follow the professional ethics of the field."  In other words, the AAMD and their allies in the Deaccession Police do not make the law.

Let's stop there for a second because this is an important point.  The Court here is rejecting the argument that the museum's decision was unreasonable because it "would result in sanctions" by the museum associations.  The Deaccession Police have had some success with this argument in the past -- most notably, in the case of the Corcoran -- which has always struck me as remarkable.  It seems to me the argument is:

If you do X, we will smack you.
It is unreasonable and a breach of fiduciary duty to do something that results in your being smacked.
Therefore, it is a breach of fiduciary duty to do X.

Judge Agostini rejects that argument.  "The Trustees evidently considered the ethical implications of their decision and weighed those implications heavily."

5.   He also dismisses, in one quick footnote (n.11), the argument we hear over and over from the Deaccession Police "that deaccessions of this nature will chill relations with potential future donors to the Berkshire Museum, and to museums in general."  This argument, he says, "overlooks the simple fact that donors are free to restrict their gifts in express terms, and, quite often, they do."

6.  Nobody seemed to press the argument that works can't be sold because they are held in the public trust ... but maybe that's because there's no such thing as the public trust.

7.  The bottom, bottom line:  The trustees here "undertook a deliberate and careful review of the available options and chose what they believed to be the appropriate course.  That was their duty. Though the Attorney General, the non-governmental plaintiffs, and perhaps many in the public might disagree with the resulting decision, the law does not hold the Trustees to a standard of popular or political approval.  Rather, the law requires reasonable care under the circumstances, and there is no evidence that the Trustees afforded this decision less than reasonable care."  In other words:  once again, the Deaccession Police, writing on Twitter, do not make the law.

8.  The Court closes with one last shot at the Attorney General -- "it is bewildering that the [AG] would seek such an injunction ... when its investigation has uncovered no evidence of bad faith, no conflict of interest, no breach of loyalty, no express gift restrictions, and yielded unconvincing evidence of implied gift restrictions or a breach of reasonable care during a two-year decision-making process" -- and expressly frames its decision as vindicating "the rights of a charitable board to make thoughtful decisions to steer its charity through troubled times."

UPDATE 2:  Felix Salmon needs a drink.  (Scroll around for his other thoughts on the decision.) And Brian Frye called it.  (Yes, he did.)

"Investigators suspect he swiped it during his time working for Scully."

The Daily News:  Famed artist Sean Scully's ex-aide busted for allegedly stealing, selling $500G painting from boss' Chelsea studio.

"In its new Parkway location, the Barnes has met or exceeded virtually every revenue, fund-raising, and attendance projection made in 2010 before the move."

While the usual suspects continue their latest freakout, the Philadelphia Inquirer's Stephan Salisbury takes a look at the subject of one of their previous freakouts.

Hostage Situation (UPDATED)

There were reports yesterday that the Mugrabis were suing Mana Contemporary, accusing it of holding their collection "hostage" because of alleged unpaid storage bills.  Today, the Art Newspaper has a story headlined "Court orders release of Mugrabi family’s art being held 'hostage' by storage firm" ... but the subhed says "Mana Contemporary must deliver five works in exchange for $1m," which, if that's true -- if they have to pay the million dollars before they get the work back -- means the hostage-taking seems to have worked.

UPDATE:  Some clarity from Bloomberg.  Under a similar headline -- "Five ‘Hostage’ Paintings Ordered Freed in N.J. Storage Dispute" -- we learn that, in exchange for their freedom, "the Mugrabi family was ordered to post a $1 million bond."

"Blue-Chip Art Dealer Accused of Scamming Clients for Millions of Dollars Goes to Jail in New York"

The dealer is Timothy Sammons, who has been charged with grand larceny and fraud.

"Norman Rockwell’s Sons Sue Berkshire Museum, Seeking Halt to Sotheby’s Sale"

Story here.

Brian Frye rules:  "The plaintiffs lack standing & the complaint fails to state a viable cause of action. No written gift condition & 'public trust' is pure BS."

"The family of the late African-American artist Thornton Dial has charged in a new lawsuit that Dial’s artwork was wrongly acquired by the High Museum of Art." (UPDATED)

"Filed this week in federal court by Dial’s estate and three of his children, the lawsuit charges that art dealer William S. Arnett or his foundation Souls Grown Deep sold or donated Dial’s artwork to the High Museum that Arnett didn’t rightfully own."

UPDATE:  Lawsuit quickly withdrawn.

"More than a dozen artists packed into a federal courtroom on Wednesday to watch as lawyers debated whether the destruction of their murals was a violation of their rights."

Artnet's Eileen Kinsella has a report on the 5Pointz VARA trial, now underway in Brooklyn.

Most of the commentary focuses on the question whether these works are of "recognized stature," as VARA requires, but I've always been more interested in hearing the plaintiffs' damages theory.

All in the timing

Artnews reports that dealer Gary Nader will sell $100 million worth of works from his collection in order to fund a proposed museum in Florida to house said collection.

I assume no one could have a problem with this.  It's his work, and if that's what it takes to get the museum built, great.

But if he first donated the work to the museum ... and the museum sold the works to, say, raise money for construction of the building ... then the sale would suddenly become unethical and the Deaccession Police would be on to their usual carping.

But the end result is identical in the two cases.  How can one be totally noncontroversial and the other deeply unethical?

The trial in the 5Pointz VARA case is about to get underway (UPDATED)

Story here.  Background here.

UPDATE:  The New York Times on the first day of trial here.

"Threats of violence in response to controversial art are abhorrent."

"They can’t be allowed to dictate what art the public is allowed to see, lest a few deranged would-be saboteurs are encouraged to shut down exhibits at their whim. In an age of social-media campaigns that can reach millions in an instant, the problem is only going to get worse."

The New York Times editorial board:  The Guggenheim Surrenders on Free Expression.

Rules and Norms (UPDATED)

Felix Salmon, generally the most articulate defender of the anti-deaccessioning position, has a piece in The New Yorker on the Berkshire Museum controversy, which then led to a (short but) interesting discussion between him and Deaccessioning Hall of Fame scholar-in-residence Brian Frye on Twitter.

Salmon says "I would really love to see some of the anti-anti-deaccessioning crowd [are we a 'crowd'? -- dz] come out and say yes, this deaccessioning is bad."  To which Frye responds:  "I think you make a pretty good case this one is a bad decision on the merits. But I don't think [the AAMD] rules are an appropriate solution."

Not surprisingly, I'm with the scholar-in-residence on this one.  Most importantly, I think this is exactly how the conversation is supposed to go.  Salmon's basic position is:  this deaccessioning is a bad idea, the museum's financial condition is not so bad, they don't *need* to do this.  He may be right about that (I take no position on it) but the implication is that, if the facts were otherwise, if the museum's financial condition was sufficiently desperate or the need could be otherwise sufficiently demonstrated, then the deaccessioning would be justified.  That just is the position of those of us in the anti-anti-deaccessioning crowd.

Contrast Salmon's approach with that of a typical member of the Deaccessioning Police like Christopher Knight, who thinks that, no matter what -- no matter how bad the institution's financial condition, no matter how great the need -- deaccessioning is always wrong in every case.  Better to close the museum than sell any work.

UPDATE:  On cue, a member of the Deaccession Police comes along to remind Salmon that, at the end of the day, he is part of the anti-anti-deaccessioning crowd himself.

"Bank Behind Fearless Girl Statue Settles U.S. Gender Pay Dispute"

"The custody bank will pay $5 million to more than 300 women, following a U.S. Department of Labor audit."

Who will guard the guards?

The Daily Beast:  The Prison Guards Who Stole a Salvador Dalí Painting.

"The ‘Sociopath’ Scholar Who Made Films of His Crimes Tried to Confess to America’s Most Famous Art Heist"

Your art law headline of the day.

Heckler's Veto (UPDATED)

Guggenheim Pulls Controversial Animal Artworks From China Show Over Threats of Violence.

UPDATE:  Ai Weiwei:  "When an art institution cannot exercise its right for freedom of speech, that is tragic for a modern society. Pressuring museums to pull down artwork shows a narrow understanding about not only animal rights but also human rights."

Some News in the Rybolovlev-Bouvier Case

Eileen Kinsella has the story here.  Background here.

"Wedding Cakes, Urinals, and Other Art"

Michael Dorf on the Masterpiece Cakeshop case currently before the Supreme Court.

"The dire need of Naruto is what fully underpins why we pursued this lawsuit to begin with."

The monkey selfie lawsuit has also settled.  Background here.

And then there were none

The last of the Knoedler lawsuits has settled.

"The foundation said that Dalí’s remains would soon return to the Figueres museum’s crypt."

NYT:  Salvador Dalí Was Not Woman’s Father, DNA Test Shows.

Deaccessioning Podcast

Featuring Deaccessioning Hall of Fame scholar-in-residence Brian Frye.

"Bizarre Pollock forgery scam"

Details here.

Bizarre as they are, Tim Schneider points out that "narrative is only a few fractions of an inch ballsier than a narrative that suckered multiple high-level collectors in New York and other industry hubs for decades" -- i.e., the Knoedler forgeries.

The logical endpoint of the anti-deaccessioning position (UPDATED)

LA Times art critic Christopher Knight has a solution to the Berkshire Museum's financial difficulties:

"Don’t sell the art. Do close the museum. Start behaving like the charitable institution you are supposed to be. Spend the next several years responsibly overseeing the dispersal of the collection."

Let that sink in, folks.  This is what the Deaccession Police believe.  (Another example here.)

They would rather a museum close than sell a single work.  (The sale of 400 works, on the other hand, just with a different use of proceeds -- that's perfectly fine.)

Previous discussions of Knight's contributions to the deaccessioning debate here and here.

UPDATE:  "With friends like Knight, the AAM and AAMD hardly need enemies. Hopefully, the dogmatism of the deaccessioning police will finally encourage more sensible minds to consider the actual consequences of the dogma."

"For most litigants, however, the ruling seems to reinforce the sensible view that a defendant should not waste its time with a 12(b)(6) motion on fair use unless its 'aesthetic alterations' to the plaintiff's work are immediately apparent and compelling."

Bob Clarida and Robert Bernstein in the NYLJ [$] on Richard Prince's latest.

Tell me again about the public trust (more than 400 photos from MoMA edition)

MoMA is selling more than 400 photos from its collection at Christie's over the next nine months.

I thought I very recently read somewhere that "one of the most fundamental and longstanding principles of the museum field is that a collection is held in the public trust and must not be treated as a disposable financial asset," but I must be mistaken.  If that were true, this sale could not be happening.

You might also think that the sale of these four hundred works "sends a message to existing and prospective donors that museums can raise funds by selling parts of their collection, thereby discouraging not only financial supporters, who may feel that their support isn’t needed, but also donors of artworks and artifacts, who may fear that their cherished objects could be sold at any time to the highest bidder to make up for a museum’s budget shortfalls."  But again, you'd be mistaken.

These are funny "principles."  Apparently they only apply some of the time.

Groundhog Day

I’ve basically been avoiding the latest deaccessioning controversy, in large part because it’s all so depressingly familiar – the usual suspects compete with each other to see who can seem the most outrageously outraged by the outrageous violation of the “ethical” code of those learned ethicists at the AAMD, and then some sane voices arise in response but are simply ignored.  So, as my contribution to the “discussion,” let me call attention to a few of those saner voices in particular.

First, a new member of my Deaccessioning Hall of Fame:  Mass MoCA’s Joe Thompson, who notes that the decision has “drawn more than its fair share of criticism that is at once overwrought and seemingly oblivious to stark facts, which reminds me of the powerful effect of art on even the most generous and considerate of souls, many of whom are friends and respected colleagues,” says “Let's get real: The museum's survival is at stake,” and closes with:  “The dedicated staff and trustees of the Berkshire Museum are not ‘douchebags’ or ‘plunderers’ or ‘phantoms’ or ‘treasonous.’ They are smart, hard-working professionals and attentive, generous volunteers who are tending one of our region's most important institutions at a precipitous moment in its history.” I would add that they’re not repulsive or Stalin-esque either.

Next is Brian Frye (who will be the first scholar-in-residence once we open the Hall of Fame):

“[T]he AAM and AAMD tacitly admit that there is no legal prohibition on museums selling artworks and using the proceeds for anything they like. But they argue that selling artwork for any purpose other than buying more artwork is ‘unethical.’ Why? It is unclear and unstated. Apparently, the AAM and AAMD think it would be ‘unethical’ for a museum to sell an artwork in order to, say, fund free admission or sponsor community arts activities. Or, as in the case of the Berkshire Museum, to prevent bankruptcy and chart a new institutional direction.  They can't be serious. Indeed, merely stating their argument exposes its absurdity. As the museum and its supporters have argued, the museum's decision is not only ‘ethical,’ but also probably required by the board's fiduciary duty to the organization.”

And last, Tim Schneider says the outrageous outrage in response to the move is “an ideologically pure, dependably crowd-pleasing position to take,” but “its naiveté also makes me want to start throwing large objects long distances out high windows.”

"Is the art world's conventional wisdom on copyright infringement and fair use driven by nature of the use or the nature of the parties?"

"In other words, does the art world simply think it is fair use if an 'artist' (i.e. insider) copies a 'professional' (i.e. outsider), but infringement if it is the other way around? Zaretsky implies the answer is 'yes.' And I am inclined to agree with him. If anything, the infringement case against Prince is stronger than the cases against LG and Jenner. And yet the art world (mostly) seems to think that LG and Jenner are infringing, but Prince is not. In other words, artists want the right to copy others, but also the right to stop others from copying them. Understandable, but not terribly compelling."

Brian Frye at the Faculty Lounge, responding to my post from last week.

"Canada Debates Whether Gift of Leibovitz Photos Is Also a Tax Dodge" (UPDATED)

The New York Times has the story here.  Michael Rushton has some Twitter thoughts starting here.

UPDATE:  "A Canadian government panel has decided against certifying an entire collection of 2,070 photos by the photographer Annie Leibovitz as culturally significant, as had been sought for tax purposes by the Art Gallery of Nova Scotia, the museum that owns them."

Keeping Up (UPDATED)

In what I believe is the first appearance by a Kardashian at the blog (not counting Kanye), artist Sarah Pope has brought a copyright infringement suit against Kylie Jenner.  Story here.  The Daily Beast story includes the following:

"'Copyright doesn’t protect ideas but it does protect expression, and there are a lot of similarities between Pope’s image and Jenner’s beyond the idea of a neon mouth,' Robert Clarida, an intellectual property lawyer and author of the treatise Copyright Law Deskbook, told The Daily Beast. 'This is a pretty strong case and one that would have to go to jury, and that’s bad news for Kylie because as a defendant you want to get it thrown out on a motion to dismiss or on summary judgment. But this case wouldn’t lend itself to that.'"

Brian Frye tweets:  "In theory, I don't see how the concept of a lip bite surrounded by neon can be copyrightable subject matter. But no predicting courts."

My question, again, is:  Can you think Richard Prince should win but Kylie should lose?  Can those positions be reconciled?  Or do the two cases stand or fall together?

UPDATE:  Settled.

"As the court notes, cases finding fair use at the motion to dismiss stage are rare."

Venkat Balasubramani:

"I’m intrigued by the decision by Prince’s lawyers to file a motion to dismiss. That seemed like a long shot here, but perhaps they were hoping the court would take the opportunity to convert the motion into one for summary judgment."

In the same post, Eric Goldman adds:

"Prince’s failure to win the fair use defense here isn’t very surprising. His fair use defense will get more traction on the summary judgment motion (though there are no guarantees of victory). However, to me, the adjudicatory costs of a fair use defense are one of its weaknesses. Prince may be able to afford the litigation costs, but many mom-and-pop content producers will fold long before the case can get to summary judgment or trial."

"He is up front about the fact that his proposed catalogue raisonné addition 'has no connection to the official Andy Warhol Catalogue Raisonné sponsored by the Andy Warhol Foundation for the Visual Arts.'"

Richard Polsky is expanding his Warhol authentication services to include an "addendum" to the Warhol catalogue raisonné, which will include "works that have been previously rejected by the Andy Warhol Foundation for the Visual Arts."

"I'm 100 percent sure that they are in Ireland. Hundred percent sure. No doubt in my mind."

Was the IRA involved in the Gardner Heist?

Bananas

I'm a little late on this one too, but the 9th Circuit heard oral argument in the ridiculous monkey selfie lawsuit last week.  It sounds like it didn't go so well for the monkey side:

"'There is no way to acquire or hold money. There is no loss as to reputation. There is not even any allegation that the copyright could have somehow benefited Naruto,' said Judge N Randy Smith. 'What financial benefits apply to him? There’s nothing.'

"At one point, Judge Carlos Bea considered the question of how copyright passes to an author’s heirs.

"'In the world of Naruto, is there legitimacy and illegitimacy?' Bea asked. 'Are Naruto’s offspring "children", as defined by the statute?'

...

"The lawyer for Slater’s publisher, which is also a defendant, also raised the question of whether Peta has even identified the right monkey – something that Slater [the photographer] disputes.  'I know for a fact that [the monkey in the photograph] is a female and it’s the wrong age,' he said. 'I’m bewildered at the American court system. Surely it matters that the right monkey is suing me.'"

Speaking of appropriation

Donald Graham's daughter had this to say about Richard Prince's use of her father's work:

"That Richard Prince stole his work for his crass commercial purposes is not only against the law, it is an affront, an ugly reminder that successful artists such as Richard Prince believe themselves beyond the law. They can steal now and pay later from their profits."

Actually, that wasn't Graham's daughter at all; it's Lygia Pape's daughter, who just brought an infringement lawsuit against LG Electronics. (I changed a few words.)

The challenge for those seeking to make sense of this area of the law is to distinguish the two cases.  Why are some kinds of appropriation okay and others not?  What is the theory?

Bringing Home the Bacons

Three of them, at least.  Story here.  Background here.

"What can account for this peculiar set of rules, which seem to prevent museums ... to take actions that are not only consistent with, but would often seem otherwise mandated by their charitable purposes?"

At the Faculty Lounge, Brian Frye has some thoughts inspired by the fact that most museums can only show 2-4% of their collection at any given time.  And he teases an upcoming article tentatively titled "Deaccessioning Norms are Unethical."  I love it already.

"How much can you conserve an artwork before it becomes something entirely different?"

"This question is at the heart of a lawsuit filed in New York earlier this week by the artist Cady Noland."

Motion to dismiss denied in Prince-Graham fair use case (UPDATED)

I was on a plane all day yesterday, so am a little late getting to this.  Laura Gilbert has the story in The Art Newspaper.  For background, start here.  More later after I've had a chance to read the decision.

UPDATE:  Okay, I've had a chance to read it.  It's a long opinion, but it can basically be boiled down to: the fair use question is "a fact-sensitive inquiry that cannot be completed ... on a motion to dismiss."  That's it; that's all there is to it.  "[B]ecause the Court can only review the narrow set of facts that appear in the Complaint and its appended exhibits -- and because all of the plausible factual allegations contained in those documents must be viewed in the light most favorable to [Graham] -- the Court cannot conclude that any of the four fair use factors favors [Prince]."

"Graffiti Artists Are Increasingly Lawyering Up to Fight Fashion Copycats"

From The Fashion Law Blog.

Should an artist's testamentary direction to destroy unfinished work be honored? (UPDATED)

From the New York Times, the case of Edward Albee:

"'It presents a moral and legal quandary,' said John Sare, a partner at Patterson Belknap Webb & Tyler and the co-author of 'Estate Planning for Authors and Artists.' 'You may feel a moral obligation to do as you’ve been asked, but that may be in competition with a moral obligation to do what’s best for the history of arts and letters and a legal obligation to conserve the assets of the estate for the beneficiaries.'

"Eva E. Subotnik, an associate professor at St. John’s University School of Law, argued for some skepticism about such provisions.  'There is something special about these kinds of assets — they’re not just like a mansion or a fancy watch, but they’re socially valuable, and that has to play into the calculus,' Ms. Subotnik said. 'I definitely argue against full-throttle enforcement of artistic control after death.'

"But another expert on the subject, Lior J. Strahilevitz, a professor at the University of Chicago Law School, disagreed. 'Part of what we value in a great artist is not just raw ability but the ability to curate, and it’s frequently the case that artists build great reputations by being selective about what they show to the world,' he said. 'It’s problematic to force Albee to share these plays when he didn’t think they were good enough.'"

UPDATE:  Sergio Muñoz Sarmiento connects this to another current controversy over artistic control -- David Mamet's discouragement of post-show discussions -- and says:  "Why is it that if an artist wants to control her artistic property or, god forbid, destroy it, the general public seems obliged to shriek and criticize the artist? Why is it that this public thinks they know better than the artist as to the artwork’s fate and, more so, that they have some “right” to read or view it?"

Ann Althouse agrees:  "Mamet doesn't need to prove that there's something objectively wrong with post-show talks. He's the artist, and he's determining how he wants his play shown."

We all know about the rejoining-its-sister exception to being held in the public trust, right?

Katya Kazakina:  MoMA Sells Rare Masterpiece.

It's a nine-foot tall Leger mural, which was commissioned in 1938 by Nelson Rockefeller for his new apartment.  He also commissioned another mural by Matisse at the same time, which is now owned by the Museum of Fine Arts, Houston, which was the buyer of the Leger (for in the neighborhood of $6 million).

So, because the two murals are being "reunited," obviously the Leger was no longer held by MoMA in the public trust, to be accessible to present and future generations.  And obviously potential future donors will not hear about this sale and ask, Why should I give this to you? What guarantee do I have that you're not going to sell this tomorrow?  Just check the fine print in your Deaccession Police manual, under "R" for reuniting companion works.

One other interesting thing about the sale reunification:  it was a private sale, at Art Basel, rather than, as is more typical when museums sell, at auction.  David Norman is quoted as saying "'sometimes museums also place works privately' with dealers if they have clients willing to pay higher prices."  My question is: how do you know the price the client is willing to pay is "higher" unless you put it up at auction?  How do we know there wasn't someone else out there willing to pay more than $6 million for the work?

"The bill comes with the blessing of more than 100 organizations, including some of the most prominent art schools in the country" (UPDATED)

Brian Boucher reports on the proposed American Arts Revival Act, which "would assist arts workers nationwide in paying down their student debt."  More from Jillian Steinhauer here. Paddy Johnson says: "I see no chance of this ever passing."

UPDATE:  Michael Rushton tweets:  "This is (1) inequitable across students carrying debt, and (2) creates all manner of moral hazard problems. If the state wants to support artists and arts presenters, do so directly. Stay away from narrowly focused, discriminatory, gimmicky aid."