Copyright, copyright, copyright. It’s all copyright. Writing, sculpture, photographic images, paintings, a postage stamp. The Little Mermaid, web aggregators, J.D. Salinger, Mannie Garcia, Shepard Fairey, the Associated Press, Patrick Cariou, Richard Prince, Frank Gaylord, the United States Post Office: all involved in a copyright dispute of some sort. To say that heightened awareness of copyright issues is due in large part to the internet is an understatement. Realistically speaking, original creators are realizing the financial potential of their creations and, unlike before, the nice-guy attitude is relinquished, and rightly so. It is time that a nation founded on property principles revisits the dilapidated state of its property rights, primarily those of intellectual property. It is time that congress and courts restore to property owners their constitutional right to exploit or dispose of their property as they see fit.

This is not to say that all uses or transformations of an original artist’s work should be criminalized or made unlawful, but rather that the courts should look with utmost caution and skepticism at the secondary production and rigorously question the ease with which it was produced. It has become much too facile for artists to wake to a cup of coffee and sit at their desktops, click on Google Images and steal away. If the argument is that the internet has in fact heightened the mass dissemination of images, sounds, and texts, then it logically follows that finding the original author and creator is just as simple. Most websites have contact information for their creators and editors. Why can’t secondary users contact the original creators and ask for permission, license or, simply put, ask for an outright sale of the work?

And why the selective reasoning by artists on the applicability of fair use: the continued insistence that it’s ok to steal from someone else yet no one else better steal from me? Does this self-entitlement to anyone’s cultural goods hinge on the classist and elitist distinction made between fine artist and craftsman, between contemporary artist and technician? Isn’t this the same distinction that many of the artists siding with Shepard Fairey and the U.S. Post office helped to deconstruct: the blurring of craft and high-art? What makes Frank Gaylord (the sculptor and copyright owner of the Korean War Veteran’s Memorial) and Mannie Garcia (the photographer who shot the Obama image for the AP) any less of an artist? Should a “strict scrutiny” style structure be applied to “fair use,” favoring original authors and creators, regardless of their standing on the artist/craftsman scale? It’s time that U.S. courts put an end to the belief by many that it’s ok to make a bountiful living off the work of someone else.

How Will I Laugh Tomorrow?

While museums continue to suffer closings, layoffs and cutbacks, the College Art Association initiates an anti-deaccessioning petition. This position is absurd at best and irresponsible at worst. Donors will continue to gift artworks to museums and public art institutions regardless of deaccessioning. Barring a flop by Obama and the states on tax-deductible donations, the incentives (financial and tax-wise) are and will remain highly lucrative for and beneficial to donors. The financial calamity we have experienced should tell us that if the general “public” is skeptical of funding a nation-wide healthy system, they are most certainly against any further funding of the arts through higher taxes. There are more than enough ethical and legal arguments for allowing museums and public art institutions to deaccession artworks for general and operating support. Among these of course is a constitutional right of a property owner to exploit and dispose of her property as she sees fit. Barring any unbreakable donor intent clauses or other legal restrictions, if the gifted artwork is the sole property of a museum, it stands to reason that it is the museum, as property owner, that has sole discretion of the artwork’s use. The continued idealization of art and of artworks as existing outside a capitalist profit-driven structure and the perverse negation of its commercial status will only further the demise of its production and its reception.

For those keeping tabs on the deaccessioning wars, a couple of notable stories have come out this week. For starters, it looks like New York’s Brodsky Bill–which will create rules for deaccessioning of items in a museum’scollection and regulate the use of funds from disposed items–is on the fast-track to being passed.

Pro-deaccessionists are hard to come by, but this week Guggenheim Director Richard Armstrong weighed in (at the heavyweight category), and basically opined that the deaccessioning self-righteousness of “provincial” art institutions will only hasten their death.

Christopher Knight took offense to our brief analysis of his attack on The Art Law Blog’s Donn Zaretsky, Art in America, and blogging in general. His remarks were made availabe earlier this week, but in case our readers missed them, here are his comments:

lambast, verb (informal) “to thrash or scold severely”

Here’s how I lambasted blogging as a critical apparatus in the post to

which you refer:

“…to my knowledge he’s never made a sustained argument explaining

[his position]. Usually it’s just asserted in a quick comment on a

deaccessioning story in the news, in a snarky reference to a quote from

someone else (including me) or even as a stand-alone non sequitur. Such

is the nature of routine blogging.”

Wow! What a thrashing! Call 911!

Routine blogging is not conducive to extended argument, as I know

because I do blog. As I also know, it’s easy to step outside

routine–if one actually has a sustained argument to make about a major

issue.

However, Knight must agree that given his use of “quick comment,” “snarky reference,” and “stand-alone non sequitur” followed by the conclusory and unanalyzed “such is the nature of blogging,” one cannot help but make the logical conclusion that Knight believes all blogging is genetically impotent. Here is the direct quote from his LA Times story:

Usually it’s just asserted in a quick comment on a deaccessioning story in the news, in a snarky reference to a quote from someone else (including me) or even as a stand-alone non sequitur. Such is the nature of routine blogging.

We agree with Knight that many times blogging can be “snarky,” and used solely for “quick commentary.” In fact, we at Clancco practice the latter many a time. Yet this must be accompanied by a brief explanation. Those of us that practice law are many times ethically (and legally) obligated to abstain from legal commentary or analysis for many reasons. However, given these restrictiosn, this does not keep many of us from indexing and highlighting the important (and incidental) news surrounding visual culture and law.

We would like to make two suggestions to Knight: one, to not take the emotional and easy way out of what could be an enlightning and productive discussion about the art of deaccessioning, especially given the current crisis. And secondly, that if there is a strawman that was created, it was the classic and predictable one of the “lawyer as ambulance-chaser.” We can guarantee Knight one thing: people, including artists, will never need an art critic in a time of personal crisis; we all know who will be called upon.

Hot off the Zaretsky v. Knight boxing match, ignited by Zaretsky’s Art in America article on deaccessioning, comes a new deaccessioning, this time from the Montclair Art Museum in Montclair, N.J.

We’ll cover the Zaretsky v. Knight fight soon, but for now this new deaccessioning by the Montclair Museum serves only to strengthen Donn’s claim that museums will find other creative means to sidestep the strict Association of Art Museum Directors (AAMD) regulations.

From the Wall Street Journal:

On March 23, after a “strategic review of its operations and capitalizations,” the Montclair Art Museum in Montclair, N.J., announced … the sale, or “deaccession,” of 50 works from the museum’s permanent collection, among them a Jackson Pollock drawing valued at $300,000 to $500,000 and several Hudson River School and American Impressionist works with estimates ranging from $25,000 to $300,000, according to a prospectus prepared by Christie’s. The auction house believes the sales will generate between $2.9 million and $4.3 million for the institution, which says it will use the funds for future acquisitions.

James Panero, the WSJ journalist seems to take a similar anti-deaccessionist position as that of Lee Rosenbaum, Tyler Green, Christopher Knight, and countless other anti-deaccessionists, guided in large part by emotive and non-sensical reasons.

To read Christopher Knight’s personal attack on Zaretsky, bloggers, Art in America, and to some extent Zaretsky’s argument in Art in America, click here (note Knight’s lambasting of blogging as a critical apparatus, yet delivered via the same means Knight critiques–a blog). Zaretsky’s on-point counter-attacks can be read on his blog, here (and there are quite a few of them).

Unlike Karen WIlkin’s emotional article in today’s WSJ, Daniel Grant provides Brandeis fans with another clear, concise, and neutral outline of the Rose Art Museum fiasco (two if you count “When Going Gets Tough” on the same page). He brings a fresh take on pro and contra positions to the closing and selling, as well as the legal issues with “donor intent.” He also gives lengthy attention to the selling and buying of art and stocks during this time, as well as the tax consequences that could arise for donors. Lastly, he also covers why Brandeis would be better off by selling via auction rather than private sales. Rose Art Museum lovers looking for irrational and emotional “reasons” need not read this article; you won’t find it.

An example of why Brandeis is doing the right thing:

University of Chicago economist David Galenson…speculated, however, that university trustees may have seen their principal donors tapped out from the last fund-raising campaign and that Brandeis was not in a strong position to borrow funds from banks. “If other options are closed off, it’s not an unreasonable position to say that this is an educational institution in financial trouble and that art is an asset like any other, so why not sell it.”

True. We don’t know what financial disasters await Brandeis, and we certainly are not in the position to cry over sold artwork when, and as others have pointed out in the last week, a university’s mission should be narrowly tailored to academics, professional training, and education. Many will argue that access to art is part of this education, but no one said that a university had to supply what is already present outside a university context.

Additionally, Daniel Grant has another brief article on the dreaded “prissy fatwa,” deaccessioning, as well as news that The National Academy may have more artworks on the chopping block.

Art isn’t a lost cause at Brandeis. The university plans to reopen the Rose Art building as an arts center, focusing on student and faculty exhibitions, with studio space for making art and gallery space for imported shows. “We want to be sure we have art on the campus even if we don’t have art,” said Marty Wyngaarden Krauss, the school’s provost.

Enjoy!

There’s a big brawl brewing all over the blogosphere over Brandeis University’s decision yesterday to hold a fire-sale of all its artworks located in its Rose Art Museum. Read more on this story in our Deaccessioning Blog here, as well as Donn’s take here and Rosenbaum’s take here.

For an update on the latest controversies regarding museum deaccessioning practices, visit our Deaccessioning Blog.

The Chicago Tribune has a story on the consequences (and costs) to the University of Iowa if it does deaccession Pollock’s Mural.

The university presented documents to the Regents on Friday assessing the costs and benefits of selling “Mural.” The biggest potential cost to the university: loss of accreditation.

In what can be seen as an omen of what is still to come, three stories this weekend sum up how the financial crisis will affect the so-called “art world.” From the Seattle Post-Intelligencer:

When Seattle Art Museum Director Mimi Gates announced her retirement in June, she was credited with striking an agreement with Washington Mutual whereby SAM was able to afford its 2007 expansion by sharing real estate with WaMu. What a difference a year makes. If SAM and WaMu are joined at the hip, can SAM flourish as WaMu falters? Museum spokeswoman Nicole Griffin says yes. “Everything is in transition,” she said, “but we feel confident in the provisions of the lease agreement.”

We’ll see about that. In today’s NY Times, Edward Wyatt reports that the Los Angeles Museum of Art (LACMA) has received a $45 million cash gift for a Renzo Piano pavilion and $10 million worth of artworks from Lynda and Stewart Resnick. This is good news, the bad news:

Cultural institutions have been left wondering in recent weeks what will become of some of their largest financing sources as a national economic crisis unfolds. Four prominent financial institutions that were significant contributors to museums and arts programs — Bear Stearns, Merrill Lynch, Lehman Brothers and Washington Mutual — have shut down, been acquired or seized by regulators.

Maybe LACMA can deaccession some of its collection. Speaking of deaccessioning, the Washington Post reported on Friday that:

The Corcoran Gallery of Art plans to sell 10 paintings from its permanent collection at a public auction in December as a first step toward refining the museum’s focus and providing funds for purchasing future works.

More on the Corcoran deaccessioning on Clancco’s Deaccessioning Blog.

UPDATE 8: Oct. 15, 2008. Two good articles on this topic in today’s Art Newspaper. Josh Baer writes:

Speculation in young artists is over, and the smaller dealers will be hurt the most. …The theory: speculation in art (and young art) is over. When several guaranteed Rudolf Stingel works failed to sell at auction last winter, it signalled the end of a certain kind of buying of art. It wasn’t just the sub-prime crisis–it was a signal of something far more important.

One (possible) good thing coming out of this financial mess:

Perhaps a return to the importance of museums, critics and alternative spaces for validation and the introduction of new art.

Lindsay Pollack on the bright side of the financial crisis:

“The crisis is quite good for dealers as it means we are being offered high quality paintings which we can sell by private treaty,” says New York private dealer Nick Maclean. “If the market slides, people are afraid to put things out there into a free market where there’s a fear the money won’t be there to prop it up,” adds New York art advisor Todd Levin. “The last thing people want to do is to watch it flame out in a public fashion.”

On the flip side:

[O]bservers of the art market see reason for worry, suggesting the swollen pool of art buyers is bound to thin as quickly as bankers’ bonuses. “Collecting is an exciting diversion for people who are enlarging their personas,” says William Goetzmann, director of the International Center for Finance at Yale’s School of Management and former director of the Denver Museum of Western Art “But when you have a crisis that forces them to spend more attention and focus on the business problems at hand, it’s a question whether they are going to maintain that level of excitement for works of art.”

UPDATE 7: Oct. 9, 2008. From today’s NY Times, Sales Underwhelm at Art Auctions.

Adding to speculation about how the worldwide economic downturn will affect next month’s big auctions in New York, two sales abroad drew disappointing numbers. On Tuesday an auction of Islamic and Indian art at Christie’s in London sold just 47 percent of its 439 lots, Bloomberg News reported.

UPDATE 6: Oct. 6, 2008. From the BBC:

Asia’s contemporary art market suffered a blow at the weekend as bidders failed to buy several paintings at a major Sotheby’s auction in Hong Kong.

UPDATE 5: Oct. 6, 2008. From today’s Earth Times:

The booming market for Chinese art appears to be the latest victim of the global economic downturn, a Hong Kong news report said Monday. A Sotheby’s auction of 20th-century Chinese art Sunday in Hong Kong saw 71 of the 110 lots go unsold, the South China Morning Post reported.

And this from yesterday’s Boston Globe:

Arts organizations across the state say they’re bracing to hear from more donors… generous and loyal givers squeezed by the economy. To prepare, they’ve been making lists of potential cuts, enacting hiring freezes, and shifting reserve funds so they’re better protected and easier to get at.

“Because so much of the fund-raising everywhere in the last five years has come from the financial world, I think it will color all of your planning,” said Hans Morris, president of Visa Inc. and head of Mass MoCA’s finance committee. “If I had [potential donor] who had been at [collapsed firm] Lehman [Brothers], I wouldn’t call right now.”

UPDATE 4: Oct. 3, 2008. The Guardian’s Jonathan Jones on why the art bubble will burst:

But I can’t help thinking there is a disturbing analogy between the credit culture that has come crashing to a halt and the inflation of reputations in contemporary art. As we enter another London autumn with another wave of the latest geniuses, maybe some controls need to be brought in to prevent a similar failure of credit undermining the art world. …The credit boom in art is far from over. It will go on – until it ends. But current events are proving that everything ends: even capitalism.

And from Reuters, this on the cooling off of the Chinese art market:

The bullish Chinese art market will likely come under increasing strain in the coming months amid the bleak global economic outlook, say dealers and market participants ahead of major seasonal sales in Hong Kong….Sotheby’s shares have dropped 22 percent in the past three months, and 61 percent over the past 12 months.

UPDATE 3: Oct. 2, 2008, From The Art Newspaper:

There are still those who profess to believe that there are markets that can continue to operate in isolation; auctioneers and dealers have been saying for months that buyers from growing economies such as China and Russia can make up for the likely retirement of western buyers. But news of Lehman Brothers’ collapse didn’t only see the Dow Jones fall 500-points: Asian stocks nosedived (the benchmark Shanghai Composite Index closed down 4.5% on 16 September), and on 17 September trading on Russia’s main stock exchange–one of the best performing indexes in recent years–was suspended following sharp falls in share prices prompted by the news from Wall Street.

UPDATE 2: Oct. 1, 2008, From Bloomberg.com:

Lehman Brothers Holdings Inc. owns about 3,500 contemporary artworks that have been displayed in the investment bank’s offices around the world, and the fate of the collection is unclear.

UPDATE 1: According to The Gulf Times, dismal sales at the Lyon and Turnbull auction signal a collapse in the contemporary art market.

To the gathered dealers, there was no longer any scope for optimism. The sale, or lack of sales, was incontrovertible proof that the money-spinning contemporary art market has collapsed into what one shocked expert called: “a bloodbath”. Moss’s picture did later sell for £33,600 – just above its low estimate – after the dealers hit the phones to drum up business. That did little to lift the gloom at the sale by the auctioneers Lyon and Turnbull in central London as even work by popular graffiti artist Banksy struggled.

Another blood-inscribed piece by Doherty, as well as work by Sean Scully, Sam Taylor-Wood and a host of other artists also failed to reach their reserve prices.

The sale’s outcome will send a chill through the art world, despite a headline grabbing auction by Damien Hirst just two weeks ago, which netted the artist £111mn at Sotheby’s.

It’s been a bit slow artlaw wise lately, and we’ve also been keeping busy trying to figure out how to manage and remaneuver our investments. Speaking of investments and shenannigans, another interesting story from The Art Newspaper:

In April, the Denver Art Museum gave a half interest in its Charles Deas painting Long Jakes (The Rocky Mountain Man), 1844, to local billionaire Philip Anschutz. In exchange Mr Anschutz bought a Western American painting by Thomas Eakins, Cowboy Singing, 1892, and conveyed a half share in it to the museum.

Now the unorthodox arrangement has spurred an enquiry by the Association of Art Museum Directors (AAMD) to determine whether the deal meets the organisation’s standards for collection stewardship, deaccessioning and relationships with private collectors. AAMD sets non-binding guidelines for its members, which represent 190 of the most prominent museums in North America.