Recently, the high court of appeals in Paris upheld an art expert’s right to refuse to authenticate a work of art. While this decision took nine years to come to fruition, it validates an art expert’s freedom to make an authenticity determination that he or she sees fit, free from the pressures of legal liability for that decision.
Readers will recall that in 2012 the U.S. District Court struck down the California Resale Royalties Act, holding that the 1970s-era law violated the Commerce Clause of the U.S. Constitution.
On January 23rd, in a rare public appearance, Jasper Johns testified against a New York foundry owner, Brian Ramnarine, who was charged with creating unauthorized sculptures, including a fraudulent Johns “Flag” sculpture which Ramnarine allegedly made from the original mold and attempted to sell for $11 million. Johns testified that the sculpture was not authorized, the signature was forged and the certificate of authenticity was a fake. Ramnarine pled guilty to three counts of wire fraud in Manhattan federal court, admitting that he had tried to sell unauthorized sculptures of Johns and other artists.
In late 2012, we reported on a New York Appellate Division order that sent shockwaves and fear of instability through the auction house world. Late last month, the New York Court Appeals issued its opinion in the case of William J. Jenack Estate Appraisers and Auctioneers, Inc. v. Rabizadeh, overturning the Appellate Division and ruling that an auctioneer need not disclose the actual name of the owner who has consigned the work. The Court ruled that only disclosure of the name of the auctioneer would satisfy New York’s Statute of Frauds. The decision reverses the earlier opinion and re-permits the long-established practice of anonymity with regard to the names of owners of auctioned works.
When public institutions are suffering from financial deficits, one question is usually raised: can they sell art to survive? In the museum world it is generally understood that you are to deaccession art only if the work is duplicative of another work in the collection, or for similar collections-related reasons, and the sale proceeds are used exclusively for collections activities. Therefore, for example, you cannot seek to sell art to obtain sufficient liquidity to meet any financial obligation, or make debt service payments. There is little government regulation on deaccessioning (for example, the NY Board of Regents has the power to provide limitations on deaccessioning on New York museums chartered after 1890). However, private institutions such as the American Alliance of Museums (“AAM”) and the Association of Art Museum Directors (“AAMD”) have adopted for their members certain policy guidelines on deaccessioning. Their members are subject to sanctions such as censure, suspension and/or expulsion in the event they do not follow these guidelines.
This summer, Pacific Standard Time’s world-class exhibits highlight the architecture that gives Southern California its unique reputation for modern but relaxed style. This series of exhibits, a Getty initiative, titled “Modern Architecture in LA,” maps the aspect of Los Angeles architecture that is often overwhelmed by residential structures, instead focusing on infrastructure and urban planning, commercial and civic buildings, and housing experiments, among others. Architecture is an art form, and it is also a distinct practice in and of itself. When considering the relationship between art and architecture, it is interesting to see how these practices are at once similarly and differently protected by the law. The Copyright Act of 1976 and the Berne Convention have all resolved to give architects the protection they deserve. But is this protection enough?
The Supreme Court today handed down a far reaching decision throwing out an attempt by Congress to deny the benefits conferred by federal law on same sex couples legally married under state law holding that the Defense of Marriage Act (“DOMA”), as so applied, constituted a deprivation of the equal liberty of persons protected by the Fifth Amendment. In so doing, and perhaps without realizing it, the Supreme Court was also writing an important copyright case.
In Cariou v. Prince, No. 11-1197-cv (2d Cir. Apr. 25, 2013), an opinion with significant importance for the art world, the U.S. Court of Appeals for the Second Circuit clarified what is required for a defendant’s entitlement to the “fair use” defense to a claim of copyright infringement, holding that the law does not require that a secondary use comment on the original artist or work, or popular culture, but only that the secondary work be “transformative.”
Last post discussed the legal issues surrounding museum loan agreements. This post continues the discussion of museum loans with a look at loans coming into the U.S. from abroad. When exhibition descriptions use the phrase “supported by an indemnity from the Federal Council on the Arts and the Humanities,” or similar language, the organizers have taken advantage of the laws that provide immunity from seizure and indemnification in the context of international loans.
Museum loans have many benefits. Generous lenders serve the public good by making works available for display and exhibition both here and abroad. Lenders should have a passing familiarity with legal issues surrounding museum loan agreements because the agreement is designed to govern all aspects of the loan throughout the specified term. What follows is a brief description of the basic provisions of loan agreements and some issues collectors should consider when lending art to museums.