"What counts as ‘fair use’? Debate over Warhol's appropriation of Prince photograph rumbles on"

 Martha Lufkin surveys the scene.

"Man Is Accused of Attempting to Sell Fake Basquiats and Harings"

New York Times story here.

"German socialite Angela Gulbenkian pleads guilty to theft in London court"

"The charges against her stemmed from the fraudulent sale of a £1.1m Yayoi Kusama pumpkin sculpture to a Hong Kong collector, while a similar claim against her over a Warhol portrait remains in German court."

Some background here.

"In custody is not a gang of thieves who planned a Hollywood-style heist, but a 49-year-old construction worker, with the Twitter name ArtFreak, who was arrested on Monday."

NYT:  "Stolen Picasso and Mondrian Paintings Found Stashed in a Ravine in Greece." "The theft appears to have been years in the making as an obsession with art morphed into something criminal. The suspect, who was remanded to police custody after appearing before an investigating magistrate on Thursday, is reported to have told the police that he had 'always been interested in art.'"

Playing Darts with a Rembrandt

NYT: Why Do People Want Jeff Bezos to Buy and Eat the Mona Lisa?

Includes the following:

"'You might get indigestion, but there is nothing stopping you under U.S. law from eating the Mona Lisa if you own it,' said Amy Adler, an art law expert and professor at the New York University School of Law. 'We only protect works for the life of the artist, with a few minor exceptions, but that’s basically the rule under the Visual Artists Rights Act.'

"In France, droits moraux, or 'moral rights,' would typically protect an artwork from such an act. 'Moral rights protect artists from the alteration, mutilation, or harm to their works that would be damaging to their reputation,' said Mr. Urice.

"But Leonardo da Vinci’s works aren’t covered by them, Mr. Urice added. 'The statute wasn’t enacted until the 19th century, and certain aspects of moral rights in France descend to heirs who can enforce them, but the statute would not be retroacted to the 16th century.'"

"It’s a reminder that American museums deaccession all the time, and have done so for years."

The Washington Post's Sebastian Smee takes a look at what has actually happened since the AAMD relaxed its deaccessioning rules at the beginning of the pandemic. The bottom line:

"[T]he AAMD’s decision to loosen its restrictions on deaccessioning hasn’t really resulted in the bonanza for auction houses that many predicted. In fact, when you even it out, sales from art museum collections have been more or less in line with sales pre-pandemic. ... In 2020, the number of institutions consigning work to Sotheby’s and Christie’s remained about the same as in previous years."

It's almost as if the Deaccession Police have a tendency to overreact to things.

Another tragic deaccessioning story

The Thomas Cole painting "controversially sold" by the Newark Museum recently ("More than 50 cultural historians and critics [had] released an open letter denouncing the sale as a 'senseless monetization' of the art") has ended up ... 90 miles away, at the Philadelphia Museum of Art: "It was purchased from the auction by the Thomas H. and Diane DeMell Jacobsen PhD Foundation, a St. Louis–based organization whose aim is to 'carefully research and obtain American masterpieces,' and donated on a long-term loan to the Philadelphia Museum, where it will be displayed in the American galleries."

It went from the public trust to the public trust, an example of the Ellis Rule in action.

"Our brief addresses the effect of Google v. Oracle, which the Second Circuit has explicitly asked for more briefing about."

Amicus brief in rehearing petition for Warhol v. Goldsmith by IP professors Rebecca Tushnet, Christine Farley and Pam Samuelson.

"Andy Warhol Foundation fights back in fair use case"

Jeanne Fromer's reaction to the recent Warhol fair use decision was that (to put the matter mildly) "fair use in art has become a bit messy in the Second Circuit with each panel pointing in a somewhat different direction" and to "hope the Second Circuit uses one of its rare en bancs to revisit this decision ...."

The Warhol Foundation has now petitioned for rehearing, and rehearing en banc, which you can read here. Blake Gopnik gets a shout-out in one of the footnotes.

"Second Circuit Fair Use Decision Sets Up Circuit Split"

More on the Warhol decision from David Steiner. Some earlier comments from Steiner in the updates here.

Fair Use Month Continues

The Supreme Court issued its Google v. Oracle decision today. Adam Liptak's New York Times story is here. The opinion is here.

"Last month, three federal appellate judges in Manhattan decided they knew more about art than any old critic or philosopher" (UPDATED)

"Whether they quite meant to or not, their ruling had the effect of declaring that the landmark inventions of Duchamp and Warhol — the 'appropriation' they practiced, to use the term of art — were not worthy of the legal protection that other creativity is given under copyright law."

Blake Gopnik on the recent Warhol fair use decision.

UPDATE: More Gopnik here: "It’s a really messy situation. And this same court seems to have handed down different decisions fairly arbitrarily about what counts as good reuse and what counts as bad reuse, what counts as a fair reuse and what counts as an unfair reuse. So it’s really a mess, and I’m kind of hoping that the Supreme Court weighs in and cleans this situation up."

Another Second Circuit Fair Use Decision

This one upholding the use of the plaintiff's photo of Eddie Van Halen playing guitar in an exhibition of rock n’ roll instruments on the Met’s website. Story here. Opinion here.

The use passed the transformativeness test because "the exhibition transformed the Photo by foregrounding the instrument rather than the performer." Whereas the photographer's "stated purpose" in creating the photo was to show “what Van Halen looks like in performance,” the Met exhibition "highlights the unique design of the [depicted] guitar and its significance in the development of rock n’ roll instruments." Further, "the Photo appears alongside other photographs showing the physical composition of the guitar, which are collectively accompanied by text discussing the guitar’s genesis, specifications, and impact on rock n’ roll music, not Van Halen’s biography or discography. This context 'adds something new, with a further purpose or different character, altering the [Photo] with new expression, meaning, or message.'"

There you have it. Totally consistent with Warhol, and with Cariou before it. I think the principle in the Second Circuit is that there will be a finding of fair use, as a matter of law, when the use in question is fair, and, conversely, there will be a finding of no fair use when the use in question is not fair. All crystal clear.

"Anne provided a needed corrective to the recent declarations by some commentators that museum trustees should be condemned for not entirely defraying museums’ outsized budgetary shortfalls from their own pockets."

Lee Rosenbaum has a round-up of some comments from the "old school" side of the aisle at the recent Syracuse Deaccessioning symposium, including more from Anne Pasternak (who Lee says "pragmatically acknowledged the merits of both sides of the deaccession dialectic, and gamely tried to steer between them") in response to the "it's on their fat asses" wing of the Deaccession Police:

"Can I just stand up for boards? It’s really made me crazy how people are just, like: 'All these museums have billionaires on their board and they really should be paying for everything.'

"I find that so perplexing at best. First of all, very few institutions have bunches of billionaires on the boards. I happen to be blessed with a very generous board of directors whose giving keeps increasing. But we can’t expect a public institution that was founded over 200 years ago to be solely funded by a handful of privileged people. I find it so bizarre that that’s even a conversation out there.

"I think it’s time to get real about boards. They’re under such scrutiny that you have to be courageous to be on a museum board these days. So I think we need to have a real conversation about what it means to run these institutions and the roles of boards who, in many of our cases, are already being extraordinarily responsible and generous, and not just look to a handful of people to solve all of our problems."

"While the end result ... will be hailed by photographers and other similarly-situated content creators, it also ratchets up the confusion meter for anyone sitting on the sidelines trying to make sense of the Second Circuit’s fair use landscape."

Copyright Lately's Aaron Moss has a similar reaction to mine re the Second Circuit's Warhol decision:

"The clear import of Goldsmith is that courts should not automatically recognize any alteration to an original work as transformative—regardless of who’s doing the altering. The problem, of course, is that the court really hasn’t offered any guidance on what is transformative. Why was Richard Prince’s composition, color palette and media deemed 'fundamentally different and new' compared to the original work, but not Warhol’s? Why was the Second Circuit able to decide that Warhol’s image wasn’t protected by fair use as a matter of law when it was unable to do so for images in Cariou that are arguably less transformative than Warhol’s? Who knows."

One person who will not be shopping for t-shirts at the Deaccessioning Hall of Fame gift shop ...

 ... is Erik H. Neil of the Chrysler Museum of Art in Norfolk. Last week, he was seen in the New York Times saying "We are educational institutions. If you want to flip paintings, there are many other types of institutions where you can do that, and they are called commercial galleries." (To which I wondered why flipping paintings to buy more art does not also make you a commercial gallery.)

Now he has expanded on that thought with an op-ed at artnet. It's largely in the slippery slope genre of anti-deaccessioning arguments, but with a twist. He seems to say it may be okay for larger museums to sell work, but worries that sets a bad precedent for smaller museums: "The nation’s biggest museums may hold as many as two million objects each, so selling a redundant work will scarcely be noticed. At most other museums, a lucrative sale would devastate the collection under the pretense of protecting it. For the mega-museums, selling a fourth-ranked Rothko is inconsequential; for a smaller museum, selling its only Rothko might be an irreparable loss." (Though you kind of get the sense he's not that thrilled about larger museums selling things either.)

But the expanded piece seems to me to suffer from the same flaw as the one-liner in the Times. His general position seems to that "when we open our collections for sale, we undercut one of our basic reasons for existing: the duty to care for artwork for the benefit of the public." But in the same piece he mentions that, at his own museum, "we are in the midst of a lengthy collection review that includes culling 'Lost Cause' memorabilia and other works that have never been exhibited and are irrelevant to our mission. Some of these objects have been transferred to institutions better suited to interpret them. Most of the other deaccessioned works are of lower quality (a loaded word, I recognize), in poor condition, or duplicative."

He hastens to add that when they sell work, "the income is used expressly to add to our collection, not to support operations." But what he doesn't explain is why, when they open their collection for sale in that way, it does not undercut one of their basic reasons for existing. You can say you are using the sale proceeds for a good purpose, the approved purpose, the purpose that will keep the haters from hating -- but the fact remains you are opening your collection for sale. How can that even be denied? 

How can you say in one moment selling work undercuts one of your basic reasons for existing and then, in the next moment, talk about how you are culling "lower quality" and "duplicative" works and selling them?

How is this smoke and mirrors act still going on?

Eight Takeaway from Last Week's Deaccessioning Conference

From Brian Boucher at artnet. (I mentioned the conference earlier here.)

I liked this bit:

"While museums may collect with relative freedom, independent curator and writer Glenn Adamson pointed out that they are subjected to intense scrutiny when selling they sell, and the headlines bear that out. ...

"When they opt to sell, expect 'scorched earth criticism by bloggers,' added lawyer Mark Gold.

"[The San Diego Museum of Art's Roxana Velásquez], on her panel, appealed for more propositions for solutions than just criticism. The current crisis, she said, showcases museums’ most pressing needs. Those in the hot seat need great ideas and empathy. 

"But [the Brooklyn Museum's Anne] Pasternak was defiant. Let bloggers criticize, she said.

"'Haters gonna hate.'"

In related news, I'd like to announce the first item of merchandise for our new gift shop at the Deaccessioning Hall of Fame: "Haters gonna hate" t-shirts, in all sizes, coming soon.

Pasternak has been on a roll lately. She had a great quote in the recent New York Times piece on the state of the deaccessioning debate:

"People will say trustees can pay for this. What planet are they on? Why is it the trustees’ responsibility to pay 100 percent of expenses for public institutions? That attitude is conflicting at best. It’s misinformed to think that every museum has a board full of billionaires."

(Depending on how the "Haters gonna hate" tees sell, we may do a line of "What planet are they on?" merchandise next.)

Boucher's piece addresses this "it's on their fat asses" point too:

"'Boards are not banks,' Everson board chair Jessica Arb Danial said. 'They are fiduciaries.' What’s more, the Everson doesn’t have a single billionaire on its board, she said. ...

"On her panel, too, Pasternak called the assumption that her board could simply write checks to cover pandemic shortfalls 'perplexing.'

"Likewise, Mark Gold, a partner at Smith Green and Gold, in Massachusetts, who was counsel to the Berkshire Museum, called it 'offensive' to assume that boards are stocked with super-wealthy members, saying that he works with institutions whose boards include local business owners and school teachers."

"Aren’t we still, basically, in the dark?" (UPDATED 3X)

That's how I ended my post on the Second Circuit's Prince-Cariou decision, back in 2013.

After yesterday's decision in the Warhol-Goldsmith case, I'm afraid we're more in the dark than ever.

In my initial post on the District Court decision in the case, I said there were two ways to look at it.

One was that "this Judge saw this particular use as transformative.  If you put the same facts before another judge ... the result could very easily have gone the other way.  On this reading, there's still no way to have any confidence about how any given fair use case will be decided."

The other was to read it as standing for the proposition that "as long as you can make a reasonable, good faith case that your work is transformative (even if there are other interpretations in which it's not), it's fair use." That would have been a big deal in fair use jurisprudence.

There's no support in the Second Circuit opinion for that second reading, so we're back to the first: these Judges saw this particular use differently. The closest thing I can see resembling a guiding principle is that the second work must be "in service of a 'fundamentally different and new' artistic purpose and character" such that it "stands apart from" the first work. It doesn't have to be the case that the first work is "barely recognizable" within the second work, but it is the case that the second work "must, at a bare minimum, comprise something more than the imposition of another artist's style on the primary work such that the secondary work remains both recognizably deriving from, and retaining the essential elements of, its source material." Ok, good luck with that.

The opinion is here.

Jeanne Fromer says "the court seems to focus merely on the literal differences between the Goldsmith photograph & Warhol's Prince series in finding no transformativeness, which is something that Cariou v. Prince & Blanch v. Koons had very much rejected by looking to the message conveyed by the works" and that she "hope[s] the Second Circuit uses one of its rare en bancs to revisit this decision .... Fair use in art has become a bit messy in the Second Circuit with each panel pointing in a somewhat different direction."

More commentary as it comes in.

UPDATE: Sergio Muñoz Sarmiento: 2nd Circuit delivers devastating blow to appropriationists.

UPDATE 2: Artist/lawyer (and friend of the blog) Dave Steiner emails: "The court's holding is correct (no fair use for Warhol's Prince magazine covers), but the court missed an opportunity to clarify that the analysis depends on the context of the secondary work's use: as art works, the secondary works may be fair use even though they are not when reproduced on mass-produced, highly commercial magazine covers. With unique art works, the public interest is more likely to outweigh any commercial aspect and there is unlikely to be market substitution. Sullivan and Jacobs almost have it right: the court should dispose of the transformative test altogether because not only is it not supported by the statute, the statute contradicts it (and despite its attempt in Campbell, the Supreme Court cannot rewrite the statute: authors have the exclusive right to prepare 'transformed' works, so 'transformative' uses are not fair by definition), and instead rely on the fourth fair use factor (unique art works rarely cause cognizable harm to the market for the original work, while licenses for mass-produced magazine covers do)."

UPDATE 3: Brian Frye: "I hear Steiner's argument, but disagree that the decision is correct. In my opinion all that should matter is that the photo and the paintings aren't substitutes."

Speaking of the Deaccessioning Debate (UPDATED)

I just want to thank the organizers of last week's two-day symposium on deaccessioning at Syracuse University for including me on a panel with deaccessioning luminaries Brian Frye (the Deaccessioning Hall of Fame Scholar-in-Residence), Mark Gold, and Nicholas O'Donnell. Throughout the event I did not see a debate that was "heated" or "bitter" but rather civil and respectful at every turn. Interesting from start to finish.

And speaking further of deaccessioning and luminaries, I'm pleased to have contributed to a new three-volume collection called Collections and Deaccessioning in a Post-Pandemic World. My essay is on "Balancing the Needs of Today's Visitors Against Those of Future Generations." The list of luminaries is too lengthy to mention; you can read all about it here.

UPDATE: "The range of opinions was on full display at the conference ...."

"Selling Art to Pay the Bills Divides the Nation’s Museum Directors"

The NYT's Robin Pogrebin and Zachary Smalls have a piece on the "heated" debate museums are having about whether to make permanent the "temporary two-year loosening of an Association of Art Museum Directors’ policy that has long prohibited American institutions from selling art from their collections to help pay the bills" -- "an idea that, depending on which institution you talk to, either makes perfect sense or undermines the very rationale for their existence."

They say "the longstanding policy" in the field has been "that the art owned by institutions was held for the public benefit and, as such, should be mostly retained."

Framed that way, I don't think there's anyone who would disagree. Everyone agrees the art should be mostly retained.

The traditional AAMD view is that it should be mostly retained, except it can be sold to buy more art. (This is not "monetizing," even though you are taking the money from sales and using that money to do something else, i.e. buy art.)

Those on the other side of the heated debate believe that the art should be mostly retained, except it can be sold to buy more art and, occasionally, for other pressing needs.

Various views are expressed.

Erik Neil of the Chrysler Museum of Art in Norfolk says "We are educational institutions. If you want to flip paintings, there are many other types of institutions where you can do that, and they are called commercial galleries" -- but he doesn't explain why flipping paintings to buy more art does not make you a commercial gallery.

The Brooklyn Museum's Anne Pasternak says "We need to really rethink some of our orthodoxies carefully so that our institutions cannot only survive but meet the demands of our time and flourish" -- and then adds this great response to the "it's on their fat asses" crowd:

"People will say trustees can pay for this. What planet are they on? Why is it the trustees’ responsibility to pay 100 percent of expenses for public institutions? That attitude is conflicting at best. It’s misinformed to think that every museum has a board full of billionaires."

Max Anderson says "To say we have billions of dollars of art and yet you’re holding out your tin cup to the community saying, ‘Please support our museum and by the way we are now able to sell art to pay our bills,’ the community will say, ‘So why are you coming to me?'" (To which Michael O'Hare might say: "If the only way by which you can make a claim on people’s wealth and the taxpayer is by lying, then sure.")

Anderson also says if a "museum steps outside of a charitable purpose and becomes more of a commercial entity,” that "opens up an entire world of hurt around the model which has for over a century governed nonprofit organizations." It's not clear to me how selling assets to be better able to serve your charitable purpose is stepping outside of a charitable purpose, but, in any case, once again, museums sell work all the time (to fund acquisitions) without anyone suggesting they thereby "become more of a commercial entity."

Finally, they mention the argument -- attributed to no one in particular but you could call it the Lee Rosenbaum position -- that "in fact, most museum collections are so full of donated works for which tax deductions have been taken that it’s fair to say they have been underwritten in part by the American taxpayer. Will the routine resale of such gifts call into question the favorable tax treatment enjoyed by museums as charitable organizations?" Michael Rushton (and I) addressed that argument here, and again I would just ask: why doesn't the routine resale of such gifts to buy other, different works of art (which even the bitterest critics of any change to existing policy admit is "a routine activity of art collection management") call into question such favorable tax treatment?