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.
The long-ago Russian Revolution has been fought anew in the Federal courts in New York. The case is Konowaloff v. Metropololitan Museum of Art, and it involves a lawsuit seeking to recover a Cezanne painting seized in the aftermath of the Russian Revolution. In December, the United States Court of Appeals for the Second Circuit affirmed the dismissal of the case, holding that the act of state doctrine barred plaintiff’s action. The Konowaloff case is interesting because it may be seen as an attempt to extend to Bolshevik-loot claimants the steps that U.S. museums have taken to address art expropriation in Nazi-loot cases. The Konowaloff decision makes clear that plaintiffs seeking recovery of, or compensatory damages for, art seized by decree during the Bolshevik/Soviet regime will not succeed under the act of state doctrine – at least not in New York.
Auction houses typically do not disclose the identity of the seller on their sales contracts. A recent New York trial court decision may drastically change that longstanding practice.
The auction trade is supply-driven. As such, it heavily depends on sellers – and those sellers usually want to remain anonymous. Consignors have various motives for keeping their identity anonymous. They may want to avoid having relatives or creditors know they sold family valuables, or do not want the public knowing what is "none of their business". Dealers may not want the public to know they are selling stock. There may also be unsavory motives at play, though reputable auction houses carefully vet both the seller and the goods.
Art blog and news source Art Van Africa interviewed Robert Darwell, head of Sheppard Mullin’s Transactional Entertainment, Technology and Advertising Practice Group, on the criminal trade of art theft. To read the exclusive interview, visit http://www.artvanafrica.com/robert-darwell-on-art-theft/.
We conclude our series on public art and percent-for-art programs by focusing on a recent case involving the respected American sculptor, Alice Aycock. The artist’s sculpture, Star Sifter, was created in 1998 for the John F. Kennedy Airport, New York City. The recent lawsuit was prompted by the planned removal, and thereby destruction, of the commissioned work of art.