Wednesday, December 30, 2009
The court also ruled that there was no claim under NY General Business Law sections 349 and 350 because "a party seeking those remedies must charge conduct that is consumer oriented, with an impact on the public at large." Similarly, punitive damages were unavailble since "the misconduct alleged here, which arises from a private contract, does not resemble the egregious wrongdoing that could be considered part of a pattern directed at the public generally."
Tuesday, December 29, 2009
"One of the difficulties with deaccession stems from its connection to our fundamental view of art and museum governance. What is the nature of art? An art museum? Are either permanent? Can we trust the governing structures in our museums? Our inability to find common ground in crafting answers to these questions accounts for the continued difficulty. But if the arts community cannot come together and craft viable solutions to these difficulties, we are going to be left with weaker cultural institutions and risk losing more works as a result of financial difficulty."
Ed Winkleman's Top 10 New York Art World News Stories of 2009 included, at no. 2, the Salander debacle (Ed takes the opportunity to remind us that "Bernie Madoff is to Larry Salander what AIG's losses are to your personal 401(k)") and, at no. 1, the New Museum controversy.
The Boston Globe's Sebastian Smee reviews "a frankly incredible year in art," beginning with the Brandeis-Rose story ("The art world, the media, and a sizable swath of the public voiced strong opposition to the plan, and Brandeis eventually retreated - with mincing steps, it has to be said - from its original position: The museum would stay open, it promised, but it refused to rule out the possibility that art would be sold"), then "things got even weirder" with the arrest of Shepard Fairey "for graffiti-related activity" -- "embarrassing, sure - but worse was to come": Fairey's recent "admission that he had lied to a federal court judge about which photo of Obama he had based his 'HOPE' poster on. He had also destroyed evidence to cover up his lie. His lawyers dropped him. Fairey continues to do his thing, but he looks a little tarnished." Smee also mentions the controversy surrounding the Isabella Stewart Gardner Museum's expansion plans.
Another Massachusetts-centric review mentions the Fairey arrest and the Rose story ("Though the museum director was let go, the remaining staff has mounted several shows including a recent retrospective that highlighted treasures of the Rose's collection of 7,000 works, valued at $350 million before the recession. While families and businesses everywhere must also make painful economic choices, the Rose Art Museum remains on legal life support reminding patrons all art comes at a cost").
Finally, a review of the decade in Pennsylvania includes a judge's ruling "in a years-long battle that the Barnes Foundation could move its multibillion-dollar art collection to downtown Philadelphia from suburban Lower Merion."
"Museum staff have stated that they have tightened their payroll management system to prevent this type of crime from happening in the future"
It's a complicated story. The Art Market Monitor says it "involves a dizzying number of agreements and cross-conflicts between the heirs" and, "along the way, Sotheby’s became a creditor" too. Kate Taylor took a crack at a summary in the NYT last year. The settlement seems to have some deaccession-ish aspects to it:
"John Friede had paid his brothers more than $22 million of the $30 million [he had agreed to pay them], but legal fees and interest made the shortfall around $10 million ... In April, the city agreed to sell 76 works not at the museum to help pay the Friedes' debts. Only some have been sold. Under the settlement, the balance John Friede owes his brothers will be set at $5.65 million and will be paid from three sources: John Friede's one-third share of the Pierre Bonnard painting 'Le dejeuner' that he owns with his brothers; a portion of a $3.7 million payment from his mother's estate that was to go the de Young to pay for upkeep, promotion and study of the Jolika Collection; and proceeds held in escrow from the sale of some of the works not housed at the museum ...."
Wednesday, December 23, 2009
Judith Dobrzynski isn't shedding many tears.
Tuesday, December 22, 2009
"Cops say former chauffeur James Biear ripped off the 80-year-old grandson of newspaper magnate Joseph Pulitzer, stealing an Andy Warhol painting worth $220,000, a $64,000 sketch and family heirlooms from [the victim's] Greenwich Village home, police said."
The plan apparently "came to light when Biear's ex-wife told insurance investigators much of his stuff was stolen, a police source said. That's when FBI agents and cops knocked on Biear's door."
Monday, December 21, 2009
Earlier post here.
"In a November ruling, Senior District Judge Robert Propst said that Moore's paintings of football players don't infringe on any UA trademark so long as no university symbols or logos are used. However, Propst also said that ... Moore has and will infringe on the UA's copyright when he creates reproductions of his artwork that 'include any University of Alabama football uniforms on mini-prints, mugs, cups, calendars, flags, towels, T-shirts or any other mundane products.'
"Stephen Heninger, Moore's attorney, disagrees. Because Propst ruled that Moore's artwork is protected, that artwork should be able to be transferred to coffee mugs and the like. 'We think it's clear,' Heninger said. 'We own the copyright of the paintings. They're protected, so we have the right to make reproductions. We're appealing to get a clarification.'"
Alabama plays Texas for the national championship Jan. 8.
UPDATE: An important correction from Sergio Muñoz Sarmiento. The national championship game is Jan. 7, not the 8th.
He also likes Texas in the upset. I say the Tide rolls, by at least two touchdowns.
On Moore's appeal, he says "it seems pretty clear cut. If Moore owns the copyrights to his own paintings, and they don’t include any Tide logo or trademarks, then it seems to me he’s in the clear." I'm not so sure about that. When it comes to merchandise (t-shirts, coffee mugs, etc.), it's a much closer call.
Randolph's president issued a statement saying: "While we are pleased with this settlement, it in no way recovers all of the damages incurred by the College as the result of the injunction preventing the sale of the paintings at a high point in the art market."
The Hollywood Entertainment Museum is auctioning off items from its collection, not to buy more Hollywood memorabilia, but to preserve its educational programs. Quick, someone alert the Deaccession Police!
Aren't these items held in the public trust, to be accessible to future generations of Hollywood memorabilia lovers? The museum is a 501(c)(3) that enjoys the same tax benefits as any art museum. So why is it okay for it to sell its collection but a great crime when a museum wants to sell a work and use the proceeds for anything other than buying more art (including to keep from having to shut its doors)? If it's not the tax exemptions that convert a museum's assets to the "public trust," what is it?
Speaking of which, let me recommend a good piece by Evelyn Brody and John Tyler at PhilanthropyRoundtable entitled How Public is Private Philanthropy? An excerpt:
"There is a long list of tax-favored treatments ... that various levels of government afford to individuals and businesses ..., without impairing or prejudicing the underlying autonomy and private nature of the beneficiaries of such treatment. For example, individuals enjoy deductions for the mortgage interest and property taxes they pay on their homes; the exclusion of ... gain on the sale of their principal residences; deductions or exclusions for retirement contributions, health insurance, and tuition; and tax credits for higher education, dependent care, and children. Government does not claim that it is thereby entitled to dictate the lifestyle, consumption and savings patterns, childbearing and child-rearing choices, furniture tastes, or college majors and courses of study, or to make any other such decisions for individuals who claim these deductions and credits."
As I've said before, no one thinks "we" own every asset of every every church, school, etc. in the country. What makes works of art any different?
Wednesday, December 16, 2009
I found this part interesting. Apparently, a limited liability company called Friends of The Met was formed to raise money for the museum. If the museum were to close, the LLC "would be repaid at least in part by the sale of the museum's assets, including its art collection" (my emphasis).
So let me get this straight. A struggling museum cannot sell art to keep from closing. That would be awful, a violation of the public trust, repulsive, Stalinesque, you know the rest.
But if it closes, what happens to the art?
It's sold, to pay off creditors of the museum.
Does that really make sense to anyone?
"This is the only time I can think of when someone has allegedly stolen something and soon thereafter has consigned it himself to public auction"
Monday, December 14, 2009
Friday, December 11, 2009
"The institution anticipates that it will not be able to resume these or any other payments with respect to the bonds for the foreseeable future"
Some would say that some would say that the museum should just sell a couple of Henry Dargers to take care of the problem.
But what I would say, first, is: Why does it have to be a couple of Dargers? We keep being told that museums have mountains of stuff in their basements, just taking up space. Why is it completely off limits to even consider selling any of that "stuff"? Museums routinely cull through their collections to identify the less essential items they can sell to raise money to buy more art (without controversy). Why is it out of bounds to wonder about the sale of those very same items (presumably not Dargers) to help a museum in financial distress?
And second, as a last resort, if it meant the difference between the museum continuing to operate or going out of business (or, perhaps, being "stolen" by the evil museum-thieves in Philadelphia), would it really be wrong to think about selling even a couple of Dargers? Apparently the museum owns all four of the unpublished manuscripts that were discovered at Darger's death ("comprising more than thirty thousand pages of text"), "approximately three thousand items from Darger's archive of ephemera and source material," and "more than two dozen paintings." If the museum ends up owning the manuscripts and archive but, say, 22 paintings instead of 25 -- if that's what it takes to keep it alive (and out of Philadelphia) -- is that such a terrible outcome? Or is it better to let them fail?
It's hard to tell from these initial reports just how serious the museum's problems are, nor do we know how far the sale of any of the art (of the Darger or non-Darger variety) would go towards solving those problems. But the attempt to preemptively rule out certain possible solutions strikes me as unwarranted.
UPDATE: Felix Salmon: "the chances of a happy ending here, for anybody concerned, are still very slim."
Thursday, December 10, 2009
"The implication of the decision seems to be that, if California had extended its statute of limitations for all stolen property claims (or for all claims of stolen artwork in particular), then the claim would have survived. California can host any number of Nazi-looted art cases if it wishes - even if the point is to 'rectify wartime wrongs' and even if they require courts to review restitution decisions made by other countries. But what it cannot do is extend the statute of limitations for those claims. It's a strange result."
"Taking a practical, user-friendly approach to legal topics for visual artists, this course will address how to protect yourself and your artwork in a way that's easy to understand. Topics will include consignments, copyright registration and the Visual Artists Rights Act, as well as basic contract-law principles that will help you better understand the legalese in art-world agreements. We will draft consignment and commission agreements, and review the common terms of gallery representation arrangements. Learn what your legal options are if things go wrong, such as damage to your work, gallery non-payment and copyright infringement."
Wednesday, December 09, 2009
Tuesday, December 08, 2009
'The position of the American Association of Museums and the Association of Art Museum Directors is that it is always wrong unless the funds are used to buy new art. I disagree. Suppose you have a museum in a city that has fallen on hard times and its base of support has diminished but it still has a great collection. You wish to make sure that the museum stays open six days a week, that its artworks are being conserved and that it’s able to put on adventurous exhibitions, but you don’t have the money to do any of this. As you cut costs, you are in particular danger of weakening the conservation program, so that the fundamental function of the museum, as a guardian of works, is jeopardized. In that circumstance, it seems wrong to say, 'Well, you can’t do anything that involves the art.'"
I'm immediately inducting Gordon into my Museum Director Hall of Fame (along with Hugh Davies, Richard Armstrong, and Christine Miles). I mean, how is what Gordon says even remotely controversial?
Thanks to the Deaccessioning Blog for the pointer. Related Deaccessioning Blog posts today:
Did Deaccessioning Thoughts Lead to RISD Director's Ouster?
Economic times will force us to face reality.
Monday, December 07, 2009
- Bloomberg reports that "Italian police seized art work valued at more than $149 million belonging to Calisto Tanzi, founder of Parmalat Finanziaria SpA, who is on trial for fraud linked to Italy’s biggest bankruptcy." Lots more from Greg Allen, who says "there's little to warrant the term 'masterpiece' at all, and it's hard to see how to get to the EUR100 million value the police claim the stash is worth. But it makes for a neater headline."
- Edelman Arts apparently got a $750,000 default judgment against Gmurzynska gallery in a lawsuit over a damaged painting, then got US marshals to seize four paintings from the Gmurzynska stand at Art Basel Miami Beach "only 90 minutes before the first VIP guests entered" -- but the matter was then quickly resolved and the works returned. The Art Newspaper has the story here.
- "French police detained 12 people in a sweep of a respected Paris auction house Wednesday after finding a stolen Courbet painting worth $1.3 million at an employee's house."
- An update on a violent art theft in the U.K. a couple of years ago.
- "A reminder of how clever fraud can be."
Sunday, December 06, 2009
He also says that the move "was, in fact, anticipated by Section 11 of the Barnes Foundation Indenture," which includes the following:
". . . should it for any other reason become impossible to administer the trust hereby created concerning said collection of pictures, then the property and funds contributed by Donor to Donee shall be applied to an object as nearly within the scope herein indicated and laid down as shall be possible, such application to be in connection with an existing and organized institution then in being and functioning in Philadelphia, Pennsylvania, or its suburbs."
Thursday, December 03, 2009
"Why stop to figure out just what is worrisome about the new rules and proposed laws when you can simply express indignation or outrage?"
"The film, for me, seriously undermined its own credibility by committing errors of substance and emphasis"
Wednesday, December 02, 2009
"It raises the question of whether a private foundation such as this has any legal obligation ... to authenticate"
The case involves two theatrical stage sets (and related material) that the plaintiff claims are works by Alexander Calder. He submitted them to the Calder Foundation for authentication in 1997. He claims he never got a response one way or the other, and that without a confirmation of authenticity from the Foundation, he cannot sell the work. The trial court granted the defendants' motion to dismiss. The First Department has now affirmed.
First, the good news for similarly-situated foundations. The panel begins by noting:
"Whether the art world accepts a catalogue raisonne as a definitive listing of an artist's work is a function of the marketplace, rather than of any legal directive or requirement. As a consequence, neither the creation of such a catalogue nor its inclusion or exclusion of particular works creates any legal entitlements or obligations" (emphasis added).
"[A] declaration of authenticity would not resolve plaintiff's situation, because his inability to sell the sets is a function of the marketplace. If buyers will not buy works without the Foundation's listing them in its catalogue raisonne, then the problem lies in the art world's voluntary surrender of that ultimate authority to a single entity. If it is immaterial to the art world that plaintiff has proof that the sets were built to Calder's specifications, and that Calder approved of their construction, then it will be immaterial to the art world that a court has pronounced the work 'authentic.' Plaintiff's problem can be solved only when buyers are willing to make their decisions based upon the Work and the unassailable facts about its creation, rather than allowing the Foundation's decisions as to what merits inclusion in its catalogue raisonne to dictate what is worthy of purchase."
In sum, the case turns on "whether a duty is owed to plaintiff by ... the defendants that would entitle him to any of the relief [he] seeks — whether based on the Foundation's not-for-profit status, or its explicit or implicit promises or assertions, or its unique position as the sole arbiter of whether work will be included in Calder's catalogue raisonne." The panel "discern[ed] no such duty on defendants' part, and therefore no enforceable right of plaintiff to relief against them."
So far, so good for foundations that authenticate, or which are putting together catalogues raisonne: the quoted language would seem to suggest that they can reject work without worrying about getting sued. But then we come to the panel's discussion of the cause of action for "product disparagement."
The panel begins by noting that "the difficulty of applying the product disparagement cause of action to the assertions made in the present case is that plaintiff here has alleged no affirmative publication of a false statement to third persons." But, it continues, "as a practical matter, the denial of authentication is arguably indistinguishable from a direct assertion of inauthenticity." So failing to authenticate the work, or omitting it from the catalogue, is really just like affirmatively announcing to the world: "This work is not authentic. Stay away from it."
The panel acknowledges that "there is no question that adopting this approach and treating the Foundation's non-response as a publication asserting the Work's inauthenticity to the world at large would constitute a substantial expansion of the law. Yet the fact that non-inclusion in a catalogue raisonne is understood in the art world as a conclusion that the work is not authentic tends to support the application of the cause of action in circumstances such as these" (emphases added).
After taking us that far, though, the panel steps back . . . and dodges the issue: "However, we need not come to a conclusion on that point in this case because the claim must in any event fail on statute of limitations grounds." The statute of limitations for product disparagement is one year. The plaintiff submitted the work to the Foundation in 1997/98; by 2004/05, according to his own complaint, he is losing potential sales because of the Foundation's refusal to authenticate the work. Since he didn't bring suit until 2007, his claim is therefore time-barred.
The other door that was left at least partially open relates to the antitrust claim (under the Donnelly Act, New York's antitrust statute). The panel attempts to distinguish this case from the currently pending lawsuit against the Warhol Foundation, and in so doing provides a blueprint for future plaintiffs to survive a motion to dismiss:
"In holding that the complaint in [the Warhol case] successfully stated a claim for an illegal market restraint and monopolization, the district court cited a number of alleged facts: that the Board made unsolicited suggestions to owners of Warhol works that they should submit their works for authentication; that such policies as the Board has regarding authentication were inconsistently applied; that the Board reversed prior determinations authenticating works; that the Board refused to authenticate works that the Foundation had previously attempted to purchase; and that, unlike other such boards, which are composed of well qualified and well known independent experts, the Warhol Board is made up of individuals who lack experience and who are not independent of the Warhol Foundation. Plaintiff's complaint here contains virtually none of the allegations that made the restraint of trade claim viable in the [Warhol] case" (emphasis added).
I suspect this will (now) be the last complaint in this genre about which that can be said.