Monday, January 31, 2011

As the title suggests, this is a collection of ten biographical profiles (formerly published in TheNew Yorker over the last ten years) of some of the most significant (and interesting/controversial) contemporary artists including Damien Hirst, Cindy Sherman, Jasper Johns and Maurizio Cattelan. Notwithstanding the uncontrollable, inexplicable feelings of like/ dislike one has when viewing an artwork, the intellectual process underlying the artwork is often lost on a "naked" viewing. Although some have argued that this loss is irrelevant and what matters is the viewer's own, personal experience of the art, I myself do value and in fact attempt to acquire a deeper understanding of an artist's intellectual and creative processes. Biography is one way to gain such an insight because the way artists live is an integral part of who they are and how they create art. Tompkins' intimate portraits of the chosen artists are not only memorable and intriguing but also poignant and meaningful in the sense that each incident or fact recounted masterfully adds to one's understanding of the artist and his work - nothing is superficial or superfluous. An incredibly rich resource for anyone interested in contemporary art.

NEW YORK. Titian may have been the star at the Sotheby's Old Masters sale but he wasn't alone: 16 auction records were set at the sale, which "totaled $90.6 million, just shy of its $91.8 million high estimate." Three key reasons accounting for the Titian beating the previous record for the artist ($13.6m versus the new record of $16.9m) are the exceedingly few Titians remaining in private hands, the clear provenance of the painting ("A Sacra Conversazione" has only exchanged hands 6 times) and the fact that it's a "multi-figured" painting (generally, price increases with the number of figures depicted). ﻿﻿

A Sacra Conversazione, Tiziano Vecelli (circa 1560)

Donn Zaretsky points us in the direction of a fascinating article in the FT.com about the "prolific and amazingly persistent" forger Mark Landis. Unbelievably, his motivations were not financial - Landis donated the forged works as a tribute to his parents. Equally surprising is that no criminal liability arises from his actions, however "annoying and disruptive," as no loss was suffered by any of the victims (loss is a required element under the criminal fraud statute).

Saturday, January 29, 2011

SAN FRANCISCO. The gallery that received a cease-and-desist letter from Koons' attorney to refrain from selling balloon dog bookends (see here) has filed a petition in federal court for a declaratory judgment which, reports The New York Times, states that the dog cannot be copyrighted according to Courthouse News Service. Here is a lively exert from the complaint: "as virtually any clown can attest, no one owns the idea of making a balloon dog, and the shape created by twisting a balloon into a dog-like form is part of the public domain."

﻿WASHINGTON DC. More on how the changes to the US estate tax are likely to have an adverse effect on bequests. There's no denying that the fiscal advantages to donors are a significant factor motivating gifts to institutions so the combined effect of a lower rate (35%) and a higher exemption ($5m per person) will almost inevitably put off some donors. However, if the regime is amended in two years time, it could mean that those donors' bequests are merely delayed rather than forfeited.

NEW YORK. Donald Judd former fabricator, Ballantine, is planning two conferences in New York and Berlin this year to discuss the "misconceptions connected to the artist's fabrication and conservation techniques" and his "extreme version of delegated fabrication." The discussions could raise some interesting questions on the relationship between fixing damaged art, authenticity and value ("there are unusually authentic ways outside the way of fixing most art that doesn’t diminish the value in Judd”). ﻿

La Lecture, Pablo Picasso (1932)

LONDON. Last time Marie-Thérèse Walter made an appearance at auction, she sold for $106.5 million, setting a world record auction price for a work of art. Now she's set to return to auction for the first time since last May but this time in London not New York and at Sotheby's rather than Christie's. The estimate for La Lecture is £12-18m which seems somewhat conservative in light of her past performance (the estimate then for Nude, Green Leaves and Bust had been $80m though one of the main reasons it sold so well was specific to that particular painting - the work had not been in the market since 1951 and during that time, it was only publicly exhibited once in 1961). Aside from depicting the same protagonist, the two works are both dated 1932 and are characterized by equally intense, vibrant colors (albeit in distinct palettes). However, the upcoming painting is much smaller than its predecessor, size clearly being an important factor affecting an artwork's value. We'll see in a couple of weeks just how fond the market is of Marie.

Friday, January 21, 2011

The letter from AA Bronson's lawyers to the NPG had given the institution until January 17 to remove the Canadian artist's piece (Felix, June 5, 1994) from the controversial exhibition "Hide/Seek" unless it reinstalled David Wojnarowicz' video "Fire in my Belly." Well, on Monday a spokesperson for the NPG announced that it will not comply with Bronson's request. Bronson is said to have responded to the Director of the NPG, Martin E. Sullivan, with the following e-mail: "My lawyer suggests that, according to my moral rights under copyright law in both Canada and the USA, I have the right to withdraw my work from "Hide/Seek... Please remove my work from the exhibition immediately." So the e-mail said pretty much the same as the letter. It may be time to come up with a new line of attack.

That case was more controversial because the government sought a valuation from a rival auction house (eventually estimated at £20 million) rather than taking the price paid at auction (£3.2 million) as that which needed to be matched by a third party to keep the ewer in Britain. Unsurprisingly, no buyer could match the £20 million price tag and, following the export of the ewer to Berlin, it was unclear what precedent had been set by the government in going against what had been past practice to date to use the price paid at auction.

The fact that the "Rubens" was estimated at £6 million but only sold for £1 million as a result of its uncertain provenance gave the government an ideal opportunity to require an "independent" (if there is even such a thing) valuation and use that figure instead of the £1 million actually paid. That the government chose not to do so is significant in that it suggests that the export of the Fatimid ewer may have been exceptional. However, only time will tell the extent to which the case of the Fatimid ewer changed the way artworks are exported from Britain. On the other hand, there's always the possibility that the government decides to seek independent valuations arbitrarily, on a case-by-case basis, depending on its interest interest in keeping the artwork in Britain and the price paid for it...

Thursday, January 20, 2011

In the midst of the heated deaccessioning debates on both sides of the Atlantic, I've long held that deaccessioning (i.e. selling or removing a work of art from a museum's collection) should be regulated as opposed to prohibited outright. The fear among the "anti-deaccessioning police" that without a blanket prohibition against deaccessioning museums will sell-off vast amounts of their collections is simply irrational. There is absolutely no reason why oversight, transparency and certain, limited restrictions cannot ensure that deaccessioning is carried out ethically and with the best interests of the collection, the museum and the public in mind. A strong argument in favor of controlled deaccessioning is the fact that a substantial part of a museum's collection is often in storage whereas newer museums struggle to build their collections for want of museum-quality pieces (and funds). Not to mention arguments based on the need to update and refine collections and the potential benefits derived from including deaccessioning as part of the efficient and financially-sound management of a museum.

The BBC has reported on storage statistics for London museums including the British Museum, the Tate (Britain and Modern) and the Natural History Museum likely to shock even the most obstinate anti-deaccessioning vigilante. The statistics express the amount of art in storage as a percentage of a museum's collection as well as the annual cost such art represents.Most museums in the UK capital were found to have over 90% of their collections in storage.Is this really what the public (for whose benefit museums hold art in trust) want? This absurdly polarized debate is all about taking sides and in the midst of the madness, the basic tenet that the mission of all museums should be "more, better engagement of more people with more art" seems to have been lost.

Tuesday, January 18, 2011

﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿PARIS. As previously posted, A&F Markets was poised to create an art "stock exchange" (the second in the world) and ARTINFO reports the initiative has now been launched. ARTINFO states that the exchange "will treat artworks as investment vehicles" but this is technically incorrect since investors will own shares in the artworks themselves rather than in investments vehicles incorporated solely for the purpose of holding the art assets. It had been reported that the exchange would initially offer shares in six artworks. However, at least for now, shares in only two artworks are available - LeWitt's "Irregular Form" and Vezzoli's "The Premiere of a Play That Will Never Run." Interestingly, instead of offering the same number of shares in each piece at a different rate (the Vezzoli is valued at $32,000 more than the LeWitt), the exchange is offering shares in both works at €10 ($13) per share.

﻿﻿﻿﻿﻿﻿﻿

Sol LeWitt, "Irregular Form" (1998)

﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿No doubt certain circles in the art world are skirming over this commoditization of art. Founder Pierre Naquin defended the venture by pointing out how floating these works will actually bring them closer to the public because "participating galleries must commit to show their stock-market works by appointment, as well as to loaning them for retrospectives or other exhibitions, since these are expected to increase the value of the shares." True... but only until a work gets bought which in practice will likely be when an investor acquires 80% of the shares and squeezes out the minority shareholder(s).

The price tags of the works are by no means at the high-end of the market ($142,000 and $174,000) and I doubt their value will increase dramatically and quickly enough to prevent a determined investor from being able to buy a work (though does the fact that Art Exchange "retains the exclusive right to sell any of the works within its system" mean they can block a sale? Surely not). I'm debating if I should buy some shares myself to experience the exchange first-hand (I'll keep my readers guessing as to whether or not I think the shares are a good investment).

Monday, January 17, 2011

Much has been written about the Smithsonian's decision to remove David Wojnarowicz' video "Fire in my Belly" from the exhibition "Hide/Seek" as it succumbed to pressure from two certain Republican lawmakers and the Catholic League (ironically drawing far greater attention to the piece as galleries and museums around the world played the video in protest and countless websites provided free access to the video). In the aftermath of this unfortunate act of censorship, many protested but few responded in any meaningful way. Among those few who did were the Warhol Foundation (pulling its funding of the NPG) and the Canadian artist AA Bronson (who demanded that his artwork displayed in the exhibition be removed). Bronson's lawyers argued that failing to remove the artwork would constitute a violation of his "moral rights" but, as I previously reported, certain commentators questioned the legal authority underlying such argument.

The Toronto Globe and Mail has covered the story and states that: "it appears Mr. Bronson is trying to test the so-called “moral right” associated with copyright by asserting that showing Felix, June 5, 1994 in Washington makes him an unwilling “accessory to censorship” and that his work has been “altered” by being presented in a compromised context." A problematic implication of this theory is that artists would be able to control the contents of exhibitions, thus inhibiting debate and the free exchange of ideas and beliefs. From a legal perspective, Donn Zaretsky points to a past post of his discussing a case (Costco v. Omega) that may well be relevant precedent. So maybe Bronson's claim is not so far fetched after all. Either way, he's given the NPG until January 17 to remove Felix, June 5, 1994 unless of course "Fire in my Belly" is reinstalled as part of "Hide/Seek."

Friday, January 14, 2011

The exhibitor list for the 2011 Armory Show, New York's largest art fair, has been released and as Lindsay Pollock points out, some of the "heavy hitters" in the New York market that participated in the 2010 fair will not be taking part next March. Names include David Zwirner and PACE and they join the 72 other dealers who will not be returning to the fair. Also skipping the fair are a couple of LES dealers such as Lisa Cooley, James Fuentes and Laurel Gitlen which is interesting in light of The Art Newspaper's recent article on the appeal and success of dealers based in the Lower East Side. The total number of exhibitors is only down from 289 to 274 so absentees have largely been replaced, the new faces composed of a mix of European and Latin American dealers. Perhaps more noteworthy than who is attending Armory is where those that are not expected have flocked to: the Art Dealers Association of America Art Show, a fierce competitor of Armory and taking place on the same dates. Big names showing at the ADAA show include: Blum & Poe, L&M Arts and Marian Goodman Gallery.

A previous post discussed the European Commission's recent controversial classification of light and video-sound installations as not constituting art and therefore being subject to VAT at a rate of 20% (as opposed to 5% charged on artworks). The logic behind the regulation is inherently flawed given that VAT is said to be charged on the work's value as "sculpture" - clearly far greater than the value of its component light fitting parts. Pierre Valentin of Withers, London, who spoke to The Art Newspaper back in December, has now published an article in the opinion section of the site discussing in more detail the European Commission's move to "define" what is art or what is not art to be more precise. Valentin describes the European Commission's promulgation of EU regulation 731/2010, which overturns the decisions of two member states' (the UK and the Netherlands) tax tribunals, as a "mockery of the judicial process." But doesn't this case simply illustrate the fact that in the hierarchy of legislative sources in member states, EU law trumps national laws? Of course this doesn't justify the regulation in either substance or form (the reasoning is frankly absurd and there was no publicity or public consultation). However, the notion of the Commission taking a view on an issue different to that of two member states is hardly shocking. Furthermore, the "consensus" was among only two of the twenty-seven member states...

Tuesday, January 11, 2011

NEW YORK. Last month I was interviewed for a piece in The New York Times on the rise of art funds and art securitization generally. The piece is now available here. As I explained to the author, the reasons underlying the growth in art funds are several. Firstly, 2010 saw record auction prices being set for painting, sculpture, rare books and Chinese art and the article correctly references each of these. Secondly, as investments in traditional assets (stocks, bonds) continued to perform erratically, the notion of art as an alternative investment class was firmly consolidated, albeit partly by default, and art is now widely held as an acceptable and important way of diversifying investment portfolios. Thirdly, since the on-set of the financial crisis, investors have shown greater interest in tangible assets including art.

The rise of art funds is not without problems and related to the question of how the pooled art assets will be valued is the issue of conflicts of interest. In Russia for example, investors can not only pay cash for units in the two art funds established by the asset management firm Leader -- they can also contribute art instead, with the fund managers themselves determining how many units an investor gets for a particular art fun. This means that public investors, likely to be investing cash rather than expensive works of art, may be overpaying for the fractions of the art works they will own. The risk of "close friends" of the managers acquiring an inflated number of units is very real given the overlap between wealthy art collectors and financial professionals (and even more so in Russia). While disclosure is vital and would allow investors to assess the risks associated with any conflicts of interest, fund managers should be outsourcing the valuation of the assets to an objective, independent source but in such a knowledge-intensive market, the options are slim. Another issue is how freely transferable the units will be. From what I've read to date on the subject, investments through art funds are medium to long-term which makes sense given how illiquid art assets but it is unclear how liquid the units themselves will be.

Setting aside the legal and financial issues, it's very interesting to see the quote from the President of the Art Dealers Association of America stating that she "would never allow a young artist to sell artwork to a pooled fund." Resistance from certain subcultures within the art world is to be expected but that's a pretty strong statement coming from someone who is actively involved in the art market (Lucy Mitchell-Innes is the co-founder of the Chelsea-based gallery Mitchell-Innes & Nash). Stay tuned for much more on this fascinating field.

Members of the British Expeditionary Force posing with looted art from

the palace of the Benin King, Nigeria. Source: Myweku.com

﻿ ﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿﻿I previously posted about the controversial auction at Sotheby's next month of a Benin mask that was expected to set a record price for an African antiquity. The 16th century ivory mask, "one of the last great masterpieces of Benin sculpture remaining in private hands," is believed to have been looted by British troops from 19th-century West Africa. According to The Independent, "protests against the sale of the mask began at the end of last month on social networking sites and an online petition was circulated by a group calling itself the Nigeria Liberty Forum." The article went on to say that the auction has since been cancelled and a statement released by Sotheby's on December 24 says that "the Benin ivory mask and other items consigned by the descendants of Lionel Galway which Sotheby's had announced for auction in February 2011 have been withdrawn from sale at the request of the consignors." We can only speculate as to what their reasons for doing so may have been. If and when the mask does come up for auction in the future, I wonder if its provenance will have been irreparably tainted as a result of last month's protests or whether the protests will have had the opposite, unintended effect which is to make the object a fetish of the market.

Sunday, January 09, 2011

Judith Dobrzynski reports on the newly-created ad-hoc advisory committee to the NY Board of Regents which is intended to aide the Board in coming up with a revised deaccessioning policy (see here on the expiration of the deaccessioning "emergency" regulations last October and the outcry that ensued).

Gerard Malanga, former Warhol Factory assistant, is set to finally have his day in court in the longstanding dispute with the sculptor John Chamberlain over the silkscreen titled "315 Johns," estimated to be worth $5m. Malanga claims authorship and restitution alleging Chamberlain never acquired title and therefore did not have the right to sell it in 2000. Testimony given by Chamberlain's wife suggests the sculptor knew the work was not a Warhol; the Warhol Authentication Board though declared it an authentic piece in 2000, paving the way for its sale. The court, however, is not bound by the Board's declaration.

Saturday, January 08, 2011

Buyers and sellers of art in the private market (and to a lesser extent at auction) often overlook the fundamental question of "who acts for who," otherwise known as the legal concept of agency.

The distinction is crucial because an agent is a "fiduciary" of its principal and as such the highest standards at law are imposed on him. An agent owes his principal strict "fiduciary duties" including the duty of loyalty which entails not only acting in good faith in the best interests of the principal but also the duty to avoid conflicts of interest (the art world being a breeding ground for conflicts). Similarly, only an agent acting on behalf of its principal has the authority to sell an artwork and the legal title to pass ownership to the buyer (although where authority is lacking, a principal can ratify the conduct retroactively).

An article in The Art Newspaper does well in bringing attention to this subject because clearly one's legal rights and protections w/r/t a transaction for the sale or purchase of art are integrally bound-up with the principles of agency. The private market is characterized by the lack of disclosure and the prevalence of undocumented transactions where parties are often unaware of who owes them what duties. At auction this is less of a problem as there is far greater transparency and the terms and conditions of sale published by the major auction houses unequivocally state that the auction house is an agent for the consignor (i.e. seller) of the art (see Sotheby's "Terms of Use"). Furthermore, the law itself imposes fiduciary duties on auction houses whereas it generally does not on dealers which means the parties themselves must create agency relationships, preferably in writing. The article points out some of the art world conventions that do genuinely represent an obstacle to achieving increased transparency and documenting transactions but my mantra remains unchanged: disclosure and contract are indispensable to protect your legal rights when buying and selling art (though to be clear, a contract, oral or written, is not required to form an agency relationship).

Friday, January 07, 2011

Jeff Koons' lawyers have sent the Park Life gallery in San Francisco a cease-and-desist letter in connection with its sale of balloon dog bookends manufactured by Toronto-based imm Living. The artist claims the bookends violate his intellectual property rights due to their resemblance of his iconic giant-sized sculptures "Balloon Dog." Of course as ARTINFO points out, the bookends also resemble "a conventional balloon dog of the kind commonly found at circuses and children's birthday parties."

Surely it cannot be the case that artists who appropriate everyday objects to create artworks (a trend initiated by Marcel Duchamp's "readymades") have the exclusive right over "all likenesses" of those objects. In the unlikely case that this incident does end up in court, I don't think the precedent referred to by ARTINFO is in fact relevant as the facts here can be distinguished from those in that case. In Blanch v. Koons, the artist had appropriated part of a copyrighted image to make what the court determined was a "fair use" of such image. In this case however, the artist is not making use of a copyrighted image -- he is simply using the likeness of an everyday object, a balloon dog, as the inspiration for his sculptures. I don't know enough about intellectual property law to state what Koons' strongest legal claim is ("fair use" certainly is not) but I expect it would involve some kind of comparison between the bookend dog and the "Balloon Dog" in terms of materials, shine, proportions etc. In other words, the court will ask just how similar the bookends are to the sculptures. I wonder whether the context in which the bookends are found (the art shop of a gallery) makes a difference (Park Life's suggestion that the letter should have been sent to the manufacturer instead of the gallery could be interpreted as implying that the context in which the balloons are found are not relevant to the issue of whether or not the artist's rights are being violated).

In a previous post last October, this blog reported on how a court in Rome had ruled that the statute of limitations had run on the two criminal charges brought against the former Getty Museum curator Marion True. While the proceedings were a vitally important wake-up call to those operating in the antiquities market, I personally found it exceedingly unfair that True should have been the one to pay the price for the widespread illicit practices so many were engaging in (also, from a legal perspective, the charges were inherently flawed as noted in the post linked above).

Now The Art Newspaper has published Marion True's own account of her trial or lack thereof. True opens up about why she chose not to waive the statute of limitations and wonders why the Italian government decided to mount such an aggressive attack on an institution and a curator with a purported long history of tightening antiquities acquisition policices. Admittedly, the whole affair was hugely politicised and the Italian authorities should probably have simply asked for the return of the disputed objects as Marion True argues. But if they'd done that then the problem of looting and trafficking in illicit antiquities would not have received the international media attention it desperately needed.

See also Paolo Giorgio Ferri, former prosecutor involved in True's case, on the "scourge of looting."

Art Meets Lawis a blog dedicated to the most noteworthy legal developments affecting the global art market today and in particular London and New York. Now that the author is permanently based in London (and given the dearth of art law blogs this side of the Atlantic), the focus will be primarily on English rather than New York law. Areas covered range from commercial contracts, consignments to auction, art investment funds, loans against art, artists' rights (copyright, droit de suite, moral rights), import and export and taxation, among others, but always with the following aim in mind: to cater to the interests and concerns of market participants transacting in art, whether on the buy-side or the sale-side.

The blog also features a series of posts titled "ART PICK OF THE MONTH" where the author reviews an exhibition, book or other artistic expression considered to be the highlight of that month.

About Me

I am a dual-qualified corporate lawyer with a lifelong passion for the visual arts and its intersection with the law.
All the views expressed on this blog are exclusively those of the author and no one else's.