What To Do When Museums Face Tough Times: The American Folk Art Museum

Disaster has been averted for the American Folk Art Museum. The fate of the fifty-year-old institution has looked bleak since last spring. Word of its dire financial situation spread in early September, when the Board of Trustees contemplated closing permanently and ceding its collection to the Brooklyn Museum and the Smithsonian. To the relief of many, this past Thursday, September 22, the museum announced it would continue operations and its collection would remain intact. Infusions from the trustees and the Ford Foundation will keep the museum afloat and new Chairman Laura Parsons and President Edward V. Blanchard were appointed.

Yet the near demise of the American Folk Art Museum leaves a troubling question lingering—what’s a museum to do when it falls on hard times?

In the wake of the recession’s crushing financial pressures, museums have laid-off staff, shortened exhibit schedules, and halted new acquisitions. Museums have even considered a controversial measure—de-accessioning and selling its artworks to cover overhead costs and debt. Although the art world typically condemns this practice, many have increasingly asked whether the unwritten ban should be relaxed to give museums much needed relief when economic hardships hit. There is a fear that making de-accessioning artworks easier will lead to museums selling pieces as a first rather than final, emergency measure. This raises a regulatory question; what legal guidelines should direct the process? In her 2010 op-ed, ‘The Art of the Deal,’ Judith Dobrzynski suggested that an impartial arbitrator should make the decision whether to de-accession an artwork after reviewing a museum’s proposal and their financial records. For now, no comprehensive law exists in New York that governs the practice.

Thankfully, the trustees and staff of the American Folk Art Museum were spared these difficult choices. But until the economy makes a full recovery, the debate will rage on over where to draw lines between preserving the principles of a cultural institution and preserving the institution itself.

Sources: NYTimes 'With Help From Friends, Folk Art Museum Will Stay Open,' 'The Art of the Deal'

Cariou v Prince: a continuing controversy

In March, this blog reported on the 2nd circuit's ruling on Patrick Cariou's lawsuit against appropriation artist Richard Prince. Batts granted summary judgment in favor of Cariou on the issue of copyright infringement. The court ordered Prince to destroy millions of dollars worth of his own artwork. Prince appealed.

On September 15th, The United States Court of Appeals for the Second Circuit denied Mr. Cariou’s request to dismiss Mr. Prince’s appeal. The NY Times reported that the court indicated questions raised by the case remained “a continuing controversy capable of redress by this court.”

Rachel Corbett at ArtNet spoke with Prince's lawyer, Josh Schiller.

"At the heart of Prince’s appeal, according to Schiller, is Batts’ assertion that an artist must explain the meaning of his or her work in hindsight. She wrote that Prince testified himself that he doesn’t 'really have a message' and has 'no interest in the original meaning of the photographs he uses.'"

While it seems fair to say that fair use should not be determined by an artist's post-commentary, this doesn't answer all of Batts' criticisms. Specifically, Batts suggested that Prince's works failed to comment on Cariou's works themselves, as is required under the first prong of the fair use test, the 'the purpose and character of the use'. Indeed - the exhibit may provide interesting social commentary, but the fair use calls for commentary upon the original work itself. According to Randy Kennedy at the New York Times, "That reading of the law was viewed as unusual by many copyright experts, who warned that it could have a chilling effect on art that relies on appropriation, a controversial but well-entrenched postmodern artistic strategy."

Perhaps Prince really is making a commentary on Cariou's photographs themselves. Joy Garnett at ArtNet gave an interesting review of the case from an artist's perspective (and suggested IP lawyers lack necessary understanding). Garnett sees appropriation art as commenting on photography as a mass-producible artform. Maybe Prince's works are truly one of a kind, whereas Cariou's are capable of reproduction and mass production, but this idea shouldn't be confused with the actual elements of fair use or of originality under copyright law.

Presumably these issues will be further explored on appeal, and hopefully important steps will be taken toward clarifying fair use.

Europe Extends Copyright

On September 12, the European Commission passed a Directive extending the copyright on music recordings from 50 years to 70 years. Each member state must implement the Directive through its own legislative measures.

Eight EU member states voted against the measure. According to the New York Times, Belgium dissented: “A term extension is not an appropriate measure to improve the situation of the performing artists. It seems that the measure will mainly benefit record producers and not performing artists, will only have a very limited effect for most of the performing artists [and] will have a negative impact on the accessibility of cultural material.” The new law will be more in line with the U.S. term of protection, the details of which are available on Cornell's website.

The legislation will affect a slew of songs from the 1960s, which were about to lose copyright protection. Yes, that means that the Beatles will not be entering the public domain anytime soon. Dame Shirley Bassey said, "Unlike diamonds, copyright is not forever, but I'm happy it will last a little bit longer." The guardian reports that the music industry is pleased with the outcome, although it has been lobbying for several years to extend the extension to a 95 year term. However, not everyone is happy to see an extension. Pete Waterman told the Independent, "Most musicians, session musicians, are lucky if they get £20 a week out of their copyright." Shane Richmond, Head of Technology at the Telegraph, asks, "Will copyright extensions ever end?" Richmond views these extensions negatively and details research indicating that royalties are rarely directed to artists themselves. One statistic shows that 80% of artists will be only £50 better off because of the new law.

What does this mean for the art law field? It demonstrates a general trend toward extension of copyright protections. As further harmonization occurs, the length of copyright protection will likely increase rather than decrease. These developments largely ignore real concerns that smaller artists have about making money off their own work and the concerns that all artists and non-artists alike have about fair use.

Counterfeit Logos and Fine Art

The law continues to grapple with counterfeit fashion. What Intellectual Property rights or other legal rights can fashion houses wield against those who appropriate their logos and designs? Last week, major fashion house Chanel filed a lawsuit for cyberpiracy and trademark infringement against 399 internet retailers that were selling counterfeit items under its name.

However, many cases are not so straightforward. Photographer Luis Gispert has explored an interesting subculture in which individuals appropriate trademarks of high-end fashion designers to creatively customize their own belongings. Gispert went around the United States, photographing individuals who had taken counterfeit designer materials and had used them to revamp automobile interiors, clothes, and house wares, amongst other items. This month, Canal Street and dodgy websites aren't be the only places where New Yorkers can go get their counterfeit fixes. An exhibit of Gispert's works opened at the Mary Boone Gallery on September 8, 2011 and will run through October 22, 2011. A press release from the gallery describes Gispert's subjects as "end products of a cultural history."

The artist told the Daily Beast his subjects do appropriate materials and actual logos, but they do not try to mimic the original fashions. "The knockoff fashion culture brings the inaccessibility of major luxury brands to the masses, and the results are often nothing like what the original designers intended," argues one writer at the Huffington Post.

According to NY Magazine, Gispert never discussed the legality of the creations with his subjects. Their creations were "very involved and personal. The level of obsessiveness that goes into making this stuff — especially the cars — is really extreme, I would argue at the same level as that of an artist." But these cultural symbols are also trademarks, and even artistic expression must be balanced with the rights of trademark owners.

The New Barnes to Open on May 19, 2012

The Barnes Foundation is expecting to open its new doors in the new museum on May 19, 2011 regardless of the fact that there is yet another lawsuit by the Friends of the Barnes Foundation pending. As always, the Friends are demanding that the masterpieces should not be moved from their original suburban home to Philadelphia.

To recall, the Barnes Foundation was established by an eccentric collector Albert Barnes in Lower Merion, PA to snub the Philadelphia snobs. Disregarding Barnes' last will and testament, the Foundation trustees began constructing a facility in downtown Philadelphia to relocate the magnificent Barnes collection of French Impressionist paintings et al., in 2009, legitimized by Judge Ott's 2004 decision.

The old Barnes museum galleries have been closed for a few months already. Notably, the Foundation was strapped for cash until it decided to move and now, it is using a reported sum of $200 million in public and private money to pay for the new facility and establish an endowment. The foundation expects to offer free admission during the inaugural year, made possible by donations from the other friends, PNC Bank and Comcast.

Who will Sketch the Plaintiff? Courtroom Sketch Artist's Resale Rights Violated

H. Jay Spiegel of H. Jay Spiegel & Associates, P.C. of Mt. Vernon, VA is representing Patricia ("Pat") Lopez, a long-time freelance courtroom sketch artist in a suit against the Associated Press (AP) and stock photo agency Getty Images for reselling her work in violation of her copyright.

According to Spiegel, Lopez earns $300 to $500 for her sketches but retains the copyright. Allegedly the AP and Getty violated the copyright by reselling her work to the public, at prices up to $12,000 for a one-month license, according to the complaint.

Apparently AP and Getty are entitled to use of the sketches in any ongoing news coverage of the cases that Lopez has sketched, but that right does not extend to selling those images commercially.

The papers were initially filed in April 2011; last month Lopez's council filed court papers indicating settlement discussions are ongoing. The suit seeks unspecified monetary damages and an injunction barring the companies from offering her sketches for resale.

Plaintiff profile: Lopez made sketches at the Oklahoma City bombing trial as well as trials of Willie Clark, and Maj. Nadal Malik Hasan. Her artwork has been such media outlets as NBC, ABC, CBS, CNN and Associated Press. Cameras are not allowed in U.S. federal courts, thus courtroom artists document historic courtroom moments for the public and the posterity. In 2008, Lopez donated her portfolio of Oklahoma City bombing trial sketches to the Oklahoma City National Memorial & Museum. 

Sources: Forbes and ArtDaily.

Are Artists Avoiding Taxes Everywhere?

Following a 9-year tax investigation, this August, the Norwegian artist, Odd Nerdrum, was sentenced to two years in prison without bail because he was found him guilty for tax evasion. According to the ArtDaily, critics claim that Nerdrum’s sentence was "surprisingly more severe than the punishment recently imposed in a similar case in China concerning the artist Ai Weiwei," who, after months of detention, was given a fine and released on house arrest.

Nerdrum, a 67-year old artist famous for his oil paintings is an Icelandic citizen who resides in Norway. He was accused of failing to pay the full amount of taxes on $2.6 million (1.8 million euros) of taxable income from sales between 1998-2002.  Nerdrum has plead not guilty to charges of aggravated fiscal fraud and his attorney Tor Erling Staff will file an appeal.

Nerdrum stated that he had already paid the taxes years ago, “ I paid 50% of the $2.5 million in 1998. And then I paid another 50% on that sum in 2002, adding up to 100% of the $2.5 million. Hasn’t the goal been reached by the Norwegian government yet?”

The prosecution believes that Nerdrum hid taxable income in a safety deposit box to avoid paying taxes. Nerdrum's explanation for keeping money in a safety deposit box is a contractual obligation to pay collectors for paintings he created in the 80s using experimental, a.k.a. perishable medium. As evidence, he submitted a contract with a U.S gallery describing the money as a safety fund for more than 30 paintings that began to melt when exposed to heat. Apparently, Nerdrum repainted the each of these disintegrating compositions as well as offered to exchange them but collectors wished to be compensated with money. The fund was a safety measure against future claims.

Nerdrum proclaimed that the charges were “rubbish” and that the protracted tax investigation and trial were intended to drive him toward suicide. In Norway, convicted prisoners are not permitted to continue their business activities while held in custody. Unless the decision against Nerdrum is reversed or the law is not applied, the artist may be forced not to paint for two years.

For more information on the case, read Views and News from Norway.

Body Painting in NY

Body painter Andy Golub has been attracting crowds in Times Square by using topless women as canvases. In New York, women are allowed to be topless in public. However, on July 30, Golub was arrested for public lewdness charges when two of his models were completely naked on the street. According to New York Penal Law, a person is guilty of public lewdness when he intentionally exposes the private or intimate parts of his body in a lewd manner. It is a class B misdemeanor. He is also guilty if "he promotes the exposure of a person when knowingly he conducts, maintains, owns, manages, operates or furnishes any public premise or place where a person in a public place appears in such a manner that the private or intimate parts of his body are unclothed or exposed.

Golub has been quoted as saying that "What I do is an extension of what I do in the studio...  Sharing it with the public is a great experience." In August, Golub avoided an arrest by putting his model in a g-string. Public's reaction to the public performance revealed that the viewers were less prudish than the police and underscored the black letter law that the enforcement officers are unable to tell what is offensive in a sexual way and what is art -- that decision is better left to the fact finder.

VLA fils an amicus brief in support of Kelley

Six months ago, on February 15, 2011, the United States Court of Appeals for the Seventh Circuit held that artist Chapman Kelley's sculpture, Wildflower Works, was "neither 'authored' nor 'fixed' in the senses required for copyright."  Kelley v. Chi. Park Dist., 635 F.3d 290, 304 (7th Cir. 2011). It reasoned that "...gardens are planted and cultivated, not authored. A garden's constituent elements are alive and inherently changeable, not fixed."

In July, Kelley, represented by Kirkland & Ellis LLP, filed a certiorari petition with the Supreme Court of the United States requesting review of the Seventh Circuit's decision which also denied Kelley's sculpture in Grant Park protection under the Visual Artists Rights Act of 1990.

New-York based non-profit, Volunteer Lawyers for the Arts (VLA) disagreed with the decision concerning authorship and fixation of a work of art made from living materials because it automatically disqualified from copyright protection the use of living materials in art.  On August 24, 2011, VLA, together with artists Molly Dilworth (a VLA artist in residence), Blane De St. Croix, and Thomas Lawson as well as in collaboration with the Arts & Business Council of Greater Boston, Inc., filed an amicus brief supporting Kelley's petition.

In a newsletter, VLA explained that "Volunteer Lawyers for the Arts believes that the incorrect decision of the Seventh Circuit, if allowed to stand, will challenge and harm the ability to advise and educate artists in the area of copyright law, especially with regard to works of art incorporating living materials and other innovative materials. Whether a given artwork is granted copyright protection significantly impacts an individual artist's livelihood and ability to contribute to the creative economy as a whole."

A copy of the brief is available here.

Weisberg Appointed to the Commission for the Preservation of America's Heritage Abroad

Richard H. Weisberg, Walter Floersheimer Professor of Constitutional Law at Cardozo School of Law was appointed by President Barack Obama to serve on the Commission for the Preservation of America's Heritage Abroad. In this position, Professor Weisberg accesses the state of culturally important sites and the means to protect and preserve such historic buildings, collections and monuments in Europe that are significant to the heritage and culture of U.S. citizens.

Professor Weisberg was awarded the Legion of Honor, the highest honor bestowed by the French government, for his work with the U.S. State Department and French government, to provide restitution from France to victims of the wartime Vichy regime. As the founding and current president of the Law & Humanities Institute, and the founding and general editor of the Law and Literature periodical, Professor Weisberg brings valuable academic and legal expertise to the Commission.

The Commission works with government agencies and private entities in more than twenty countries. These nations include Lithuania, Ukraine, Belarus, Italy, and Poland.

Prof. Weisberg had been quoted as saying "An opportunity to serve in any governmental capacity is a great privilege and I’m especially pleased to serve on this commission. Its work was designed to respect and extend the memory of Holocaust victims now in the U.S. and other interested citizens by preserving American patrimony abroad from misuse, desecration or expropriation."

One of the most controversial topics is preservation of burial sites. There is a palpable tension between the desire to preserve old cemeteries for their important sociocultural meaning and the modern  economic wishes for new commercial and residential development of prime locations. For example, in Lithuania, there has been a decade-long dispute over an area occupied by the Jewish cemetery established in 1487 in Vilnius where about 50,000 people are buried. More recently, in Israel, the proposed location for the Museum of Tolerance in Jerusalem turned out to be an older burial ground with Muslim graves.

The Commission is settled with a hard task of finding creative solutions to assist those wishing to preserve cultural heritage in their struggle with those focused on the present.

For more information, please read YU News.