Boldly Go

I've been meaning to mention this Appellate Division decision affirming the dismissal of a claim against Christie's by a disappointed buyer of Star Trek memorabilia. You can read some background on the claim here. The buyer was held bound by Christie's Conditions of Sale, which in this case (1) "expressly declared that 'all property is sold as is' without any representation or warranty of any kind by Christie's or the seller" (typically not the case for fine art auctions, which come with a warranty of authenticity) and (2) "contractually precluded" him "from pursuing the massive recovery he now demands" because "the only remedy available to him thereunder would be a refund of the sale price(s) upon return of the item(s), a limitation generally permissible in contracts for the sale of goods" (a limitation which typically does apply in the fine art context).

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."

Another

The West Valley Art Museum in Arizona has closed.

Reviewing the Years in Review

The year-in-review articles and posts have been trickling in, a number of which touch on art-law related matters. Derek Fincham has the Year in Cultural Policy, including the following on deaccessioning:

"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."

I guess "in storage" is kind of like "in the public trust"

The Claremont Museum of Art has closed.

"[The complaint's] subjects swing from accusations of sex slavery to a detective's allergy to cats"

Greg Allen: Pebble Beach Pollock Case Gives Year-End Burst of Crazy.

Business Audits Down, Individual Audits Up

The TaxProf crunches the numbers.

"Museum staff have stated that they have tightened their payroll management system to prevent this type of crime from happening in the future"

A former payroll manager at the Brooklyn Museum (mentioned earlier here) has plead guilty to charges of embezzling more than $620,000 by making payments to phantom employees: "According to an affidavit released by the U.S. Attorney’s Office for the Eastern District of New York, Newton’s scam began in 2005 when he created a profile for a fictitious employee known as 'Brooklyn Museum' or 'Brooklyn.' From that time until July 2008, he allegedly issued 138 fictitious payroll checks, most of which were deposited into bank accounts that he controlled, including a joint bank account with his wife. Some of the checks issued in 2008, the affidavit says, were made payable to another fictitious employee known as 'ZYX.'"

Friede Feud Finished

At least tentatively so. The San Francisco Chronicle reports: "Most of the M.H. de Young Memorial Museum's cornerstone collection of Oceanic art will stay put under a deal that San Francisco officials have struck to resolve an inheritance dispute that threatened to have the collection dismantled. The tentative settlement ... will give the de Young clear title to 274 of 398 pieces of Papua New Guinea artwork housed at the city-owned museum - a compilation that nation's ambassador to the United States hailed as an 'unparalleled and extensive collection of masterpieces.'"

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 ...."

Claremont Closing Sunday

"Bowing to continued financial pressure and a lack of donations, the Claremont Museum of Art said today that it would close its doors to the public on Dec. 27 and move its permanent collection to a warehouse."

Judith Dobrzynski isn't shedding many tears.

Worthy Cause

I don't usually use the blog for this sort of thing, but wanted to call attention to a really terrific event that our clients Richard and Clara Serra are putting together to benefit The Family Resource Center of The Partnership for the Homeless. A bunch of great artists are participating, and it's hard to think of a more worthy cause -- looking out for the education of homeless kids. Check it out.

The Chauffeur (allegedly) Did It

I'm a little late on this art crime story, but worth mentioning:

"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."

Guilty Plea

Newsday reports: "The former director of Long Island University's Hillwood Art Museum admitted Friday to stealing nine ancient Egyptian artifacts and pocketing $32,000 from the sale of some of them, saying he did so to seek retribution against LIU for mistreating him."

Earlier post here.

"We're appealing to get a clarification" (UPDATED)

Even though, on the whole, he prevailed in his lawsuit against the University of Alabama, sports artist Daniel Moore wants the shutout:

"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 Resolution

The Randolph College deaccessioning lawsuit is over: "Lynchburg Circuit Court Judge Leyburn Mosby signed an order distributing the $500,000 bond that secured the temporary injunction that barred the sale of the art in late 2007. The bond is to be divided with $300,000 going to Randolph College. The remaining $200,000 and the interest on the bond is to be returned to the plaintiffs who raised the money in an attempt to stop the sale of four paintings from the museum."

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."

"Art is simply not an asset class which lends itself to hedge-fund strategies"

Says Felix Salmon.

"No one wants to sell your collection ..."

"... but we’ve had the collection in storage for 3 years and we felt that this was urgent enough that we needed these funds to save this program."

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?

"And of course, hundreds of others have cut staff, hours, programs"

Judith Dobrzynski counts 26 museum closures in 2009.

Poster Boy Update

Poster Boy (profiled earlier this year by Randy Kennedy in the NYT) agreed to a plea deal requiring 210 hours of community service.

Fresno museum set to close

"Absent a miracle," it looks like the Fresno Metropolitan Museum is about to shut its doors. The Fresno Bee has the story here.

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"

The New York Observer on an unusual art theft investigation.

"That will continue, regardless of where the foundation is located"

Philadelphia Weekly talks with Blake Bradford, the Barnes Foundation’s new director of education. He says: "The hang [installation of the paintings and objects] is going to be the same; the galleries are going to be the same. It won’t be the mosh pit, blockbuster experience. We’re not going to turn this place into Disneyland."

"Even security experts find the linkage of terrorism and photography dubious, at best"

Jim Johnson: British Authorities Continue to Harass Photographers (some more).

Art theft via backhoe

You don't see that very often. From the AP: "Police say a Pennsylvania man used a backhoe to break into a museum owned by his father -- the renowned fantasy artist Frank Frazetta -- in an attempt to steal 90 paintings worth $20 million." You also don't see many museums described as being "owned" by someone, so this is a pretty strange story all around at this point. [via]

"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"

The American Folk Art Museum seems to be having some financial problems.

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.

More Law School for Visual Artists

Yesterday I mentioned Jonathan Melber's upcoming course at the School of Visual Arts. Today I see that Volunteer Lawyers for the Arts has a similar series starting in February, taught by artist and lawyer Sergio Muñoz Sarmiento. Details here.

Annie Leibovitz Update (UPDATED)

In today's New York Times. The Art Market Monitor says "the resolution of her deadline with Art Capital seems to have come at great cost by adding more debt to the already substantial pile."

UPDATE: Felix Salmon: "the chances of a happy ending here, for anybody concerned, are still very slim."

New Journal of Art Crime Column

The new issue of ARCA's Journal of Art Crime is out. My column this time is on the Ninth Circuit's decision in Von Saher v. The Norton Simon Museum. An excerpt:

"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."

"The story of a fraud investigation that uncovered a philosophical problem"

Via The Art Market Monitor.

Know Your Rights

Jonathan Melber, co-author of ART/WORK: Everything You Need To Know (And Do) As You Pursue Your Art Career, will be teaching a class this winter at the School of Visual Arts called "Law School for Visual Artists." The course description:

"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."

Tips for Year-End Charitable Donations

From the IRS.

Exactly

In an interview with Sarah Douglas, David Gordon, former director of the Royal Academy of Arts in London and the Milwaukee Art Museum, has this to say about deaccessioning:

'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.

Drouot Charges

Preliminary charges have been filed against nine employees of Drouot auction house in Paris in the stolen art case mentioned in the weekend wrap-up here. The New York Times explains that "under French law, preliminary charges give the judge more time to investigate and determine whether to send the case to trial." Mark Durney says: "Now that charges have been filed, it should be interesting to see if any other illicit art surfaces during the process of discovery."

"We can confirm we had a report of a stolen brick from a gallery and we are investigating it"

A brick work by artist Gavin Turk was stolen from a gallery -- and replaced with a much less valuable brick, with the words "Thank You Have a Nice Day, Next" printed on it. Story here.