Tuesday, December 13, 2011


  • NEW YORK. Christie's may have successfully defended the fraud claims brought against it by Guido Orsi but as Donn Zaretsky says, the "chilling effect" of the principle (aka legal precedent) established by the suit remains: an auction house can be sued by a third party that has no contractual relationship whatsoever with such auction house.
  • LONDON/NEW YORK. The threat of legal action in connection with authentication opinions and compilations of catalogues raisonnés is having a "freezing effect on scholarship." As contemporary art prices continue to rise, the perception among academics is that collectors will go to far greater -- and litigious -- lengths to safeguard the economic (and indirectly, art historical) value of their art holdings. The fact that in reality the likelihood of an expert being sued is apparently "quite remote" is irrelevant so long as the perception continues to be otherwise. (Cf. to this post on the structuring of claims against authentication boards as anti-trust suits).
    See also a related piece by Jack Flam in the Wall Street Journal. The article states that compiling a catalogue raisonné is a "scholarly undertaking independent of the market" but I would have to disagree in that the inclusion/exclusion of a work submitted to a catalogue raisonné committee will affect its value on the market in a way not hugely dissimilar to an authentication board declaring a work "Approved"/"Denied" (except perhaps for the fact that compiling such catalogues is often a decades-long effort and so the effect on price is probably less severe as decisions take longer to make and are more often overturned as scholarly research evolves over time).
  • WASHINGTON D.C. Plaintiffs argue that "they have lost free speech rights and that Congress cannot erode the public domain." The Supreme Court is set to rule on a suit that centers around whether works of foreign authorship should be carved-out of the public domain and given copyright protection notwithstanding that their creators failed to comply with the legal formalities necessary to be afforded such protection. The government has defended the law on several grounds including the need to meet its treaty obligations but surely that's not the main concern given the number of other provisions of the Berne Convention (e.g., those related to moral rights) that have yet to be implemented under federal law...
  • FLORENCE. "No bankers. No Renaissance"? That seemed to be the message at a gathering in Florence of the most influential figures in the art world to discuss the intersection of art and finance. Hardly a novel idea (nor was the acknowledgment of the Eastern shift of the art market) but still interesting to see such an opinion openly and unashamedly aired given the enduring stigma attached to making a connection between art and finance.

Friday, December 09, 2011

Affirmative action for non-Western art? No thanks.

Judith Dobrzynski recently posted a fascinating piece on some of the issues raised by Hicham Daoudi's three-year €450,000 grant to the Pompidou Center that "must be spent on art by Moroccan artists." While there's no doubt that the "source market" of an artistic object has a strong bearing on the value the international art market confers on such object -- with a lesser value being given to art originating from "transitional" and "developing" economies, to use Iain Robertson's terminology -- museums like the Pompidou are supposed to be independent (if there ever was such a thing in the art world) barometers of the aesthetic and art historical value of cultural artefacts and "affirmative action" grants entirely compromise their role. Furthermore, as the managing director of Art Holding Morocco and founder of the Marrakech art fair, it's Daoudi himself who stands to gain the most from the grant as the Pompidou's seal of approval will greatly enhance the value of his art holdings in Morrocan artists. Cunning market manipulation on Daoudi's part and an unfortunate precedent on the Pompidou's (notwithstanding that yes, museums are strapped for cash and money is apparently fungible...).

For more on the Marrakech art fair, click here.

Monday, December 05, 2011

Unexpected closing of Knoedler gallery arouses suspicion

NEW YORK. A Knoedler & Co. rep told Bloomberg the closure of the 165-year old UES gallery was a "business decision" but the unexpected announcement raised eyebrows as it came one day day after GLG Partners Inc. co-founder, Pierre Lagrange, filed suit in federal court against Knoedler and its former director Ann Freedman for allegedly selling him a fake Pollock back in 2007. Attempts by Lagrange to resell the $17m Pollock at auction in 2010 failed as both Sotheby's and Christie's "refused to accept consignment because of concerns about authenticity." The decision to close its doors may indeed be wholly unrelated to the Lagrange lawsuit but it certainly will not flare well in court.

Wednesday, November 16, 2011

Reuniting J.M.W. Turner's bequest: the search for justice continues

Childe Harold's Pilgrimage, J.M.W. Turner (1823).
Oil on canvas. Tate Gallery, London
LONDON. When J.M.W. Turner died in 1851, he bequeathed "about 300 paintings and 30,000 drawings as well as a large sum of money" to the nation of Great Britain on two conditions: (i) that the works be displayed in a "Turner Gallery" at the National Gallery in London and (ii) that the money be used "for the foundation of an almshouse for elderly artists in the South London suburb of Twickenham." However, after the artist's death, his descendants were successful in challenging his will on the grounds of the absurd "Mortmain law" of 1736 and, despite the House of Lords' Select Committee holding in 1861 that the conditions had to be fulfilled, Turner's wishes have never been met.

The concept of donor intent is riddled with problems, the most notable being the issue of courts having to decipher -- invariably many decades after the donation was made -- what the donor's intent was, and, assuming a court is able to come up with a formulation, whether or not the intent can in fact be fulfilled. Then, of course, there are the public policy concerns related to limiting the scope of a person's right to tie-up property (personal or real) from their grave balanced against the need to incentivize charitable donations. Setting aside my own misgivings about the notion of "donor intent", why it is that the Select Committee's decision of 1861 -- the highest court in England and Wales -- was and continues to be ignored is uncertain and wholly unsatisfactory. It would appear that the artist's intent was pretty clear (the Royal Academy arguing otherwise) and there has been no attempt whatsoever to honor it even though this would still be possible today with respect to the artworks and the underlying reason for the condition (not that this should really matter, legally-speaking at least) was precisely to display the paintings in a cohesive manner for the very benefit of the recipients of the Turner Bequest.

Today Ray Turner (descendent of the artist) and Selby Whittingham (Turner scholar and founder of the Turner Foundation) continue the quest for justice on behalf of the late artist. Next they will meet with the House of Lords' All-Party Arts & Heritage Group to discuss the 1861 Select Committee decision. I personally agree with Whittingham in that "[Turner's] bequested pictures would gain a lot in coherence and interest if shown together" and Turner being one of my favorite painters of all time, I very much hope a "Turner Gallery" is opened one day soon, whether at the National Gallery or another museum.

Monday, November 14, 2011


  • BENTONVILLE, ARKANSAS. Alice Walton’s long-awaited Crystal Bridges Museum of American Art finally opened its doors to the public on Friday. The museum is "endowed with $800 million from the Walton Family Foundation" -- much to the dismay of the disenfranchised Wal-Mart employees who are teaming up with Occupy Wall Street to protest the construction of the museum -- and admission will be free. The collection is said to be "far from comprehensive" with American impressionism in particular needing "beefing up." You may recall that last year the Chancery Court for the State of Tennessee rejected (twice) the deal struck between Fisk University and Walton to share the Stieglitz Collection because it did not "closely approximate" O'Keeffe's intent for making the charitable gift. The college and the museum did, however, come up with a ("donor-friendly," of course) arrangement "whereby the two institutions will host the collection in alternate years."
  • NEW YORK. For those not able to make their way to Bentonville, the "fiercely political" Diego Rivera exhibition opened at MOMA today. The highlight of this "small, jewel-box exhibition" are the five portable murals created by Rivera for his retrospective at MOMA in 1931 are reunited in the exhibition.
  • FRANCE. Remember the story about Picasso's electrician being charged with stealing 271 never-before-seen works by the artist? Artinfo has now reported that the Calder Foundation is accusing a "retired French fabricator of forging the artist's mobiles." In light of the unfortunate incident back in 1999, let's hope they don't destroy the nine mobiles until they've been conclusively proven to be fakes (though it's also not the first time a fabricator is accused of ).
  • LONDON. The hunt for missing government art continues in London. I suppose the fact that the department responsible for maintaining proper records had "woefully inadequate" funding would likely absolve it and the government of any legal liability for lost art. "Outrageous news" nonetheless.
I'll be posting on last week's contemporary sales in New York in a couple of days but for now, I leave you with an excellent op piece in The Art Newspaper about the art buyers of tomorrow and how "of all the forces that will affect the [art] market, demographic change is probably the most important."

    Sunday, November 13, 2011

    NYCLA 4th Annual Art Litigation and Dispute Resolution Institute

    NEW YORK. Next Friday, November 18 the New York County Lawyers' Association (the "NYCLA") will host the 4th Annual Art Litigation and Dispute Resolution Institute. The day-long event promises to be an unrivalled opportunity for lawyers and non-lawyers to discuss some of the most pertinent legal issues affecting the art world today. The experts attending include Lawrence M. Kaye (of Herrick, Feinstein), Judith Bresler (of Withers Worldwide and co-author of the art law treatise, "Art Law: The Guide for Collectors, Investors, Dealers and Artists" (3rd ed.)), Sandra Cobden (SVP and General Counsel of Christie's and adjunct professor at Cardozo Law School) and Andrea Crane (curator at Gagosian Gallery). One of the highlights no doubt will be the unique opportunity to examine recent litigation involving works by the artist Kazimir Malevich as the event brings together some of the key people tied to the Russian modernist artist today: Lawrence Kaye represented the heirs of the artist in their litigation against the City of Amsterdam (as well as MOMA and Harvard University) to reclaim artworks by their ancestor (he is also the current Secretary of the Malevich Society); Andrea Crane curated the exhibition "Malevich and the American Legacy" at Gagosian Gallery earlier this year and Clemens Toussaint is the current Treasurer of the Malevich Society.

    To enroll, click here. NYCLA members get a discounted rate.

    Saturday, November 12, 2011

    Jodi Endicott: art for our "tumultuous times"

    HAWAII. The worlds of art and finance have been inextricably linked since the ancient world though the phenomenon is most strongly associated with the golden age of art patronage in pre-modern medieval and Renaissance Europe. Wealthy royals, aristocrats and merchants not only financed the arts but also played an important role in shaping the form and subject matter of the art they sponsored. Fast forward several centuries and the seemingly polar opposite worlds of art and finance continue to inform each other -- though with the recent explosion of prices for blue-chip works, the rise of art funds and art securitization, the establishment of two art exchanges and the use of art as collateral for finance, it is the financial market that is mostly impacting the art market rather than vice versa.

    Following several posts concerning art finance and in light of the ongoing "Occupy Wall Street" protests, it seemed only fitting to publish the works of the artist Jodi Endicott whose "Stock Market Series" was inspired by the bear and bull markets of downtown Manhattan. Here are some of my personal favorites among the series and some brief words from the artist herself.

    "In 1996, the year I received an MFA, my artwork and the financial world merged. I saw the stock market as a metaphor for life's universal emotions - those of faith, hope, despair and greed. As a result, I began to pain the symbols of the market... the bears, the bulls, the traders." (Jodi Endicott)

    "Bear and Bull 2011" (mixed media work of found objects recently exhibited at ArtPrize in Grand Rapids).  

    "When you look at this painting, several things may resonate such as how the universal emotions in the market mimic those in life. How the bear and bull, good and bad, ying and yang are all about finding balance. And how much depends on whether one sees the glass half-empty or half-full."

    "Eventually my art work took a completely different turn; a direction that I thought was unrelated to the stock market. I created a series of highly-energetic and emotive water paintings, only to later realize that these paintings captured the market's tumultuous movements prior to the impending crash. First convergence. Finally the downturn impacted the world."

    "The World"

    " The Color of Money"

    "I have seen how the market can separate and encompass us...
    just as the oceans that surround us are in constant change."

    "The Scream"

    To find out more about the artist, check out "The Creativity Salon" as this week they visit Jodi at her studio in O'ahu to offer "a glimpse into the life of a well-known working artist." The interview discusses questions such as how does an artist know when a work is finished and what is the intersection between art and commentary.


    Sunday, November 06, 2011

    Who owns Henry Moore's "Knife Edge Two Piece"?

    LONDON. In 1967, Henry Moore and the Contemporary Art Society donated Knife Edge Two Piece (1962-65) to the United Kingdom. The bronze sculpture has since stood directly opposite the Houses of Parliament, admired by millions either in person or through its televised appearances in the background of news programs and becoming somewhat of a national emblem. However, the work is "badly discloured and covered with incised graffiti" and because to date it has not been possible to establish its legal owner, no one will assume responsibility for the restoration of the work. Another unfortunate consequence of this apparent legal loophole is the inability of the British Council to loan Knife Edge Two Piece for display in international exhibitions such as the Moore retrospective at the Kremlin in Moscow. According to The Art Newspaper, the British Council could not determine to whom the loan request should be addressed "though it now seems that there might have been no legal impediment to prevent the Council from simply sending the sculpture to Russia." The trade publication meticulously followed the "paper trail" in an attempt to reveal who owned the sculpture but to no avail.

    At this point, it's imperative that legal advice be sought (question is, by whom) to put this matter to rest and restore the work to its intended state. But could it be the case that no one in fact owns the work? When a person owns property, whether real or personal, his/her testament or, if the person dies intestate, the relevant jurisdiction's intestacy laws (the Intestacy Rules in England and Wales), establish who the successor owner is or owners are. Yet when it's a non-human legal person that owns property, the situation is arguably quite different. Perhaps the Crown is the residuary taker as under intestacy though that likely wouldn't solve the question of which public body is ultimately responsible. Despite Moore's seemingly erroneous recordation of the City of London as the owner of the gifted sculpture, much of the evidence points to the City of Westminster as being the recipient and caretaker of the work: "both the Contemporary Art Society and the Henry Moore Foundation said that their records showed that it is owned by the City of Westminster (which is recorded in the official Moore catalogue raisonné)" and Abingdon Street Gardens -- where the work has stood since 1967 -- are owned by the City of Westminster. Why it is that Westminster Council refuted ownership is unclear but surely that must be the starting point of the next forensic expedition to establish who owns Knife Edge Two Piece.

    Monday, October 31, 2011

    Art & finance: the rise of "art loans" for the well-heeled clients of private banks

    NEW YORK. Bloomberg recently reported that former hedge-fund manager Michael Steinhardt secured a "very cheap" loan from JPMorgan Chase Bank by pledging a number of the works in his fine art collection (estimated to be worth over $200 million) as collateral. While the use of art as collateral to obtain finance has been on the rise for some time now (Steinhardt joins the ranks of other managers such as Nelson Peltz and Steven A. Cohen), it is hardly indicative of a widespread trend in the banking sector towards lending against art. While it is true that art assets have flared quite way in the economic downtown and consecrated their place as an alternative form of investment, this is largely true of mostly "blue chip" works i.e., the Picassos, Pollocks, Warhols etc. that form part of the fine art collections of a handful of high-net-worth individuals. For the most part, investing in art is risky and expensive (transaction costs are too often overlooked) and my mantra remains that people should buy art because they love it, not in the expectation of hefty returns. Still, it's interesting to see that a growing number of banks are offering their "well-heeled" clients the possibility of structuring loans in this way. It makes perfect sense because the kind of art we're talking about in these cases really is "a stable form of collateral," as Suzanne Gyorgy of Citi Private Bank describes it. "When you look at our client base," Gyorgy goes on to say, "it's savvy business people that for the most part are using the liquidity from the art loan to invest back in their businesses."

    Warhol Art Authentication Board to be dissolved in early 2012

    NEW YORK. After a two-month break from blogging, I had no idea what stories I would find upon my return but this one was certainly a surprise. The Art Newspaper has reported that the Warhol Foundation will dissolve its art authentication board (allegedly to focus on the Foundation's charitable and catalogue raisonné efforts) by early 2012. I say "allegedly" because, notwithstanding the fact that it costs $500,000 each year to run the board, it has repeatedly come under fire since its creation in 1995, especially with respect to its virtually monopolistic role in the art market on the question of the authenticity of purported Warhol works. Although in theory the decisions of the board are neither conclusive nor binding, when a work is declared unauthentic, it is tainted to the point of being unsaleable and you can guarantee that Sotheby's and Christie's will not touch it.

    The most recent, and perhaps vehement, attack on the board was the Joe Simon litigation which, although a hard lesson in the costs and drama of litigation, raised the serious question of holding the Warhol Authentication Board (and authentication boards more generally) accountable as a result of the power they have to manipulate the market for a particular artist. The Joe Simon litigation was unique too in its novel way of structuring the claim against the Foundation as an anti-trust suit. Of course the key question in any anti-trust suit is not so much the extent to which the defendant has the power to control the market in question but rather if that power has been exploited to the detriment of the users in that market. The other highly criticized decision of the board was its 2010 downgrade of more than 100 Brillo boxes to "copies," despite Pontus Hulten's claim that the boxes had been made with Warhol's express authorization.

    Regardless of one's view of the board, most will agree that the Foundation's decision to step away from the market towards a non-market purpose is a positive one for the Foundation, its members and the market. Whereas decisions on authenticity had been private (except where challenged), work on Warhol's catalogue raisonné is a public one which serves "Andy’s legacy and Warhol scholarship." It could be argued that determining whether a work makes it or not into the catalogue is indirectly a market function but because only 6% of works by Warhol are estimated to have undergonen the authentication process and catalogue researchers will review requests to include a work in the catalogue at their own pace, the Foundation's president Joel Wachs is right in saying that "the market will have to take care of itself."

    Monday, August 15, 2011


    • WASHINGTON D.C./GREECE. The US and Greece have signed an MOU that makes it illegal for antiquities and Byzantine objects to be imported to the US without the approval of Greek authorities. The measure is aimed at reducing looting and trafficking of these culturally-protected objects. Lee Rosenbaum has criticized the secrecy involved in the decision-making process but transparency would be premature before each of the two countries has satisfied legislative procedures for the agreement's entry into force. Once the agreement is law, the Federal Register notice will publish the agreement and a "list of the types of archaeological and ecclesiastical ethnological material that will require documentation to be brought into the US."
    • LONDON. Former postwar and contemporary director at Christie's and Gagosian Gallery in London, Pilar Ordovas, is opening her own Mayfair gallery with a difference. The emphasis on historical exhibitions is in sync with the trend that "the lines between gallery and museum, corporate and curated, keep getting blurrier and blurrier."
    • LONDON. The High Court has awarded Sarah Thornton, author of the bestseller "Seven Days in the Art World" (an insightful portrayal of the art world and a hugely enjoyable read), £65,000 in damages in a libel case against Lynn Barber for her "scathing review" of the book in The Daily Telegraph. The decision doesn't "clip the wings" of criticism but makes it clear that under defamation law, "a reviewer is entitled to be spiteful as long as she is honest."
    • NEW YORK. Sotheby's, the oldest company traded on the NYSE and the only publicly-owned auction house, claims record first half results with $3.4 billion in sales. Looks like setting a new record required some "de-fudging" of the auction house's 2008 results but in any event, the results were sufficient to put Sotheby's ahead of Christie's (for an analysis of the market share reversal, see Lee Rosenbaum's post). Artinfo reports that Sotheby's CEO Bill Ruprecht attributes the staggering results to the "growth in private sales, increased demand from the Chinese market and exceptional tallies at their recent London auctions." He was also quoted as saying how China is now one of "three legs to the stool" of the art market, with the US and the Euro zone.

    Friday, August 12, 2011

    Resale rights revisited: why all the controversy?

    The artist's resale "royalty" right or droit de suite refers to an artist's right to a share of the proceeds realized from the resale of such artist's work. As the Lerner and Bresler treatise on art law astutely points out, the "prerogative is an attempt to equalize the copyright status of visual artists with that of other authors" because, unlike those creative authors who make substantial economic gains from the reproduction and/or distribution of their works, "a visual artist's primary source of income derives from the sale of the original work in which the image is embodied." In other words, copyright law alone is inadequate in the case of visual artists who warrant the protection of additional rights aimed at addressing this disparity in sources of income among artists. It is these additional rights "at the juncture of copyright, contract and property law" that are known as resale rights.

    While resale rights legislation has been enacted in over 30 countries, including the EU, Brazil and Australia, attempts to federalize the right -- the most notable being those by Senator Jacob K. Javits of New York and subsequently Senator Edward N. Kennedy of Massachusetts -- have thus far failed and at the state level, only California has introduced droit de suite (see the California Resale Royalties Act). The question of whether artists should be entitled to resale rights has proven hugely controversial in the United States as illustrated by the removal of resale-royalty provisions from the original draft of the Visual Artists Rights Act of 1987 to ensure the revised bill's passage into law in 1990. The debate centers not only over entitlement itself but also over what the scope of any enacted rights should be and how resale rights would be enforced in practice (surveys of droit de suite legislation abroad have invariably indicated that these statutes are notoriously difficult to enforce and  generally ignored by market participants). The United Kingdom too has played host to a similar debate and it was not until the EU adopted Directive 2001/84/EC that The Artist's Resale Right Regulations 2006 were (somewhat reluctantly) introduced. The opposition to resale rights in the UK undoubtedly stemmed from London's preeminence within the global art market and the fear of losing out to other markets not burdened with the transaction costs associated with the royalty but interestingly, Lerner and Bresler point to yet another reason: the UK, like the US, is a common not a civil law jurisdiction and "the droit de suite impinges on two basic precepts of common law: the freedom to contract and the inalienability of property" (see Morseburg v. Balyon for an unsuccessful constitutional challenge to the California regime).

    The Art Newspaper reports that resale rights are once again back in the spotlight as the Artists' Rights Society ("ARS") continues to lobby Congress for federal legislation that would make droit de suite apply to auction sales whilst exempting private sales. Unsurprisingly, the Art Dealers Association of America opposes the proposed legislation on the basis that the administration costs far outweigh the benefits and the reality that such costs would be borne by collectors -- the bread and butter of artists in the US -- and the majority of artists themselves, with only a handful of already successful artists actually reaping any economic gains. The one obstacle the proposal appears to have side-stepped by limiting rights to public sales is the insurmountable challenge of requiring private art transactions to be disclosed (privacy being one of the most deeply ingrained conventions of the art market). However, despite auction sales taking place in the public sphere, there is still considerable secrecy involved and many collectors will resist having to disclose their identity for the sake of paying a resale royalty. It's unclear if any rights introduced would be payable as a percentage of the total resale price, regardless of whether the resale was at a profit or a loss (as per the EU harmonization directive and the Australian model) or as a percentage of the difference between the purchase price and the resale price such that the royalty is only payable when a work is resold at a gain (as per the original Italian model and the California statute). Clearly, from a business perspective the latter is preferable but to be fair, the former is more consistent with the theory underlying the very nature of resale rights (as stated above, droit de suite is embedded in the act of reselling an original work, just like copyright hinges on the reproduction/redistribution of original works, in both cases the dollar amounts being irrelevant).

    Nevertheless, no matter what the scope of a federal resale right is (another key question being the term of the right), the costs imposed on the market and the potential loss of New York's competitive advantage over those countries with such legislation are disproportionate to the limited gains to be made by the minority of visual artists whose work even has a secondary market. Having said that, data has failed to confirm that the introduction of resale rights in the UK has driven business away from London to New York, Geneva, Tokyo or Hong Kong. Which leads me to one final remark -- to date, there is still insufficient data to argue convincingly for or against resale royalty rights.

    Monday, August 01, 2011

    ART PICK OF THE MONTH (July '11): Ode to the Romantic Schizophrenic

    Gallery View - Romantic Gothic. Courtesy of The Metropolitan Museum of Art
    "Alexander McQueen: Savage Beauty"
    The Metropolitan Museum of Art, New York

    Through August 7, 2011

    Dedicated to my dear friend Jeremy

    More often than not, fashion is fickle and fleeting, derivative and uninspired until the genius of the caliber of McQueen accomplishes that rare feat of turning garments and accessories into nothing less than a pure artistic endeavour. While "Alexander McQueen" the fashion house may evoke images of the giddiness of Paris fashion week and even mass consumption (who can forget the ubiquitous trend of the silk scarfs imprinted with skulls? I must confess I own two myself.... neither of which has seen the light of day since circa 2006), Savage Beauty pays tribute to McQueen the artist, his boundless imagination, impeccable craftsmanship and intellect for, reminiscent of the greatest of artists, the creative and the conceptual are intimately intertwined in each of his works, a more fitting noun for his creations than "designs." The exhibition itself is a marvel too.

    As you walk through the galleries in awe of the overwhelming beauty and enthralled in the sensory overload that are the sumptuous, tactile materials, resonant music and theatrical showcases (not to mention, the heaving crowds), certain themes begin to take shape though admittedly, some more convincingly than others. Rising from the assortment of delicate lace, intricate beading, deathly feathers, tough tartan wool and sensuous metal is the irresistible voice of nationalistic and anti-racist sentiment, sexual freedom and self-determination. The art critic Holland Cotter rightly points out how Savage Beauty channels any and all political and social commentary emanating from McQueen's oeuvre in the vein of Romanticism and as a result, fails to capture some of the deeper complexities of his mindset and his place among his contemporaries. Notwithstanding the escapist, Byronic nature of McQueen the Romantic, art critics will have to ask how his real-life context of 1980s and 90s London -- so strongly associated with the YBAs ("Young British Artists," the term coined to refer to the group of artists who began to exhibit together in London from 1988, most of whom were Goldsmiths graduates and had Charles Saatchi for their patron) -- shaped who McQueen was and the work he created. Undoubtedly "l'enfant terrible" and "the hooligan of English fashion" in his embodiment of the unorthodox and avant-garde and his unruly, shocking ways, we shouldn't be blindsided into believing that McQueen actually lived in Victorian England.

    This is not in any way to disparage the curatorship and research that went into such extraordinary an exhibition. Romanticism certainly works exceedingly well as an overall framework and, let's face it, a crowd pleaser (aren't we all Romantics at heart?). However, if we're going to -- as we should -- embrace these spectacular creations as "art," then the accompanying art criticism should be held to similar standards as those applicable to more traditional artistic mediums and in this respect, the Savage Beauty catalogue marks only the beginning of the "evaluative process" of McQueen's work. Where I would tend to disagree with Cotter is in his suggestion that the artistic nature of the objects in the exhibition is somewhat jeopardised if unaccompanied by art criticism of a certain, shall we say, "quality," which leads me to touch on the far-reaching debate concerning whether art criticism itself defines what is or isn't "art." From a legal perspective, artists are at times required to articulate the intellectual process underlying their creations in order to be afforded certain legal protections or rights (Cariou v. Prince being the latest decision in favor of art criticism in the context of the "fair use" defense to copyright infringement). However, beyond the realm of the law, I leave it up to you to decide which side to take, that of the artist or the art critic, in such a momentous debate.

    Sunday, July 10, 2011

    Tattoo Settlement

    ST. LOUIS. It's always bitter sweet when a case settles. On the one hand, it's a good thing that costly, lengthy and probably hugely draining litigation has been avoided. However, on the other hand, we lawyers are robbed of what could have been a valuable legal precedent. And often it's precisely those cases capable of clarifying a previously unsettled area of law that are settled out of court.

    We had predicted that this was likely to happen in tattoo artist Whitmill's claim against Warner Bros. over the copy of his Tyson tattoo featured in the film The Hangover II. And indeed a few days after the parties met with a mediator as Judge Perry ordered them to, a settlement had been reached. We'll never know what the outcome would have been (at the time I argued that Whitmill had a pretty strong case),  "Judge Perry made it clear in her comments to the lawyers [when she rejected plaintiff injunctive relief] that she was sympathetic to Mr. Whitmill's argument, noting that he had a “strong likelihood of prevailing on the merits for copyright infringement” and that most of the arguments put forward by Warner Brothers were “just silly.”" No comments as to the terms of the settlement of course.

    Monkey Art

    We're all clear that under the U.S. Copyright Code, the author of an original work has exclusive rights over the copyrighted work. But what if the author is not a living person but rather a monkey? The question has arisen not once but twice in the past eighteen months: originally in the context of a video that was entirely filmed by chimpanzees and more recently when a monkey in Indonesia snatched nature photographer David Slater's camera and started taking photographs. Two of those photographs were found to be subject to copyright notices claiming that not the monkey, not Slater but Caters News Agency held the copyright. The only way the agency could claim to have such rights is if there had been an assignment (a legal transfer of rights) of the copyrights by the author of the original work to the agency. But there could not have been any such assignment since no one owns the copyright - neither the monkey nor Slater (who presumably "submitted the photos to the agency"). Why? Because monkeys are not afforded rights under the Copyright Code and because Slater did not take the photos himself. The photos, I would argue, are therefore not protected by copyright.

    Wednesday, June 15, 2011

    If it's too good to be true, it probably is

    FRANCE. Remember that post about the electrician who was gifted 271 works by Picasso for a mere 3-years' worth of services rendered? Last December, French authorities seized the never-before-seen, unsigned and undated collages, sketches and prints pending investigation of their provenance and prosecutors have now charged the 71-year old and his wife with handling stolen goods. Can't say I'm that surprised, are you?

    Saturday, June 11, 2011

    Détente in Anglo-Russian cultural relations leads to an increase in artistic exchanges

    Statue of Yuri Gagarin (a copy of a
    Russian original)
    LONDON/MOSCOW. The serious tensions in political and cultural relations between the UK and Russia (stemming from the UK's insistence that Russia extradite former KGB agent Andrei Lugovo in connection with the murder of dissident Alexander Litvinenko in 2006) have eased leading to a greater exchange of art between the two countries. What started out as a rift in political relations soon spilled over into the cultural sphere as Russia increasingly misidentified the British Council as a political rather than a cultural institution. The Art Newspaper reports that "in late 2007, following the extradition row, the Russian authorities accused the British Council of evading tax and in December the council was ordered to shut its offices in St Petersburg and Ekaterinburg. On 15 January 2008, the head of the St Petersburg office, Stephen Kinnock, was ­detained on alleged traffic ­offences. Later that year court action was taken to pursue tax payments." The tax evasion problems are said to have been resolved now though the normalisation of Anglo-Russian cultural relations is largely due to the lessening extradition pressures exerted by the coalition government compared with those by the former Labour government. The result: a line-up of exhibitions as well as the unveiling on July 14 of a statue of the "cosmonaunt" Yuri Gagarin outside the British Council's headquarters in London. Upcoming exhibitions include:
    • Antony Gormley at the Hermitage (from September).
    • British Council assistance with the Fourth Moscow Biennale of Con­temp­orary Art (22 Sep­tem­ber-30 October).
    • “William Blake and British Visionary Art” exhibition sent by the Tate to the Pushkin Museum of Fine Art (from November).
    • Models by Anish Kapoor at Moscow's Museum of Architecture (from December).
    • Henry Moore exhibition at the Kremlin Museum (February 2012).
    • The Tate's “Pre-Raphaelites: Victorian Avant-Garde” exhibition expected to show at the Pushkin (June 2013).

    Did Warner Bros. spend a quiver in its arrow by removing Tyson tattoo from "The Hangover Part II" DVD?

    The latest development in the Tyson tattoo saga is that defendant Warner Bros. will digitally remove the copyrighted tattoo from the DVD version of  "The Hangover Part II." In legal documents filed Monday the studio said it did "not intend to make any use of the allegedly infringing tattoo after the film ends its run in the theaters because Warner Bros. will digitally alter the film to substitute a different tattoo on Ed Helms’s face." Tattoo artist S. Whitmill may have been denied the injunction he sought to prevent the release of the film in theaters (not surprising given how high the threshold is for a court to exercise its discretion and grant injunctive relief) but the copyright infringement claim is ongoing. Is it me or did the defendant just spend a quiver in its arrow in that litigation by voluntarily removing it from the DVD? And surely the studio doesn't really think that the proposed digital manipulation of the original feature film can remove the need to go to trial? Copyright infringement occurs each and every time a copyrighted work is used without permission of the copyright owner (whose rights over the work are exclusive) meaning the purported infringement cannot be "made right" by not reproducing the tattoo in the DVD.

    For background on the Tyson tattoo copyright litigation, see here.

    Wednesday, June 08, 2011

    The Barnes Foundation stays in Merion... but the Renoirs, Cezannes and Picassos go to Philly

    Barnes Foundation executive director and president Derek Gillman announced today that the Foundation will be investing "more than $300,000 to "revitalize" the 12-acre arboretum on the grounds of the former Barnes Collection home." He also said that the home will continue to house the Foundation's archives, which will be more available to scholars. But the announcement was more noteworthy for what the director did not say: that the art would be staying in Merion. The Renoirs, Cezannes and Picassos will move to Philly and the move is scheduled for July 3.

    Monday, June 06, 2011

    Can you copyright a tattoo? Legally-speaking, it's a legitimate question

    ST. LOUIS. Given the litigious environment in which we live in, I suspect some of you are thinking that the copyright suit over the replica Mike Tyson tattoo in the film "The Hangover: Part II" is the latest in a long-list of frivolous suits that plague the legal system. However, as tattoos consecrate their place as "works of art," it was only a matter of time before tattoo artists attempted to claim and enforce an exclusive copyright over the original tattoo and now derivative works also (copyright protection extends to "derivative works" also).

    To copyright a work, it must constitute an "original" but whether it's painted on a canvas, a wall or human skin is irrelevant. At the time S. Victor Whitmill created the original Tyson tattoo, he registered the copyright over the work and sought a release from Tyson relinquishing any rights he may have had over the tattoo and agreeing that Whitmill was the owner of the copyright. As such, Whitmill therefore had exclusive rights over any "derivative works," the tattoo in the film likely constituting as much. Not only does the design look strikingly similar, it's a direct reference to Tyson himself who appeared in the first film.
    Mike Tyson and Whitmill's
    Maori-inspired tattoo
    The obvious defense for Warner Bros. (which they raised in their response) is to say that the tattoo in the film is "transformative" and its use to make a "parody" constitutes "fair use" ("parody" is widely held as coming within the six permissible uses in the Copyright Act -- a requirement that is often overlooked as attention is focused on the four-factor test in Section 107). The "fair use" defense embodies the balance at law between the copyright owner's rights and the need to not "stifle creativity," parting from the reality that nowadays almost all works of art are inspired by to a greater or lesser extent by existing works. The main obstacle for the defense will be to overcome the hurdle of the first factor: whether the use of the reproduction is "commercial" or "educational." Technically, federal courts are to weigh the four factors equally in determining whether a particular use is "fair" or not but in practice, the first factor is invariably given significantly greater consideration compared to the other three (some commentators have even argued that the first factor is "definitive"). The fact that Warner stood to reap huge profits from the film will likely not bode well with Judge Catherine D. Perry and if the use is held to be copyright infringement and not "fair," Whitmill will be entitled to the profits derived from the infringing use (among other damages). How the court would decide what part of the profits were derived from the infringing use and should therefore be disgorged though is unclear. I guess the simplest way would be to calculate the total time the replica tattoo is on the screen for as a proportion of the total running time of the film and use that percentage when awarding damages. But odds are we'll never know as the case will probably settle before we get to the sentencing stage.

    Sunday, June 05, 2011

    Fighting forgery: Gala-Salvador Dalí Foundation organizes authentication conference (19-21 June)

    The Art Newspaper reports that the Dalí Foundation is hosting a conference on the authentication of works and "fighting forgery through the courts" at Dalí’s summer home and museum a few hours away from Barcelona. Scheduled speakers include Judith Goldman, a member of the Andy Warhol Art Authentication Board, and Veronique Wiesinger, Director of the Fondation Giacometti (the Swiss artist having recently been the object of one of the largest scale forgeries in history). For more information, see here (unfortunately registration is now closed). 

    Tuesday, May 17, 2011

    Met museum and Jan Cowles -- the true owners of the Mark Tansey cow painting -- file their own complaint against Wylde

    Mark Tansey's "The Innocent Eye Test" (1981), the painting
    that continues to spew litigation
    The true owners of the Mark Tansey cow painting sold by Charles Cowles to Robert Wylde through Gagosian Gallery have filed a complaint seeking a declaratory judgment to force Wylde to hand over the painting. The Metropolitan Museum and Jan Cowles (mother of Charles Cowles) each own 31 and 69%, respectively, of the painting. Crucially, the fact that the plaintiffs co-owned the painting was a matter of public record (see the Met's website here).
    Meanwhile, litigation instituted by Wylde against Gagosian Gallery is already pending (see here) and has attracted a lot of attention as people anticipate getting a  closer glimpse at the inner workings of the Gagosian powerhouse.

    UPDATED: Latest on New York's deaccessioning criteria

    NEW YORK. When the "emergency" regulations on deaccessioning finally expired without renewal last October, an ad-hoc committee to the New York State Board of Regents was formed to, as the Maine Antique Digest puts it, "review and make recommendations on the deaccessioning process to the cultural education committee and the full board." By "deaccessioning process" what is meant is both the enactment and enforcement of deaccessioning criteria to be applied on a permanent basis to museums and historical societies under the Board of Regents' chartering (notably excluding the Metropolitan, "which has a legislative charter").

    The proposed criteria, published on March 2 in the State register (p.14 onwards), include deaccessioning to remove an item established to be inauthentic; repatriate or return an item to its rightful owner (may seem obvious but several European museums have had problems in the past precisely because the law did not state this as a criterion for deaccessioning); return an item to a donor due to the institution's inability to satisfy donor restrictions (often a highly subjective inquiry) and deaccessioning to "accomplish refinement of collections."

    What, if anything, does that last criterion accomplish? Arguably nothing since as drafted it is completely open to abuse and will neither ensure possession in the future (donors' big fear) nor guarantee public access to artworks held in "public trust" (i.e., remedying the incomprehensible reality that collections are largely in storage while museums are increasing on the verge of financial collapse and closure). The criterion is quintessentially representative of that deaccessioning "exercise in smoke and mirrors." Just as before, in practise museums would be free to deaccession pretty much as they like and the only real restriction is in the use of the proceeds that can be used "only for the acquisition of collections or the preservation, conservation, or direct care of collections" (not without its own shortcomings and contradictions). Donn Zaretsky is of the view that "museums have succeeded in guiding the process to a place where the rules make them do what they were already doing" except now (and this is important), "that exercise in smoke and mirrors -- will have the force of law."

    UPDATE: a few more (varying) views on the new rules (from The Art Law Blog):
    • Sergio Sarmiento (VLA Associate Director, artist and blogger): "Among the more perplexing of criteria is the requirement that the art 'item has failed to retain its identity.' What the hell does this mean? It was once a painting but it is now a frisbee?"
    • Judith Dobrzynski (arts journalist and blogger): "Not bad."
    • Amy Goldrich (attorney): "[A]lthough the new rules appear to require a more carefully justified decision to deaccession, at least one criterion -- accomplishing refinement of collections - could end up being a virtual 'get out of jail free' card."

    Sunday, May 15, 2011

    Alleged copyright infringement of origami crease patterns by artist Sarah Morris

    Two of the comparisons attached as Exhibit A to the complaint
    Robert J. Lang, arguably the world's most famous origami artist, and several other co-plaintiffs have filed a complaint in federal court against painter and film maker Sarah Morris alleging her "Origami series" (2007) infringes their copyrighted artworks of crease patterns ["the lines of a crease pattern represent the folds needed to create a three-dimensional origami model from a sheet of paper"]. The complaint states that Morris "transferred crease patterns to canvas and applied household gloss paint to the spaces between the lines. Morris has represented in interviews and promotional materials that the paintings in the Origami series are based on "found origami designs" or "traditional" patterns." Twenty-four of the approximately thirty-seven works comprising the series are said to be "strikingly similar" to the copyrighted crease patterns, which are in no way referenced nor attributed to their original authors. Each of the original artworks was either the subject of a valid Certificate of Copyright Registration or of a pending application for registration, though failure to register an original artwork ("original" in a legal sense) does not preclude copyright protection completely -- it goes to the question of the relief a plaintiff can seek. Except in relation to those rights under §106A(a), to be able to claim statutory damages in the alternative to compensatory damages and attorney's fees, the work the subject of the litigation must have been registered no later than the earlier of 3 months from the date of first publication or 1 month after the copyright owner learnt of the infringement, which explains why the relief sought differs depending on the crease pattern.

    The complaint lays out the facts in detail but doesn't state why it is that Sarah Morris' actions allegedly constitute copyright infringement for which the plaintiff is entitled to relief at law. In other words, the complaint doesn't point to the relevant law under which Morris' actions could amount to copyright infringement (most likely because the applicable pleading standard merely requires the plaintiff to put the defendant "on notice" rather than pleading the complaint "with particularity"). However, if you go to Lang's website you will find a brief summary of the main legal argument, this being that the owner of a copyright has exclusive rights under § 106(2) of the Copyright Act (17 U.S.C.) not only over an original work but also in respect of any and all "derivative works" (see § 101 for the statutory definition of "derivative work," though note that case law has added significant substance to such definition). If the court (often a single district court judge on a motion for summary judgment) finds that the "Origami series" paintings are derivative of the copyright-protected crease patterns then defendant's counsel may raise the affirmative defense of "fair use," recently posted about in the context of the Patrick Cariou v. Richard Prince litigation. There's quite a bit of overlap in the facts between Morris and Prince and I would expect the defense to fail in this case, just like it did for Richard Prince... One final thought on the complaint: curiously, it emphasizes throughout how Morris' actions were "wilful." This is interesting since there is no mental requirement to be found liable for copyright infringement (i.e., liability can attach irrespective of whether the infringement was intentional or not). Therefore, I assume the reason for making the allegation is because the court may, and likely would, award a greater amount of damages where the infringement is found to have been wilful.

    Wednesday, May 11, 2011

    Swedish Artists' National Organization (KRO) calls for tax incentives for private investments in art

    STOCKHOLM. The Art Newspaper has reported that Sweden's KRO has called for tax incentives to encourage private investments in art. The organization is banking on the leader of the country's opposition party to back their proposal and push it forward to come into fruition but as Professor Emma Stenström is quoted as saying, above all the proposal opens the debate regarding funding of the arts. The UK recently engaged in a similar debate as the government announced a 30% cut in public funding last October but failed to accompany such cut with much-needed tax reforms to incentivize private donations. The highly anticipated tax incentives eventually did arrive and were announced last month. Perhaps a trend will develop throughout Europe away from the traditional European model of public funding towards the American model premised on private funding, the cornerstone of which are tax incentives.

    Thursday, May 05, 2011

    UPDATE: End of winning streak for Louis Vuitton

    Remember that lawsuit LVMH brought against the Dutch artist Nadia Plesner for using an image of a child holding a Louis Vuitton bag in the painting Darfurnica? A court in The Hague yesterday ruled in favor of the artist stating that her right to freedom of expression outweighed LV's right to protection of property. While it's true that this balancing act between such competing rights underlies copyright law in most (possibly even all) jurisdictions, I'm surprised that the outcome (I haven't had a chance to read the actual judgment handed down by the court) was expressed in such terms. In other words, I would have thought that Plesner had some sort of affirmative defense under EU copyright law akin to the "fair use" defense under US copyright law (which in essence is the embodiment at law of the balancing act discussed above) rather than have to structure her defense along the lines of a "freedom of expression" argument. (This is what I meant when I first posted about the lawsuit).

    Monday, May 02, 2011

    Notes from "A Conversation with Dan Brooks"

    On April 20, the VLA hosted a talk with Dan Brooks ("DB"), attorney to Patrick Cariou in Cariou v. Prince, to discuss the case and the intersection between copyright laws and appropriation art generally. Here are some notes on what was said that evening:
    • Failure to register an artwork such as a photograph does not mean the work is completely void of copyright protection. However, damages would be limited to actual damages - statutory and special damages would not be awarded, nor would disgorgement of profits or reimbursement of attorneys fees (injunctive relief may still be available though).
    • Likewise, the court quickly dismissed Prince's initial argument that Cariou's works comprising the series "Yes, Rasta" were not copyright protected because, by merely documenting facts, they didn't constitute "original" works ("factual" statements and "ideas" are not protected). It was clear that Cariou worked relentlessly to capture the shot he wanted and a lot of thought went into the subject matter, the lighting and the composition of the (original) photos.
    • Interestingly, the court considered the series "Canal Zone" as a whole when determining whether Prince could successfully avail himself of the affirmative defense of "fair use" (following a finding that the defendant has as a matter of law committed copyright infringement). DB did say though that it's likely the works will be considered individually at the sentencing proceeding (yet to take place).
    • One way to think about the "fair use" defense is essentially as the recognition at law that most things are not "new" but rather build on what has come before, whether it be literature, visual arts, music etc.
    • Most of the cases are decided as motions for summary judgment (so by a single district court judge) since there are hardly, if any, genuine disputes of material fact (i.e., those that are outcome-determinative) that need to go to a jury -- most of the evidence is with the plaintiff and the defendant themselves. Only they really know the facts pertinent to the four prongs of the test...
    • ... Ironically this implies that the law puts a not insignificant premium on perjury. And hiring a top lawyer to draft the party's affidavit in light of the weight it carries in these cases.
    • In summarising "fair use" case law to date, DB said the first prong (the purpose and character of the use, including whether the use is of a commercial nature) of the four-prong "fair use" test is still the most important and while the list is not intended to be exhaustive, in practice it is. Crucially too, the use must relate back to one or more of the 6 permitted uses in the lead-in to s.107: criticism, comment, news reporting, teaching, scholarship or research.
    • The third prong regarding "the amount and substantially of the portion used" is measured against the original work, not the second work i.e., it is no defense to point to how much of the allegedly infringing work is original and not appropriated. Rather, the court looks at how substantial what was taken is as a proportion of the original work.
    • The "Blanch" case is the only time an appropriation artist has successfully argued the "fair use" defense.
    • The Cariou v. Prince decision is, as the VLA's Sergio Sarmiento put it, above all a decision in favor of art criticism for it forces appropriation artists to think about and articulate what and why they have created the work the subject of the litigation (probably to the dismay of some artists). US copyright law does not distinguish appropriation artists from among artists generally and it is not enough for a defendant artist to merely argue that he/she is an "appropriation" artist and therefore not guilty of copyright infringement. As Sergio said, that's just a "ploy" -- we're no longer in the 70s!
    Donn Zaretsky of The Art Law blog (whom I had the huge pleasure of meeting at the event) has posted some links to commentary on the case: see here for artist Brian Dupont's views and here for law firm Sullivan and Worcester's analysis.

    Saturday, April 16, 2011

    EVENT: A conversation with Patrick Cariou's attorney

    Volunteer Lawyers for the Arts has invited Patrick Cariou's attorney, Dan Brooks, to speak with Sergio Sarmiento to discuss the case Cariou vs. Prince. If you're interested in copyright infringement and appropriation art and where the law draws the line between the two, the conference is likely to appeal to you. Details here and background here. It's unclear whether Dan Brooks will also discuss the claim against Larry Gagosian and Gagosian Gallery but I hope he does as the liability of intermediaries is another important and fascinating aspect of copyright infringement.

    Monday, April 11, 2011

    Zadkine case in Paris raises question of transferability of droit moral after an artist's death

    Artist Ossip Zadkine's illegitimate son, Nicolas Hasle, continues to be embroiled in litigation to claim moral and economic rights to his late father's estate. The court of appeal of Paris recently ruled that the City of Paris (named the beneficiary of the estate by Valentine Prax, the wife of Zadkine who inherited the estate after the artist's death) had to outline its claim to Zadkine's estate. However, more interesting than the legal confrontation between Hasle and the City Council over the economic rights to the estate (which is basically a question of applicable inheritance law) is the concept and transferability of Zadkine's moral rights.

    Moral rights refer to an author's right to control the work he/she has created. Such rights (a translation from the French term "droit moral"), protect the personal and reputational, rather than the purely monetary, value of a work to its creator. The scope of moral rights is unclear and differs from jurisdiction to jurisdiction, largely as a result of divergent cultural conceptions of authorship and ownership. In the US, moral rights are protected under various statutory instruments including the Visual Artists Rights Act of 1990 ("VARA"). VARA was the first federal copyright legislation to grant protection to moral rights but certain requirements have to met for a work to fall within the ambit of the statute's protection (e.g., it covers the visual arts only and works must have been produced for exhibition and exist in single copies or in limited editions of 200 or fewer, signed and numbered by the artist). In Europe and elsewhere, moral rights are more broadly protected by ordinary copyright law.

    Under VARA, moral rights automatically vest in the author of a protected work but such rights are not transferable and terminate with the death of the artist. In stark contrast, under French law, moral rights are perpetual and they pass to the author's heirs or executor on the author's death although they may not otherwise be transferred or sold by either the author himself during his lifetime or by his heirs. Since moral rights include the right of attribution, this means that in practise the heirs of an artist can to some extent control the market for the late artist even though they may lack the technical qualifications to determine the provenance of works attributed to such artist. In Hasle's case, it's unclear whether he's even been exposed to the works of Ossip Zadkine. Posthumous moral rights raise many issues and it'll be interesting to see how the court in Paris deals with such rights in the context of the particular facts of this case (not just because Hasle is Zadkine's illegitimate child (I think it's highly unlikely that French law distinguishes between illegitimate and legitimate children) but because it's unclear whether Valentine Prax could lawfully have transferred the moral rights passed to her (I understand that under French law, while liberal, moral rights do terminate with the author's heirs)).

    Saturday, April 09, 2011

    "Armenian restitution claims on the rise"

    Most restitution claims relating to wartime looting are in connection with the World Wars or the Holocaust but The Art Newspaper has reported that, according to Loyola Law School, legal claims of looting during the Armenian "massacres" (which many would characterize as "genocide") are on the rise. Not surprisingly, the claims are said to be following the approach adopted in Holocaust restitution claims. The case of the Armenian Apostolic Church against the Getty Museum in Los Angeles is thus far the most notable but it may only be the "tip of the iceberg." The Church has sued the museum for the return of seven pages from a medieval Armenian Bible "almost a century ago" but the museum argues that it bought them legally. Even if the case does settle out of court, it's predicted to open the door to more cases of this kind. Two big obstacles to all restitution claims are whether the end buyer is a bona fide purchaser for value without notice (usually protected at law) and the statute of limitations (the key question being from which date should the statutory period start to run in these cases).

    Monday, March 28, 2011

    UK to incentivise charitable donations the American way

    LONDON. When UK public funding for the arts was cut by 30% last October, the question on everyone's mind was whether collectors would be able to make up the shortfall by increasing private donations such that the funding of cultural institutions would increasingly resemble that in the US. However, as this blog and many commentators pointed out, for this change in the funding structure to happen, the cut in public funding would have to be accompanied by the necessary tax incentives to induce charitable giving. The budget announced this week "unveiled several measures aimed at creating an incentive for would-be philanthropists to give more to culture" (more on the much-welcomed tax breaks from the FT.com).

    As well as cutting inheritance tax by 10% for those who leave 10% of their estate to charity, the statement also "contained a long-called-for reform of Gift Aid." Gift Aid can now be claimed on small donations up to a total of £5,000 a year, per charity and much of the red tape surrounding Gift Aid has now disappeared (the government has created an online system as an alternative to filling out forms), cutting overhead costs for small organisations significantly.

    Tuesday, March 22, 2011

    "Deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the photographs"

     Left, a photo of a Rastafarian from Patrick Cariou's "Yes, Rasta"
    and, right, a painting from Richard Prince's Canal Zone series
    A US District judge has granted photographer Patrick Cariou's motion for summary judgment on the issue of copyright infringement by defendants Richard Prince, Larry Gagosian, Gagosian Gallery and Rizzoli books. Prince had admitted "to using at least 41 photographs from Yes, Rasta" but pleaded, unsuccessfully, "fair use." The doctrine of "fair use" is one of the more important limitations on copyright(developed through case law over the years and codified in § 107 of Title 17, U.S. Code). The section lists the various purposes for which a protected work may be reproduced without infringing the owner's copyright in such work. Uses considered "fair" include (the list is non-exhaustive) "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair: (i) the purpose and character of the use (including whether such use is commercial in nature or non-profit), (ii) the nature of the copyrighted work, (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole and (iv) the effect of the use upon the potential market for, or value of, the copyrighted work.

    There is no clear distinction between a use that is fair and one that constitutes copyright infringement but in this case, it's not hard to see why the defense didn't excuse Prince's use of Cariou's photographs. The use did not fall within any one of the purposes in § 107, the reproduction was hardly transformative (Cariou's photographs are easily recognizable in the Canal Zone Series photographs), it was purely commercial ("the less transformative a work, the more important its commerciality becomes") and the Canal Zone series was likely to have a direct impact on the market for the photographs comprising Yes, Rasta.  

    Perhaps more interesting is the claim asserted against Larry Gagosian and his eponymous gallery. Intermediaries, though not using the copyrighted work directly, can nevertheless be found liable by distributing images that infringe copyright. All Gagosian defendants were held to be "vicarious and contributory infringers" after the judge ruled the they had "at the very least the right and ability (and perhaps even responsibility) to ensure Prince obtained licenses." The judge added: "the financial benefit of the infringing use to the Gagosian defendants is self-evident." A tough couple of weeks for Gagosian who just got sued by Robert Wylde for selling him a painting to which the seller did not have clear and unencumbered title (see here). Evidence is quickly mounting that Gagosian should adopt higher standards in the conduct of his gallery business (which we will undoubtedly learn more about in due course as the Wylde litigation proceeds).

    Monday, March 21, 2011

    UPDATE: Robert Wylde v. Gagosian Gallery, Inc.

    "The Innocent Eye Test," by Mark Tansey (1981)

    The FT.com has reported that the Metropolitan Museum's website listed the Mark Tansey painting the subject of the recently filed claim against Gagosian gallery as "Partial and Promised Gift of Jan Cowles and Charles Cowles." And indeed it does -- here is the direct link. Last week, a spokesperson for Gagosian made a statement saying the gallery would "vigorously" defend the action and that Charles Cowles had "represented that he had clear title to the painting."

    But shouldn't the gallery have done due diligence (granted, delicately) at the very least to confirm that its client had title to sell the consigned painting? Had they made even basic inquiries about the provenance of the painting the connection to the Met would have been revealed and a simple search of their website would have revealed the museum's interest in the painting. Surely the gallery doesn't just take representations of title made by prospective clients at face value (even if the seller is Charles Cowles)? The suit (which also comprises a claim over a cancelled sale of a Richard Prince nurse painting) will shed much-needed light on the inner workings of what is widely considered to be the most successful gallery in the world.

    For background on the torts/property/fraud action brought by Robert Wylde against the Gagosian gallery see here.

    Sunday, March 20, 2011

    UK round-up

    • "UK art market loses out to "phenomenal" Chinese." FT.com reports on the European Art Foundation study revealing that the UK has lost its position as the second largest art market to China. According to the study "the UK's share of the global art market fell by 5 percentage points to 22 per cent in the four years to 2010." 
    • The Bolton Crown Court having declared the Amarna Princess a fake Egyptian scultpure created by Susan Greenhalgh and awarded ownership to the Metropolitan Police, it is now set to return Bolton Museum. Bolton councillor Elaine Sherrington says that in deciding to display the fake, they did not wish to "condone criminal activity" or "glamourise crime" but rather wanted to show that "even the most artful of forgers is eventually brought to justice" -- hardly the message most viewers are going to take away with them after they visit the display. How can this not glamourise crime? Displaying the sculpture is a mistake: the appropriate fate of a fake is shredding, incineration or stamping "so that no one will be fooled again."
    • "Any taxation that makes the wealthy feel less rich can have a chilling impact." Overview of recent tax changes in the UK and their potential impact on those who buy art.

    Wednesday, March 16, 2011

    UPDATED: If you don't ask, you definitely don't get

    THE HAGUE. Louis Vuitton has filed its second lawsuit against Dutch artist Nadia Plesner, this time for using an image of the fashion house's Audra bag in her painting Darfurnica and continuing to display an image of the painting on her website. Although the latest suit can be distinguished from the 2008 suit filed in Paris in that Plesner is not currently using the image for merchandise (in 2008, she used the image on t-shirts and posters with 30% of proceeds going to charity), the use of the image still constitutes copyright infringement because Plesner did not obtain permission prior to its use.

    Darfurnica, Nadia Plesner (2010)
    According to New York Magazine, back in 2008, Plesner's failure to respond to the letter sent by Louis Vuitton prompted the company to go to court and seek injunctive relief, not damages (though I suspect that from Plesner's point of view, the latter would have preferable to restrictions on her freedom of expression). At the time, the plaintiff made two valid points: firstly, the need to uphold the rights of fellow artists Marc Jacobs and Takashi Murakami and secondly, the reality (both practical and legal) that if it didn't act to protect intellectual property rights, such rights would be jeopardised in the future. Whether these arguments were at the forefront of their actions is a different matter of course (there's little doubt that LVMH had, and still has, no interest in seeing its handbag portrayed in the context of the Darfur genocide).

    The right to freedom of expression (a constitutionally protected right under the First Amendment of the US Constitution and a fundamental human right under Article 10 of the European Convention on Human Rights), is often mistaken for being an absolute right. Rather, it is a qualified right for not all speech is protected (think defamation, fighting words, obscene speech, fraudulent statements...) and the right in respect of that speech which is protected exists not in a vacuum but in a balancing act with other laws such as privacy, consumer protection and copyright, among others. In other words, Plesner's argument that her right to freedom of speech and expression and/or her charitable purposes should (or in fact do) trump any copyright infringement is inaccurate and misplaced. I wonder if what she meant to say is that there is/should be an exception to copyright infringement for artistic expression (as there is under US copyright laws). On the other hand, had she replied to Vuitton's letter in 2008 and requested permission to use the image in 2010 (probably also having to pay a fee for use of the image), each or both instances of litigation may have been avoided. What's clear is that ignoring the problem (and the law) is not the way to go.

    UPDATE: for those that have suggested that I myself have engaged in copyright infringement by displaying the image, I would like to point out that I e-mailed the artist herself to request permission to display the image prior to publishing this post (something I do before every posting of an image of a work subject to copyright protection). Likewise, I would like to clarify that the references to privacy, consumer or other rights are merely illustrative -- they are not necessarily limiting the freedom of speech in this case. The intention was to show that the right was not absolute and that legal rights generally are in a constant state of balance and do not exist in insolation from each other.