Art Law Report

Anish Kapoor Sculpture Dispute Tests the Legal Utility of Terms Like Plagiarism and Appropriation

Posted by Nicholas O'Donnell on August 21, 2015 at 5:11 AM

A sculpture in China that is remarkably similar to Anish Kapoor’s famous Cloud Gate in Chicago is highlighting how the colloquial use of words like appropriation and plagiarism, while useful and descriptive to distinguishing the creative process, can often confuse the issue when it comes to sorting out the parties’ legal rights. While the opinion here is that Kapoor has a good case for infringement (Cloud Gate-gate?), it is not the idea of plagiarism that would support his claim.

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Topics: appropriation, Donn Zaretsky, Xinjiang, Infringement, Pressure, SuicideGirls, Foreign Sovereign Immunities Act, Freddie Mercury, Rahm Emmanuel, Ma Jun, Chicago Sun Times, Ice Ice Baby, David Bowie, FSIA, Karamay, Copyright, Cloud Gate, Millennium Park, The Art Law Blog, Anish Kapoor, Plagiarism, Fair Use

ABA Journal Opens Voting on “Blog 100”—Here Are My Votes

Posted by Nicholas O'Donnell on July 30, 2015 at 6:34 AM

The ABA Journal has opened voting again on its annual “Blog 100,” a roll of notable legal blogs. I’ve submitted votes for the following blogs (in no particular order), which I have bookmarked and consult regularly. The great thing about blogging, I have found, is the ability it gives the reader (and the blogger) to survey multiple perspectives on a subject. So when resale royalties are under discussion, or fair use, I don’t want to read only articles that I agree with or that take the same approach that I would. I also want to hear something I never would have thought of, and expand the conversation.

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Topics: Donn Zaretsky, Paul Howcroft, ABA Journal, Stropheus, Blogs, Judith Prowda, Art Law & More, London, Peter Bert, Fladgate LLP, Richard Lehun, Constantine Cannon LLP, Irina Tarsis, Blog 100, Azmina Jasani, Pierre Valentin, Silberman and Associates, Dispute Resolution in Germany, [email protected], Boodle Hatfield LLP, Taylor Wessing, Natalia Mikolajczyk, Private Art Investor, The Art Law Blog, Art Law London, Becky Shaw, Tim Maxwell, Center for Art Law, Frankfurt

Detroit and Deaccessioning—the Museum Responds

Posted by Nicholas O'Donnell on May 11, 2015 at 8:24 AM

We mused recently about (and tried to clarify) the possible tension between the Detroit Institute of Arts’ successful scuttling of any plans to consider selling its collection to satisfy the city’s debts in the Detroit Bankruptcy. The purpose of the post was not guileful: it seemed likely that many readers might be confused about how Detroit could propose to sell artwork when so much coverage had been addressed to the idea of not selling artwork. In fact, the two ideas are entirely consistent with the consensus of museum governance ethics, but we thought it was an occasion to prompt discussion about the policy behind those ethical guidelines. After all, apart from New York, the rules of deaccessioning are not actually law, they are enforced essentially through collective opprobrium. To facilate that discussion, I quoted Donn Zaretsky, a prominent critic of the status quo, for readers to consider on the one hand, against the guidelines themselves on the other hand.

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Topics: Donn Zaretsky, Deaccession, Detroit bank, Graham W. J. Beal, Randy Kennedy, Deaccessioning, Van Gogh, Detroit Institute of Arts, DIA, Museums, New York Times, Chagall, Detroit Bankruptcy, Art Law Report

Caveat Emptor: Dismissal is Affirmed of Perelman Lawsuit Against Gagosian Over Potential Resale of Koons Work

Posted by Nicholas O'Donnell on December 8, 2014 at 10:53 AM

The intermediate appeals court in New York affirmed last week the dismissal of Ronald Perelman’s lawsuit against Larry Gagosian (the initial dismissal was earlier this year). Although we did not analyze the underlying dismissal when it happened (Donn Zaretsky wrote a terrific recap at the time, here). The result, while not terrible surprising at this point, does underscore some important points to remember about the parties’ rights and duties in an art transaction.

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Topics: Legislation, Donn Zaretsky, Gagosian Gallery Inc., Appellate Divisision, MacAndrews & Forbes Group LLC, Jeff Koons, opinion of value, Galleries, Ronald Perelman, express warranty, Larry Gagosian, U.C.C. § 2-313

Less Fun Than a Barrel Full of Monkeys (As a Matter of Law): The U.S. Copyright Office and the “Monkey Selfie”

Posted by Nicholas O'Donnell on September 24, 2014 at 7:50 AM

There has much much Internet mirth about the recent publication of the Third Edition of the Compendium of U.S. Copyright Office Practices, more specifically, the Compendium’s statement that “the Office will refuse to register a claim if it determines that a human being did not create the work.”

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Topics: Donn Zaretsky, Third Edition of the Compendium of U.S. Copyright, monkey selfie, Internet, crested black macaque, Lawrence Robbins, David Slater, Copyright, Trending Trademarks, Art Law Report

Corcoran Merger Approved, Cy Prés Ruling Treats Deaccession as Non-Starter in Concluding that Status Quo is Untenable

Posted by Nicholas O'Donnell on August 19, 2014 at 8:05 AM

As reported initially, Judge Robert Okun of the District of Columbia Superior Court allowed yesterday the cy prés petition by the trustees of the Corcoran Gallery and the Corcoran College of Art + Design. The full opinion can be read here. The petition asked to reform the trust of William Corcoran to permit a merger with the National Gallery of Art and George Washington University, a merger that will now proceed. The ruling addresses the financial condition of the Corcoran at length, but what is perhaps most interesting is the court’s acceptance of a central argument made by the Corcoran that selling its artwork to shore up its finances was an unacceptable way to proceed. This adopts the view, espoused most prominently by the American Alliance of Museums (AAM) and the Association of Art Museum Directors (AAMD), that deaccessioning for anything other than the purchase or care of art is anathema. Right or wrong, that acceptance in this opinion should have long lasting effects. Framing the question in this way was a work of skilled lawyering by the Corcoran’s attorneys, and kudos must go as well to the interveners and their counsel, without whom the other side of the story would have had no advocates at the trial. Those interveners have stated that they do not intend to appeal, meaning the case is over. Jayme McLellan, founder of Save the Corcoran, issued a statement after the ruling that “The Corcoran as we know it is gone. We fought the good fight." Incidentally, in response to our earlier reporting of McLellan’s role, I received an e-mail yesterday from Mimi Carter, the Corcoran’s Vice President, Marketing & Communication. Ms. Carter stated “Jayme McLellan was not fired from the Corcoran. She resigned in 2012, as mentioned on the first day of court hearings, citing differences with leadership. While there was a miscommunication with Ms. McLellan because of a lack of internal systems, due to a diminished staff and finances, she was not offered a contract to teach this coming Fall. Statements of retaliation are simply false.”

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Topics: Donn Zaretsky, Middles States Commission on Higher Education, Harry Hopper III, Anne Smith, Deaccession, Kathy Raffa, National Gallery of Art, Chiara Trabucchi, Industrial Economics, Jayme McLellan, William Corcoran, Save the Corcoran, George Washington University, sanctions, Corcoran Merger, University of Maryland, Deaccessioning, Cy Pres, Judge Robert Okun, Sergio Muñoz Sarmiento, District of Columbia Superior Court, AAM Code of Ethics, Corcoran College of Art + Design, Lauren Stack, Alexander Haas, Paul Johnson, Trusts, Art Institute of Chicago, Dr. Steven Knapp, Corcoran Gallery, Museums, New York Times, Sean O’Connor, Caroline Lacey, MSCHE, Dr. Wallach Loh, Deaccessioning Blog, Art Law Report, Mimi Carter, National Public Radio

Not so Fast—Intervention into Corcoran Cy Pres Case Allowed for Current Students and Employees, “Save the Corcoran” Turned Away

Posted by Nicholas O'Donnell on July 21, 2014 at 9:49 AM

The Washington Business Journal‘s Rebecca Cooper tweeted today from the courtroom today that District of Columbia Superior Court Judge Robert Okun has allowed in part the motion to intervene in the Corcoran Gallery cy prés petition. Reports are that current students of the College of Art + Design, as well as current Corcoran employees were allowed to intervene, while intervention was denied to the organization “Save the Corcoran” and past employees and students.

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Topics: Donn Zaretsky, Deaccession, Washington Business Journal, National Gallery of Art, Save the Corcoran, George Washington University, Lee Rosenbaum, Rebecca Cooper, Cy Pres, Judge Robert Okun, District of Columbia Superior Court, Corcoran College of Art + Design, District Attorney General Irvin Nathan, Trusts, Corcoran Gallery, District of Columbia, Museums

Analysis and Views Develop on New York Art Authentication Protection Bill

Posted by Nicholas O'Donnell on June 26, 2014 at 4:34 AM

As we reported back in February, the State Assembly and Senate are considering parallel versions of an amendment to the New York Arts & Cultural Affairs Law that would enhance protections for art authenticators by raising the burden of proof and providing for prevailing-party attorneys’ fees. Our view was, and remains, that the law would be an improvement on the status quo because it would protect the player that often has the least upside in an authentication but who may find herself the target of the disappointed party’s wrath.

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Topics: Donn Zaretsky, Andy Warhol Foundation, Art in America, Daniel Grant, New York State Assembly, authentication, Tracy Zwick, American Rule, Bill No. A09016, Art Law Day, New York Observer, clear and convincing evidence, Wolfgang Beltracchi, Art Law Committee, Chagall Committee, Appraisers Association of America, Keith Haring Foundation, New York Arts and Cultural Affairs Law, New York City Bar Association, authenticator, M. Knoedler & Co., Chagall, Senate Bill No. S06794

A Trust For The Benefit of the Public is Not “the Public Trust”—The Deaccessioning Debate and the Detroit Institute of Arts

Posted by Nicholas O'Donnell on June 4, 2014 at 6:30 AM

Reflecting on the recent argument by the Detroit Institute of Arts that the city of Detroit cannot legally sell, let alone be forced to sell, the artwork in the museum to satisfy creditor, some overlapping terminology creates the possibility of an important confusion. Particularly in the realm of deaccessioning, this distinctions are quite important. Meanwhile, the state of Michigan today approved its part of the “Grand Bargain” to subsidize the bankruptcy to avoid sale or encumbrance of the artwork.

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Topics: Donn Zaretsky, Roberta Smith, Rose Art Museum, Lee Rosenbaum, Columbia University, Deaccessioning, Detroit Institute of Arts, Isabella Stewart Gardner Museum, Association of Art Museum Directors, Michigan, Albright-Knox Gallery, New York Times, Detroit Bankruptcy, AAMD, Edward Hopper, Pennsylvania Academy of Fine Arts, grand bargain, Brandeis University, Barnes Foundation

Last Call: "Selling the Museum's Collection: Is Deaccessioning Ever Appropriate?" on Monday

Posted by Nicholas O'Donnell on October 25, 2013 at 12:22 PM

A last reminder that on Monday, there will be a panel discusion at Columbia Law School entited "Selling the Museum's Collection: Is Deaccessioning Ever Appropriate?" From the event description:

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Topics: Johnson Museum of Art, Donn Zaretsky, Roberta Smith, Deaccession, Pollock-Krasner Foundation, Cornell University, Graham W. J. Beal, Richard Levin, Frank Robinson, Pippa Loengard, the Art Law Report, Events, Selling the Museum's Collection: Is Deaccessioning, Williams College Museum of Art, Nicholas O'Donnell, Rhode Island School of Design, New York Times, Detroit Bankruptcy, Samuel Sachs II, Detroit Institute of Art

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