Monday, November 24, 2014

"[M]ore likely, the Supreme Court will eventually choose to take this question on directly to clarify the line between fair use and the derivative work right ..."

"... a line which, for now at least, appears precariously subject to the whims of whichever court is tasked to draw it."

Speaking of appropriation and fair use, Steven Schindler and Katherine Wilson-Milne had a piece in the New York Law Journal last week on the Kienitz decision.

"If a visual artist can appropriate for whatever reason, under the guise that any form of appropriation is, per se, fair use, why can’t a corporation do the same?"

Sergio Muñoz Sarmiento has some more thoughts on appropriation and fair use -- and it's always great when he and Alfred Steiner get into it in the comments.  I think the real value in Sergio's shoe-on-the-other-foot examples is that they point up a problem with the emphasis on "different purpose" in the fair use analysis.  That is, imagine a corporation uses an artist's work in a major ad campaign to sell their widgets.  Couldn't they argue that their use had a completely different purpose (selling widgets) than the artist's ... and thus was transformative ... and thus fair use?

I wonder if they understand it means their collections now belong to the "public trust"

The New York Times:  A New Status Symbol for Billionaires:  Art Museum.

(Related post on a puzzle these museums present here.)

Because it's the coin of the realm?

Or maybe it's just common sense.

BBC arts editor Will Gompertz wonders:  Why is the Georgia O'Keeffe Museum selling her work?

It's a good question, for which the Deaccession Police will give their usual answer (i.e., shut up).

But this sale really is a good example of why it's silly to think of what the AAMD does as anything resembling "ethical" reasoning.  They have no way of grappling with a sale like this, no standpoint from which to evaluate it.  They just ask a simple question:  are you using the sales proceeds to buy more art?  If the answer is yes, there ends the "ethical" inquiry.

Thursday, November 20, 2014

Tell me again about the public trust ($44.4 million edition)

The Georgia O'Keeffe Museum sold one of O'Keeffe's "classic flower paintings" for $44.4 million at Sotheby's this morning.

The painting had of course been Held In The Public Trust but, when reached for comment, a spokesperson for the Deaccession Police said:  Nothing to see here, move along.

I covered the particular absurdity of this example, with an assist from Peter Dean, here.

Thursday, November 13, 2014

"If Artists Need to Know About VARA, So do Judges"

Daniel Grant on a "baffling" decision in the Southern District.

Friday, November 07, 2014

"All eyes on Detroit for bankruptcy ruling" (UPDATED 2X)

1 p.m. today.  Approval "widely expected."

UPDATE:  Approved.

UPDATE 2:  Tons of coverage of the news, including:  Mark Stryker: DIA supporters elated by bankruptcy decision.  Wall Street Journal: Art Was Key to the Deal. Randy Kennedy: "Grand Bargain" Saves the Detroit Institute of Arts. (And more from the Times.)  Jillian Steinhauer at Hyperallergic.  The museum applauds.  Slate's Jordan Weissmann: "So Detroit gets to keep its art collection. Pensioners get to keep a little more of their income. And the museum never has to worry about municipal finances ever again. A nice bargain all around."  Nathan Bomey: "With one sentence -- 'The market value of the art, therefore, is irrelevant in this case' -- Rhodes squashed 16 months of debate."  Kriston Capps: "One way to think about Detroit's art collection: Love for it inspired foundations to help rescue pensions."

Friday, October 31, 2014

What the heck is going on in the Ninth Circuit on the resale royalty case?

I'm the first to admit I'm not a commerce clause expert (dormant or otherwise), but it has always seemed to me that the resale royalty case was pretty simple and straightforward.  That's certainly how it seemed in the recent oral argument on the appeal.  Now, however, it seems the Ninth Circuit has ordered an en banc review, on account of "a potential conflict in circuit precedent on Commerce Clause applicability to state actions."  Nicholas O'Donnell has some thoughts here.