Boldly Go

I've been meaning to mention this Appellate Division decision affirming the dismissal of a claim against Christie's by a disappointed buyer of Star Trek memorabilia. You can read some background on the claim here. The buyer was held bound by Christie's Conditions of Sale, which in this case (1) "expressly declared that 'all property is sold as is' without any representation or warranty of any kind by Christie's or the seller" (typically not the case for fine art auctions, which come with a warranty of authenticity) and (2) "contractually precluded" him "from pursuing the massive recovery he now demands" because "the only remedy available to him thereunder would be a refund of the sale price(s) upon return of the item(s), a limitation generally permissible in contracts for the sale of goods" (a limitation which typically does apply in the fine art context).

The court also ruled that there was no claim under NY General Business Law sections 349 and 350 because "a party seeking those remedies must charge conduct that is consumer oriented, with an impact on the public at large." Similarly, punitive damages were unavailble since "the misconduct alleged here, which arises from a private contract, does not resemble the egregious wrongdoing that could be considered part of a pattern directed at the public generally."

Another

The West Valley Art Museum in Arizona has closed.

Reviewing the Years in Review

The year-in-review articles and posts have been trickling in, a number of which touch on art-law related matters. Derek Fincham has the Year in Cultural Policy, including the following on deaccessioning:

"One of the difficulties with deaccession stems from its connection to our fundamental view of art and museum governance. What is the nature of art? An art museum? Are either permanent? Can we trust the governing structures in our museums? Our inability to find common ground in crafting answers to these questions accounts for the continued difficulty. But if the arts community cannot come together and craft viable solutions to these difficulties, we are going to be left with weaker cultural institutions and risk losing more works as a result of financial difficulty."

Ed Winkleman's Top 10 New York Art World News Stories of 2009 included, at no. 2, the Salander debacle (Ed takes the opportunity to remind us that "Bernie Madoff is to Larry Salander what AIG's losses are to your personal 401(k)") and, at no. 1, the New Museum controversy.

The Boston Globe's Sebastian Smee reviews "a frankly incredible year in art," beginning with the Brandeis-Rose story ("The art world, the media, and a sizable swath of the public voiced strong opposition to the plan, and Brandeis eventually retreated - with mincing steps, it has to be said - from its original position: The museum would stay open, it promised, but it refused to rule out the possibility that art would be sold"), then "things got even weirder" with the arrest of Shepard Fairey "for graffiti-related activity" -- "embarrassing, sure - but worse was to come": Fairey's recent "admission that he had lied to a federal court judge about which photo of Obama he had based his 'HOPE' poster on. He had also destroyed evidence to cover up his lie. His lawyers dropped him. Fairey continues to do his thing, but he looks a little tarnished." Smee also mentions the controversy surrounding the Isabella Stewart Gardner Museum's expansion plans.

Another Massachusetts-centric review mentions the Fairey arrest and the Rose story ("Though the museum director was let go, the remaining staff has mounted several shows including a recent retrospective that highlighted treasures of the Rose's collection of 7,000 works, valued at $350 million before the recession. While families and businesses everywhere must also make painful economic choices, the Rose Art Museum remains on legal life support reminding patrons all art comes at a cost").

Finally, a review of the decade in Pennsylvania includes a judge's ruling "in a years-long battle that the Barnes Foundation could move its multibillion-dollar art collection to downtown Philadelphia from suburban Lower Merion."

I guess "in storage" is kind of like "in the public trust"

The Claremont Museum of Art has closed.

"[The complaint's] subjects swing from accusations of sex slavery to a detective's allergy to cats"

Greg Allen: Pebble Beach Pollock Case Gives Year-End Burst of Crazy.

Business Audits Down, Individual Audits Up

The TaxProf crunches the numbers.

"Museum staff have stated that they have tightened their payroll management system to prevent this type of crime from happening in the future"

A former payroll manager at the Brooklyn Museum (mentioned earlier here) has plead guilty to charges of embezzling more than $620,000 by making payments to phantom employees: "According to an affidavit released by the U.S. Attorney’s Office for the Eastern District of New York, Newton’s scam began in 2005 when he created a profile for a fictitious employee known as 'Brooklyn Museum' or 'Brooklyn.' From that time until July 2008, he allegedly issued 138 fictitious payroll checks, most of which were deposited into bank accounts that he controlled, including a joint bank account with his wife. Some of the checks issued in 2008, the affidavit says, were made payable to another fictitious employee known as 'ZYX.'"

Friede Feud Finished

At least tentatively so. The San Francisco Chronicle reports: "Most of the M.H. de Young Memorial Museum's cornerstone collection of Oceanic art will stay put under a deal that San Francisco officials have struck to resolve an inheritance dispute that threatened to have the collection dismantled. The tentative settlement ... will give the de Young clear title to 274 of 398 pieces of Papua New Guinea artwork housed at the city-owned museum - a compilation that nation's ambassador to the United States hailed as an 'unparalleled and extensive collection of masterpieces.'"

It's a complicated story. The Art Market Monitor says it "involves a dizzying number of agreements and cross-conflicts between the heirs" and, "along the way, Sotheby’s became a creditor" too. Kate Taylor took a crack at a summary in the NYT last year. The settlement seems to have some deaccession-ish aspects to it:

"John Friede had paid his brothers more than $22 million of the $30 million [he had agreed to pay them], but legal fees and interest made the shortfall around $10 million ... In April, the city agreed to sell 76 works not at the museum to help pay the Friedes' debts. Only some have been sold. Under the settlement, the balance John Friede owes his brothers will be set at $5.65 million and will be paid from three sources: John Friede's one-third share of the Pierre Bonnard painting 'Le dejeuner' that he owns with his brothers; a portion of a $3.7 million payment from his mother's estate that was to go the de Young to pay for upkeep, promotion and study of the Jolika Collection; and proceeds held in escrow from the sale of some of the works not housed at the museum ...."

Naughty or Nice: The Claus Saga

Claremont Closing Sunday

"Bowing to continued financial pressure and a lack of donations, the Claremont Museum of Art said today that it would close its doors to the public on Dec. 27 and move its permanent collection to a warehouse."

Judith Dobrzynski isn't shedding many tears.

Worthy Cause

I don't usually use the blog for this sort of thing, but wanted to call attention to a really terrific event that our clients Richard and Clara Serra are putting together to benefit The Family Resource Center of The Partnership for the Homeless. A bunch of great artists are participating, and it's hard to think of a more worthy cause -- looking out for the education of homeless kids. Check it out.

Why I am Glad to Practice Law in The U.S. (Not the UK)

They certainly do things differently over there.

The Chauffeur (allegedly) Did It

I'm a little late on this art crime story, but worth mentioning:

"Cops say former chauffeur James Biear ripped off the 80-year-old grandson of newspaper magnate Joseph Pulitzer, stealing an Andy Warhol painting worth $220,000, a $64,000 sketch and family heirlooms from [the victim's] Greenwich Village home, police said."

The plan apparently "came to light when Biear's ex-wife told insurance investigators much of his stuff was stolen, a police source said. That's when FBI agents and cops knocked on Biear's door."

Guilty Plea

Newsday reports: "The former director of Long Island University's Hillwood Art Museum admitted Friday to stealing nine ancient Egyptian artifacts and pocketing $32,000 from the sale of some of them, saying he did so to seek retribution against LIU for mistreating him."

Earlier post here.

"We're appealing to get a clarification" (UPDATED)

Even though, on the whole, he prevailed in his lawsuit against the University of Alabama, sports artist Daniel Moore wants the shutout:

"In a November ruling, Senior District Judge Robert Propst said that Moore's paintings of football players don't infringe on any UA trademark so long as no university symbols or logos are used. However, Propst also said that ... Moore has and will infringe on the UA's copyright when he creates reproductions of his artwork that 'include any University of Alabama football uniforms on mini-prints, mugs, cups, calendars, flags, towels, T-shirts or any other mundane products.'

"Stephen Heninger, Moore's attorney, disagrees. Because Propst ruled that Moore's artwork is protected, that artwork should be able to be transferred to coffee mugs and the like. 'We think it's clear,' Heninger said. 'We own the copyright of the paintings. They're protected, so we have the right to make reproductions. We're appealing to get a clarification.'"

Alabama plays Texas for the national championship Jan. 8.

UPDATE: An important correction from Sergio Muñoz Sarmiento. The national championship game is Jan. 7, not the 8th.

He also likes Texas in the upset. I say the Tide rolls, by at least two touchdowns.

On Moore's appeal, he says "it seems pretty clear cut. If Moore owns the copyrights to his own paintings, and they don’t include any Tide logo or trademarks, then it seems to me he’s in the clear." I'm not so sure about that. When it comes to merchandise (t-shirts, coffee mugs, etc.), it's a much closer call.

Randolph Resolution

The Randolph College deaccessioning lawsuit is over: "Lynchburg Circuit Court Judge Leyburn Mosby signed an order distributing the $500,000 bond that secured the temporary injunction that barred the sale of the art in late 2007. The bond is to be divided with $300,000 going to Randolph College. The remaining $200,000 and the interest on the bond is to be returned to the plaintiffs who raised the money in an attempt to stop the sale of four paintings from the museum."

Randolph's president issued a statement saying: "While we are pleased with this settlement, it in no way recovers all of the damages incurred by the College as the result of the injunction preventing the sale of the paintings at a high point in the art market."

"Art is simply not an asset class which lends itself to hedge-fund strategies"

Says Felix Salmon.

"No one wants to sell your collection ..."

"... but we’ve had the collection in storage for 3 years and we felt that this was urgent enough that we needed these funds to save this program."

The Hollywood Entertainment Museum is auctioning off items from its collection, not to buy more Hollywood memorabilia, but to preserve its educational programs. Quick, someone alert the Deaccession Police!

Aren't these items held in the public trust, to be accessible to future generations of Hollywood memorabilia lovers? The museum is a 501(c)(3) that enjoys the same tax benefits as any art museum. So why is it okay for it to sell its collection but a great crime when a museum wants to sell a work and use the proceeds for anything other than buying more art (including to keep from having to shut its doors)? If it's not the tax exemptions that convert a museum's assets to the "public trust," what is it?

Speaking of which, let me recommend a good piece by Evelyn Brody and John Tyler at PhilanthropyRoundtable entitled How Public is Private Philanthropy? An excerpt:

"There is a long list of tax-favored treatments ... that various levels of government afford to individuals and businesses ..., without impairing or prejudicing the underlying autonomy and private nature of the beneficiaries of such treatment. For example, individuals enjoy deductions for the mortgage interest and property taxes they pay on their homes; the exclusion of ... gain on the sale of their principal residences; deductions or exclusions for retirement contributions, health insurance, and tuition; and tax credits for higher education, dependent care, and children. Government does not claim that it is thereby entitled to dictate the lifestyle, consumption and savings patterns, childbearing and child-rearing choices, furniture tastes, or college majors and courses of study, or to make any other such decisions for individuals who claim these deductions and credits."

As I've said before, no one thinks "we" own every asset of every every church, school, etc. in the country. What makes works of art any different?

"And of course, hundreds of others have cut staff, hours, programs"

Judith Dobrzynski counts 26 museum closures in 2009.

Poster Boy Update

Poster Boy (profiled earlier this year by Randy Kennedy in the NYT) agreed to a plea deal requiring 210 hours of community service.

Hiatus Due to Snow

As those of you that follow the news might know, we're buried under about 2 feet of snow here in the Appalachians. My power is out with estimates that it won't be back until 27 December. I've only got internet at a couple of local eateries and can only occupy a table in the warm, dryness of the Pine Mountain Grill for so long.

So, for the near future I wish you all a Merry Christmas and hope to put something up on the blawg soon.

Off Point: Nope, It's Not English

This video has popped up on several sites I've looked at this morning. The song is catchy, but it's complete jibberish. The idea behind it is to let English speakers know what they sound like to those who don't speak the Lingua Americana.

In a world where work is sparse $80K to not work sounds good

Apparently, some law firms are offering attorneys large sums of money to defer their acceptance for a year. According to some of the comments posted after this ABA article, accepting that money could compromise their career and it would look bad to have a year of unemployment on their resume. Do you agree? I think that it would be great to not have the pressure of the big firm life and be able to use that time in other ways to advance the legal field while not having to worry about where your next meal is coming from. But I work for the government, so what do I know?!

Fresno museum set to close

"Absent a miracle," it looks like the Fresno Metropolitan Museum is about to shut its doors. The Fresno Bee has the story here.

I found this part interesting. Apparently, a limited liability company called Friends of The Met was formed to raise money for the museum. If the museum were to close, the LLC "would be repaid at least in part by the sale of the museum's assets, including its art collection" (my emphasis).

So let me get this straight. A struggling museum cannot sell art to keep from closing. That would be awful, a violation of the public trust, repulsive, Stalinesque, you know the rest.

But if it closes, what happens to the art?

It's sold, to pay off creditors of the museum.

Does that really make sense to anyone?

"This is the only time I can think of when someone has allegedly stolen something and soon thereafter has consigned it himself to public auction"

The New York Observer on an unusual art theft investigation.

"That will continue, regardless of where the foundation is located"

Philadelphia Weekly talks with Blake Bradford, the Barnes Foundation’s new director of education. He says: "The hang [installation of the paintings and objects] is going to be the same; the galleries are going to be the same. It won’t be the mosh pit, blockbuster experience. We’re not going to turn this place into Disneyland."

"Even security experts find the linkage of terrorism and photography dubious, at best"

Jim Johnson: British Authorities Continue to Harass Photographers (some more).

Art theft via backhoe

You don't see that very often. From the AP: "Police say a Pennsylvania man used a backhoe to break into a museum owned by his father -- the renowned fantasy artist Frank Frazetta -- in an attempt to steal 90 paintings worth $20 million." You also don't see many museums described as being "owned" by someone, so this is a pretty strange story all around at this point. [via]

The Virginia Court of Appeals Overrules the Virginia Supreme Court on Whitehead

A while back the Virginia Supreme Court came out with an opinion about the "right result / wrong reason" doctrine wherein it stated in language plain for all to see:

Whether Whitehead received the stolen property here by constructively possessing it is not properly before us, because the Commonwealth makes this argument for the first time on appeal. It is true that “[w]e do not hesitate, in a proper case, where the correct conclusion has been reached but the wrong reason given, to sustain the result and assign the right ground.” Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963). However, cases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not “proper cases” for the application of the doctrine.

Whitehead v. Commonwealth was a case wherein the Supreme Court (1) rejected as plainly wrong the findings of the trial court and the court of appeals that a person could be convicted of receiving stolen goods when she received benefits from a third party's theft and sale of goods (boyfriend paying her rent, etc.).

(2) Then it dealt with the Commonwealth's assertion that Whitehead was still guilty because she was in constructive possession of the stolen items (they were stored in her apartment). The Supreme Court rejected that argument with the reasoning above which basically boils down to "The right result / wrong reason doctrine does not apply to uphold a conviction if the ARGUMENT was made for the first time on appeal and the trial judge was never given the opportunity to rule on the ARGUMENT."

(3) Finally, the Supreme Court dealt with another argument the Commonwealth presented first during the appeal: concealment as proof of participation. This the Supreme Court rejected this argument by (a) first adopting the rationale that it had under constructive possession argument

Because this argument was not made at trial, the Court of Appeals erred when it held that the evidence provided this additional rationale to support Whitehead's convictions.

and then it moved into an area which the Court of Appeals had previously addressed. The Supreme Court noted with approval prior Court of Appeals cases which had held the rather commonsense position that (b) an appellee cannot argue on appeal a position which would require evidence which had not been provided during the trial. In fact, it takes the Court of Appeals doctrine one step further.

Because the Commonwealth limited its method of proof at trial, Whitehead was not on notice to present evidence to rebut any other method of proof possible.

In making this determination, the Supreme Court discussed how this applied to both the constructive possession argument and the concealment argument.

So, in the end, the Supreme Court ruled that an appellee's new argument couldn't be heard when first raised during the appeal because (1) the trial judge had no opportunity to rule on the new argument and, (2) if the Commonwealth tried to prove its case via one method of proof it cannot offer another method of proof in the appeal because the defense attorney had no opportunity to rebut the new method in the trial court.

----------

Comes now the Court of Appeals.

In Perry v. Commonwealth the Court of Appeals is faced with the Commonwealth making a probable cause argument instead of the reasonable articulable suspicion. The Court of Appeals "assume without deciding" that the trial court got the reasonable articulable suspicion decision wrong. Then it moves on to the right result / wrong reason doctrine and Whitehead. It specifically quotes the first part of the Supreme Court's rationale

The Supreme Court refused to consider this new theory of guilt offered by the Commonwealth, stating "[C]ases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not 'proper cases' for the application of the doctrine."

Then comes the all important word of the new opinion

Nevertheless

Then the Court of Appeals goes on to decide

Whitehead, contrary to the appellant's claim, applies only when the new argument made on appeal involves a consideration of factual findings that the trial court never reached, rather than application of a different legal theory to facts already considered by the trial court.

Following this, the Court of Appeals rules that since both reasonable articulable suspicion and probable cause are 4th Amendment issues and arguing one 4th Amendment issue at trial suffices to preserve other 4th Amendment issues arising from the same acts.

We find that this case presents an appropriate situation for the application of the right result/wrong reason doctrine. . . . [T]he parties here were aware at all stages of this case that the courts would look to the Fourth Amendment to determine if Trooper Weidhaas’s actions were appropriate - regardless of whether the question involved probable cause or reasonable articulable suspicion.

It then goes on to uphold the search based upon a reason never argued in the trial court.

-----------

Of course, this is, as even the Court of Appeals obviously noted, contrary to the holding in Whitehead. This argument was never made before the trial judge and therefore never allowed the trial judge to an opportunity to rule on it. Thus it fails the first part of the Supreme Court's decision.

As to the second part of the Supreme Court's decision, it's obvious that the appellant never had the opportunity to rebut this different argument in the trial court. An argument never made in the trial court isn't even presented for a defendant to rebut. Yes, they both fell under the umbrella of the 4th Amendment, and I'll "assume without deciding" that no different evidence would have been presented had the new argument been made. Still, the arguments which would be made as to whether an arrest was legitimate under the 4th Amendment are far different from the arguments made as to whether there was reasonable articulable suspicion. The standard of a Terry pat down and the facts which justify it are more easily met than probable cause. A defendant arguing against probable cause for an arrest is definitely going to be making different arguments than a defendant arguing against reasonable articulable suspicion. The one saving grace here for the Court of Appeals is that while this part is wrong it would probably be held to be harmless error.

Hopefully, the Supreme Court will take this case and decide whether it will alter its decision to come into compliance with the Court of Appeals or overrule the lower court. If it doesn't do it with this case the Supreme Court will have to face this issue at some time in the future because every time the Attorney General's office and the Court of Appeals use Perry the obvious appeal to the Supreme Court will be based on Whitehead.

"The institution anticipates that it will not be able to resume these or any other payments with respect to the bonds for the foreseeable future"

The American Folk Art Museum seems to be having some financial problems.

Some would say that some would say that the museum should just sell a couple of Henry Dargers to take care of the problem.

But what I would say, first, is: Why does it have to be a couple of Dargers? We keep being told that museums have mountains of stuff in their basements, just taking up space. Why is it completely off limits to even consider selling any of that "stuff"? Museums routinely cull through their collections to identify the less essential items they can sell to raise money to buy more art (without controversy). Why is it out of bounds to wonder about the sale of those very same items (presumably not Dargers) to help a museum in financial distress?

And second, as a last resort, if it meant the difference between the museum continuing to operate or going out of business (or, perhaps, being "stolen" by the evil museum-thieves in Philadelphia), would it really be wrong to think about selling even a couple of Dargers? Apparently the museum owns all four of the unpublished manuscripts that were discovered at Darger's death ("comprising more than thirty thousand pages of text"), "approximately three thousand items from Darger's archive of ephemera and source material," and "more than two dozen paintings." If the museum ends up owning the manuscripts and archive but, say, 22 paintings instead of 25 -- if that's what it takes to keep it alive (and out of Philadelphia) -- is that such a terrible outcome? Or is it better to let them fail?

It's hard to tell from these initial reports just how serious the museum's problems are, nor do we know how far the sale of any of the art (of the Darger or non-Darger variety) would go towards solving those problems. But the attempt to preemptively rule out certain possible solutions strikes me as unwarranted.

More Law School for Visual Artists

Yesterday I mentioned Jonathan Melber's upcoming course at the School of Visual Arts. Today I see that Volunteer Lawyers for the Arts has a similar series starting in February, taught by artist and lawyer Sergio Muñoz Sarmiento. Details here.

Annie Leibovitz Update (UPDATED)

In today's New York Times. The Art Market Monitor says "the resolution of her deadline with Art Capital seems to have come at great cost by adding more debt to the already substantial pile."

UPDATE: Felix Salmon: "the chances of a happy ending here, for anybody concerned, are still very slim."

New Journal of Art Crime Column

The new issue of ARCA's Journal of Art Crime is out. My column this time is on the Ninth Circuit's decision in Von Saher v. The Norton Simon Museum. An excerpt:

"The implication of the decision seems to be that, if California had extended its statute of limitations for all stolen property claims (or for all claims of stolen artwork in particular), then the claim would have survived. California can host any number of Nazi-looted art cases if it wishes - even if the point is to 'rectify wartime wrongs' and even if they require courts to review restitution decisions made by other countries. But what it cannot do is extend the statute of limitations for those claims. It's a strange result."

"The story of a fraud investigation that uncovered a philosophical problem"

Via The Art Market Monitor.

Know Your Rights

Jonathan Melber, co-author of ART/WORK: Everything You Need To Know (And Do) As You Pursue Your Art Career, will be teaching a class this winter at the School of Visual Arts called "Law School for Visual Artists." The course description:

"Taking a practical, user-friendly approach to legal topics for visual artists, this course will address how to protect yourself and your artwork in a way that's easy to understand. Topics will include consignments, copyright registration and the Visual Artists Rights Act, as well as basic contract-law principles that will help you better understand the legalese in art-world agreements. We will draft consignment and commission agreements, and review the common terms of gallery representation arrangements. Learn what your legal options are if things go wrong, such as damage to your work, gallery non-payment and copyright infringement."

Tips for Year-End Charitable Donations

From the IRS.

Exactly

In an interview with Sarah Douglas, David Gordon, former director of the Royal Academy of Arts in London and the Milwaukee Art Museum, has this to say about deaccessioning:

'The position of the American Association of Museums and the Association of Art Museum Directors is that it is always wrong unless the funds are used to buy new art. I disagree. Suppose you have a museum in a city that has fallen on hard times and its base of support has diminished but it still has a great collection. You wish to make sure that the museum stays open six days a week, that its artworks are being conserved and that it’s able to put on adventurous exhibitions, but you don’t have the money to do any of this. As you cut costs, you are in particular danger of weakening the conservation program, so that the fundamental function of the museum, as a guardian of works, is jeopardized. In that circumstance, it seems wrong to say, 'Well, you can’t do anything that involves the art.'"

I'm immediately inducting Gordon into my Museum Director Hall of Fame (along with Hugh Davies, Richard Armstrong, and Christine Miles). I mean, how is what Gordon says even remotely controversial?

Thanks to the Deaccessioning Blog for the pointer. Related Deaccessioning Blog posts today:

Did Deaccessioning Thoughts Lead to RISD Director's Ouster?

Economic times will force us to face reality.

Drouot Charges

Preliminary charges have been filed against nine employees of Drouot auction house in Paris in the stolen art case mentioned in the weekend wrap-up here. The New York Times explains that "under French law, preliminary charges give the judge more time to investigate and determine whether to send the case to trial." Mark Durney says: "Now that charges have been filed, it should be interesting to see if any other illicit art surfaces during the process of discovery."

"We can confirm we had a report of a stolen brick from a gallery and we are investigating it"

A brick work by artist Gavin Turk was stolen from a gallery -- and replaced with a much less valuable brick, with the words "Thank You Have a Nice Day, Next" printed on it. Story here.

"I should never have tried to cover it up, and I regret that more than anything in my life"

Shepard Fairey talks to New York magazine. Among other things, he says that "since the lawsuit started, I’ve been very careful. I collaborate with photographers, or licensed photographs, or shoot my own photographs and use friends and family as models."

"A really good example of the disjoin between what the law says and what people think the law says"

Lawprof Jacqui Lipton reminds us that the Copyright Act is "a strict liability statute" -- "the intention to infringe is irrelevant."

Up, up, & away!

I'm having a discussion with another prosecutor about how libertarianism is superficially attractive, but not a philosophy I can live with in the end. I explain that I just can't adopt the "let them die in the streets as long as they don't bother anybody else" point of view for practical and (mostly) moral reasons to my skeptical co-worker. Then a third member of the office walks over and says to skeptical co-worker, "I think you two are going to end up doing the same thing in the end anyway." We both look at him quizzically and he goes on to explain:

"You see, you'll get there because you don't want to lose a case. Ken? He'll get there because he's Clark Kent."
.

Weekend Links

A bunch of art law stories over the last few days:

• Bloomberg reports that "Italian police seized art work valued at more than $149 million belonging to Calisto Tanzi, founder of Parmalat Finanziaria SpA, who is on trial for fraud linked to Italy’s biggest bankruptcy." Lots more from Greg Allen, who says "there's little to warrant the term 'masterpiece' at all, and it's hard to see how to get to the EUR100 million value the police claim the stash is worth. But it makes for a neater headline."
• Edelman Arts apparently got a $750,000 default judgment against Gmurzynska gallery in a lawsuit over a damaged painting, then got US marshals to seize four paintings from the Gmurzynska stand at Art Basel Miami Beach "only 90 minutes before the first VIP guests entered" -- but the matter was then quickly resolved and the works returned. The Art Newspaper has the story here.
• "French police detained 12 people in a sweep of a respected Paris auction house Wednesday after finding a stolen Courbet painting worth $1.3 million at an employee's house."
• An update on a violent art theft in the U.K. a couple of years ago.
• "A reminder of how clever fraud can be."

Tokyo Vice

Book rating scale:

5: Touched by God - a work which makes Shakespeare look infantile
4: Amazing - Instantly began rereading it and quoting it to friends
3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests
2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy
1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves

I rate Tokyo Vice a 3.7. It's an intriguing look into the criminal underbelly of Japan mixed with the lives of newspaper reporters and police.

I first heard about this book when I saw the author hawking it on the Daily Show. His main hook is the biggest scoop of his career: uncovering FBI cooperation in bringing a Yakuza boss to the US in order to get a liver transplant. Of course, this is a big thing to him. It ended his career as a reporter in Japan, got him published in the Washington Post, got him death threats, probably got a female friend of his killed, and brought down a high level gang boss. It's a big story. However, it's not what draws me to this book (BTW, I listened to this via audiobook).

What really makes this interesting to me is the exposure to a very different culture. We start out with an explanation of how people get hired into a major Japanese newspaper and how it is to work the police beat.The hiring process is very different than what we have. In Japan every paper administers its own type of SAT type test and then puts people through a series of interviews before selecting new reporters. People don't work their way up from smaller papers to the big leagues; its like being hired by the New York Times or Washington Post straight out of college. And the police beat seems to work a little differently than I think it does in the US. One of the pieces of advice given to the author is to drop by the police officers' homes and make friends with them. That seems to go over pretty well in Japan. However, I will not recommend this approach in the US; I'm not sure I can vouch for the safety of a news reporter who drops by a deputy's house at 1 a.m. after he's gotten back from his shift.

We also get a pretty good look at the Japanese sex industry. The way it's presented, Japan has a massive, thriving industry in which men can get all sorts of things, ranging from just sitting and talking with a pretty woman at a hostess bar to clubs where girls dress in all sorts of costumes to a club which has its own subway car so that a guy can go into it with a girl and "molest" her. Pretty much anything is legal and the cops only intervene on rare occasions (technically vaginal sex is forbidden and if there is a reason the police want to shut someone down they may use this). Apparently, wives in Japan accept this as just something men do. At least we know that the one time the author admits an infidelity to his wife that she just tells him to keep it to himself and not bring home any diseases.

Interacting in this sexual community is what starts to give the author his insight into the Yakuza. It's not like the Mob here; in Japan the mobsters are so looked up to that there are fan magazines dedicated to them. The author starts to see that women, especially foreigners, are not doing all this willingly and are being forced into doing things and paying "taxes." The mobsters lean on them because they don't have valid visas and everyone knows that the police will not deal with the problem. If notified all the police will do is exactly what the mobsters are threatening: the police will merely eject the girl from Japan. From there we are shown more and more of the underside of Japan and how it is ignored by both the populace and police, especially if foreigners are the victims.

I listened to Tokyo Vice via audiobook and kept stopping the audio and rewinding it to listen to things over. It's a book which both those involved in criminal justice will find interesting as well as those who are interested in reading about cultures quite different than the one we've grown up in.

"It is easier to assert a conspiracy than to comprehend a complex reality"

The Philadelphia Inquirer prints the comments of Barnes chairman Bernard C. Watson at last month's groundbreaking at the new site. He begins by noting that when he joined the Board of Trustees in 1999, "the foundation's finances were in shambles." He says philanthropists and foundations weren't interested in giving money to "an organization that had a legacy of expensive and distracting litigation, no credible business plan, or a governance structure that would make implementation of such a plan possible." And, he adds, "none of the people who continue to raise their voices in angry objection to moving the collection to the Parkway reached into their pockets to support us in any meaningful way in Merion."

He also says that the move "was, in fact, anticipated by Section 11 of the Barnes Foundation Indenture," which includes the following:

". . . should it for any other reason become impossible to administer the trust hereby created concerning said collection of pictures, then the property and funds contributed by Donor to Donee shall be applied to an object as nearly within the scope herein indicated and laid down as shall be possible, such application to be in connection with an existing and organized institution then in being and functioning in Philadelphia, Pennsylvania, or its suburbs."

Expungement

A note from a loyal fan (hey, if you're going to be anonymous I get to assume things):

Horrendously off-topic comment, but I'm evidently not smart enough to find an e-mail address for you anywhere on this blog, was hesitant to track down your work e-mail, and couldn't leave this comment on the post that prompted it because that post was the video you did on expungement in Virginia.

Eager readers (and viewers!) will remember that the gist of your presentation on expungement was: if your case was ended by acquittal, by nolle pross, or by dismissal (recognizing that starting a few years ago, 'dismissal' and 'nolle prosequi' are not synonyms) then you were entitled under § 19.2-302.2(A) to expungement. If you pled guilty, nolo contendere, or if the court disposed of your case with any finding that indicated there was sufficient evidence to find guilt -- even if it did not ultimately enter a conviction of guilt -- then you were out of luck, expungement-wise.

This summer, the Court of Appeals handed down a couple of consolidated cases out of Bristol -- Comm. v. Compton and Brown v. Comm. -- that appear to add another rule to the list.

Brown was charged with misdemeanor assault and battery, and the Salem General District Court took the charge under advisement for 12 months pending his successful completion of ASAP. After Brown completed the program, the court ordered the charge dismissed. The Commonwealth opposed Brown's subsequent expungement request, reasoning that requiring an alcohol program was the condition for the dismissal and this means he was not innocent -- notwithstanding the absence of any specific finding or plea to the contrary.

Compton was charged with felony abuse and neglect of a child, and the Bristol JDR court deferred any finding contingent upon Compton's submitting a written parenting plan and performing community service. Subsequent to her successful completion of these conditions, the court dismissed the charge, again without making any finding of guilt or accepting any plea from Compton.

In both cases, the Court of Appeals held that expungement was available.

This isn't any radical departure from the general rules your video discussed, but given the paucity of caselaw on the subject, I thought the addition of another set of specific circumstances that support expungement would be of interest.

Thanks. I have added an easier to find way to click and send an email to me. Hopefully this will make it easier next time.

Brown v. Commonwealth is a Virginia Supreme Court case. The note I filed away for myself after reading this case follows:

Brown v. Commonwealth, JUN09, VaSC No. 081417 & 081588: (1) The fact that a defendant obeyed a court condition in order to have a charge dismissed does not establish that the defendant was guilty. (2) If a case is taken under advisement for a period of time without entry of a plea or a finding of guilt or facts sufficient and then dismissed after a period of time the defendant can have the charge expunged. (3) A person who pled guilty cannot have a charge expunged even if the case was dismissed per a first offender statute. (4) A person who pled nolo contendere cannot have a charge expunged because he agreed to be treated as though guilty. (5) A defendant who pled not guilty and had a judge find facts sufficient cannot have his charge expunged. (6) Any charge dismissed pursuant to a first offender statute cannot be expunged.

Parts (1) & (2) are pretty much what Anonymous pointed out. I agree that this doesn't change the law. It just lays out a road map for those who want to leave people the possibility of expungement.

"Why stop to figure out just what is worrisome about the new rules and proposed laws when you can simply express indignation or outrage?"

Jim Johnson notes a NYT story on "a bill before the French Parliament that would require labeling of any advertising photograph that has been retouched."

"The film, for me, seriously undermined its own credibility by committing errors of substance and emphasis"

Lee Rosenbaum previews her review of the Barnes documentary, The Art of the Steal. I wasn't too impressed with the movie either.

"It raises the question of whether a private foundation such as this has any legal obligation ... to authenticate"

An important decision yesterday from the Appellate Division on the obligation to authenticate. For the most part, the case should provide a measure of comfort to artist foundations and authentication committees, but, as we'll see below, some uncertainty remains.

The case involves two theatrical stage sets (and related material) that the plaintiff claims are works by Alexander Calder. He submitted them to the Calder Foundation for authentication in 1997. He claims he never got a response one way or the other, and that without a confirmation of authenticity from the Foundation, he cannot sell the work. The trial court granted the defendants' motion to dismiss. The First Department has now affirmed.

First, the good news for similarly-situated foundations. The panel begins by noting:

"Whether the art world accepts a catalogue raisonne as a definitive listing of an artist's work is a function of the marketplace, rather than of any legal directive or requirement. As a consequence, neither the creation of such a catalogue nor its inclusion or exclusion of particular works creates any legal entitlements or obligations" (emphasis added).

It adds:

"[A] declaration of authenticity would not resolve plaintiff's situation, because his inability to sell the sets is a function of the marketplace. If buyers will not buy works without the Foundation's listing them in its catalogue raisonne, then the problem lies in the art world's voluntary surrender of that ultimate authority to a single entity. If it is immaterial to the art world that plaintiff has proof that the sets were built to Calder's specifications, and that Calder approved of their construction, then it will be immaterial to the art world that a court has pronounced the work 'authentic.' Plaintiff's problem can be solved only when buyers are willing to make their decisions based upon the Work and the unassailable facts about its creation, rather than allowing the Foundation's decisions as to what merits inclusion in its catalogue raisonne to dictate what is worthy of purchase."

In sum, the case turns on "whether a duty is owed to plaintiff by ... the defendants that would entitle him to any of the relief [he] seeks — whether based on the Foundation's not-for-profit status, or its explicit or implicit promises or assertions, or its unique position as the sole arbiter of whether work will be included in Calder's catalogue raisonne." The panel "discern[ed] no such duty on defendants' part, and therefore no enforceable right of plaintiff to relief against them."

So far, so good for foundations that authenticate, or which are putting together catalogues raisonne: the quoted language would seem to suggest that they can reject work without worrying about getting sued. But then we come to the panel's discussion of the cause of action for "product disparagement."

The panel begins by noting that "the difficulty of applying the product disparagement cause of action to the assertions made in the present case is that plaintiff here has alleged no affirmative publication of a false statement to third persons." But, it continues, "as a practical matter, the denial of authentication is arguably indistinguishable from a direct assertion of inauthenticity." So failing to authenticate the work, or omitting it from the catalogue, is really just like affirmatively announcing to the world: "This work is not authentic. Stay away from it."

The panel acknowledges that "there is no question that adopting this approach and treating the Foundation's non-response as a publication asserting the Work's inauthenticity to the world at large would constitute a substantial expansion of the law. Yet the fact that non-inclusion in a catalogue raisonne is understood in the art world as a conclusion that the work is not authentic tends to support the application of the cause of action in circumstances such as these" (emphases added).

After taking us that far, though, the panel steps back . . . and dodges the issue: "However, we need not come to a conclusion on that point in this case because the claim must in any event fail on statute of limitations grounds." The statute of limitations for product disparagement is one year. The plaintiff submitted the work to the Foundation in 1997/98; by 2004/05, according to his own complaint, he is losing potential sales because of the Foundation's refusal to authenticate the work. Since he didn't bring suit until 2007, his claim is therefore time-barred.

The other door that was left at least partially open relates to the antitrust claim (under the Donnelly Act, New York's antitrust statute). The panel attempts to distinguish this case from the currently pending lawsuit against the Warhol Foundation, and in so doing provides a blueprint for future plaintiffs to survive a motion to dismiss:

"In holding that the complaint in [the Warhol case] successfully stated a claim for an illegal market restraint and monopolization, the district court cited a number of alleged facts: that the Board made unsolicited suggestions to owners of Warhol works that they should submit their works for authentication; that such policies as the Board has regarding authentication were inconsistently applied; that the Board reversed prior determinations authenticating works; that the Board refused to authenticate works that the Foundation had previously attempted to purchase; and that, unlike other such boards, which are composed of well qualified and well known independent experts, the Warhol Board is made up of individuals who lack experience and who are not independent of the Warhol Foundation. Plaintiff's complaint here contains virtually none of the allegations that made the restraint of trade claim viable in the [Warhol] case" (emphasis added).

I suspect this will (now) be the last complaint in this genre about which that can be said.

"Museums have mountains of stuff in their basements, which just takes up space. They're in limbo"

Interesting article by Daniel Grant in the Maine Antique Digest on museum "swaps."

"Until now, it was against the law for any British national museum to let go of any object in its collection, no matter what the reason"

Now that's taking the idea of the "public trust" seriously. No matter what the reason. What we have here is something else entirely. I believe Hugh Davies has found the technical term.

"Former Guggenheim Bilbao Finance Chief Sentenced for Thefts"

32 months. Earlier post here.

"Scanning alone is not creative enough to warrant its own copyright"

An interview with Peter Hirtle on Cornell University Library's new permissions guidelines for public domain images [via].

"Ideally, this will assist in the deconstruction of art theft as the sexy and elegant criminal enterprise"

A self-guided London art theft walking tour from Mark Durney.

Affirmative Defense for Mountain Murders

So, I'm having a discussion with another attorney today and he was trying to explain how mountain folk feel about murder. As he explained it there is a two part affirmative defense which doesn't exist in other parts of the Commonwealth:

(1) That sonuvab!tch needed to get kilt, and
(2) I was the right person to do it.

We discussed for a while whether this is a perfect defense and came to the conclusion that it is in some cases, but not in others. It seems to depend on how much a sonuvab!cth he is and whether he is either (a) on your land, or (b) with your wife.

Is it Intrinsically Noble to stand between the Reviled and society?

No.

BUT, that doesn't make a defense attorney's job any less noble.

Let's be clear here, we're not talking about people charged with something he didn't do; representing that person is clearly noble. We're not talking about someone overcharged or in danger of being over-punished; representing that person is noble. Nor are we talking about representing the immature, the mentally ill, a person who steals to eat. It is clear that standing between society and these people is intrinsically noble.

What we're talking about here is a Reviled One. Picture the most deservedly hated person you can think of. This is the person we're talking about (someone like the BTK killer, a 9/11 terrorist, the guy who ambushed and killed the four officers yesterday). He is a member of the small group of deservedly reviled and there is nothing intrinsically honorable or or noble in protecting him from society.

And yet, the defense attorney who takes that job and does the absolute best he can in defense of that person is noble.

Why?

(1) Because these cases are the ones which pose the greatest danger to society. If there isn't someone out there fighting tooth and nail for Reviled One these cases will inevitably end up with losses of rights and protections. These are the cases wherein everyone is going to cut corners, ignore rights, and crush protections in order to get to vengeance as quickly as possible. Someone has to stand in front of that bulldozer and frustrate its destruction of the rights and protections of all on the way to destroy the Reviled One.

(2) Because there is no way that society can be just if the Reviled One doesn't have the ability to access, understand, and properly avail himself of all the societal protections. A defendant cannot really represent himself well in court. Even if he is bright, he isn't experienced. Legal research is fairly arcane and even if he has access to a decent law library in the jail (unlikely) he is almost assuredly going to miss important things. He doesn't know written court rules. He definitely doesn't know the unwritten rules of practice, which vary depending on State, region, courthouse, and judge. Without an attorney even the brightest, most capable person is not going to receive a fair trial. By giving Reviled One all the access to laws, rules, procedures, and protections he should have the defense attorney provides an honorable and noble service.

Defense attorneys do serve justice. One could even say that they "seek justice" just as much as any prosecutor does. And I now say it. Defense attorneys seek justice. It's not the straight forward justice that prosecutors enjoy. It's a more esoteric form. Defense attorneys advocate for short term injustice and in the process they assure societal justice in the longer term. That's either seeking justice or having it occur as an unintended, collateral consequence. Forgive me if I'm a bit of an idealist, but I choose to believe that defense attorneys are seeking overall justice, not just providing it by accident.
.

Tell me again about the "public trust"

Artnet reports that a Nov. 24 sale at Christie's "included a group of 15 Isfahan carpets from the collection of the Corcoran Gallery of Art, which received them in a 1925 bequest from Montana senator William Andrews Clark .... No word from the museum at press time regarding the sale, but this particular deaccession seems to have prompted few protests, if any."

Remember: "once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations."

"They have focused much more on the overseas market, and particularly the American market, since about 2000"

The Wall Street Journal: "Iconic cultural institutions like the Tate, the Mariinsky and the Louvre all have set up American or international 'friends groups' in the last decade, in part to cash in on donations coming from the U.S. and to allow American supporters to take advantage of domestic tax write-offs."

Some previous thoughts on these "friends" groups here.

Need a Job? Go See Brian Patton

I was messing around with my LinkedIn page and listening to the UK/Tenn. game when I tripped over the ad for Russell County Commonwealth Attorney's Office hiring a new Assistant Commonwealth Attorney.

Admittedly, I don't know much about Russell County It's SE of the county I work in), but I've met Brian Patton (the Commonwealth Attorney getting sworn in to the left) and he seems to be a good guy. If you like living near the mountains and are looking for an interesting opportunity (and have a Virginia Bar card) you might consider looking into it.

The Blind Side

5 second review: Feel good film, but not deep.

30 second review: Homeless black teenager gets into a private school because he's athletic and is adopted by a rich white family which finds him wandering the street after school.

In depth: This is based upon a true story, but you get the feeling it was loosely based (See RD version & NYTimes). Once upon a time this would have been an after school special and now it's the kind of fare you'd expect to find on Lifetime. The only thing which raises it above this level is the performances of the actors and Sandra Bullock. The story would have been much edgier, and probably better, if it had been presented from the black kid's point of view. Instead it switches back and forth between a 3d party point of view to the white mother's.

The first part of the movie shows how Michael Oher gets into a private, Christian school almost by accident. The only reason he even gets to the school is because he is spending nights at the house of a family whose father promised his mother that he would send her grandson into a Christian school. Oher is just brought along and it's made pretty clear that he gets in, despite not being even slightly academically qualified, because he is extremely large and athletically gifted.

Then we are shown how Oher is living on the street, even as he goes to this rich, private school. It's not exactly subtle. We see him gathering popcorn after a basketball game to eat and washing his single extra t-shirt in a 24 hour laundromat (and sneaking his shirt in with someone else's dryer). We also see that one teacher taking interest in him and discovering that he's not dumb, he's just never been taught.

Next we see the mother of the Tuohy family taking him in and the family, pushed by mama, rallying around him and pushing him forward so that he can play football and develop learning skills in order to raise his grades and allow him to go to college on a football scholarship. There are scenes in here which deal with issues such as trusting someone from the poor side of town to live in your house, worrying about that the relationship between Michael and Collins (the Tuohy's daughter of approximately the same age), and Mrs. Tuohy dealing with friends who can't understand how she can have a black kid living at her house. However, all of these are fairly short; there's no in depth treatment of any of them.

Finally, there's a conflict at the end when the NCAA basically accuses the Tuohy's of taking Michael in just so they could channel him toward their beloved alma mater Ole Miss. There's no doubt that they pushed him in that direction, and it starts some trouble and soul searching. Nevertheless, in the end everybody is happy and all is happy as we are treated to the touching scene of the Tuohy's dropping Michael Oher off at Ole Miss.

The movie glosses over some things (such as "the great Mormon grade grab" - blame the NYT for that characterization, not me), and switches others around (Mrs. Tuohy didn't come out of the stands to help Michael learn to play, she came out to help the coaches when Michael wouldn't let them look at an injury), but it generally seems to be true to what Michael Lewis wrote in his article and book about Oher. There are two things which stand out as different. First, Mr. Tuohy is downplayed in the movie. He plays a role, but it seems less vital than that reflected in the writing. Second, Michael Oher is basically treated as though he is dumb (cannot speak). The articles seem to indicate that he was reluctant to speak about things that were embarrassing or painful, but that he was talkative at other times - particularly in his senior year. I don't know who chose to make Michael Oher have the personality of a quiet 2 yer old, but I suspect he is doing Oher a disservice.

I'm not sure that this movie makes it onto the screen if it had been about a rich white family taking in a homeless white kid from the trailer park or an affluent black family taking in a black kid and channeling him to Morehouse. Let's face it, we all know the hook is that this is a "we can all get along", kumbaya film. As such it does a good job. It could have avoided a lot of the criticisms and complaints which will be made abut it if it had been about people all with the same skin color, but then it wouldn't be true. (or at least as true as Hollywood ever gets).

Best line: Who knew we'd have a black son before we had a Democrat for a friend?

"To think that a majority of people voted to part with a Tiffany window is a miracle"

The Boston Globe had a story yesterday entitled "Putting its mission before its treasure." It's about a financially-struggling Vermont church that has decided to sell its "prized asset," a Tiffany window depicting St. John the Divine:

"The church considered selling its pews; it had an appraiser value its bell. It also has three other stained-glass windows that church records say are Tiffany designs but which are not signed and are difficult to authenticate. The St. John window with its Tiffany Studios insignia was by far the most valuable and seemed the logical choice."

My question to the Deaccession Police is: is this okay? Isn't the window held in the "public trust"? What about the pews and the bell? The church receives the same tax benefits that, according to the anti-deaccessionists, cause works owned by museums to be held in the public trust (and therefore prevent their sale). Isn't this going to cause other churches across the country to start selling off their stained-glass windows just to feed the homeless?

What gives the First Baptist Church of Brattleboro the right to sell off assets in order to serve its larger mission but prevents the National Academy of Art, or Brandeis University, from doing the same thing?

How exactly do works of art come to be held in the public trust? What is the mechanism? If it's not the tax benefits, what is it?

"Couple charged with trying to sell fake Warhols"

Story here.

Greg Allen says this is "officially the best Fake Warhol In Utah story since the artist sent an impostor to deliver a lecture at the University of Utah in 1968."

Christie's Suit

Courthouse News Service: "An Indian art dealer says it paid Christie's more than $800,000 for 29 pieces of art, which the auction house failed to deliver and now is threatening to sell to someone else."

More from The Art Market Monitor, including a statement from Christie's ("Christie’s finds this complaint completely meritless. We have been seeking to recover a significant debt from an Osian-related party for more than one year") and a link to the complaint.

"Charges Dropped Against Nude Met Model"

Details here. Background here.

"I’m not sure that many people realize the collection will be reinstalled in galleries of the same size, the same shape, the same relationship ...

... and in exactly the same way it is hung in Merion." That's Barnes Foundation executive director and president Derek Gilman, in this Art & Auction piece by Judd Tully.

No Longer Looking Around

Richard Lacayo, on of my favorite art bloggers, is calling it quits.

Art and Money

A new paper from Goetzmann, Renneboog & Spaenjers. From the abstract:



"This paper investigates the impact of equity markets and top incomes on art prices. ... [W]e demonstrate that ... equity market returns have a significant impact on the price level in the art market. Over a shorter time frame, we also find empirical evidence that an increase in income inequality may lead to higher prices for art .... Finally, the results of Johansen cointegration tests strongly suggest the existence of a long-term relation between top incomes and art prices."

Anatomy of a Righteous Shoot

I'm visiting with my folks in Cincinnati when the morning programs are interrupted and the chief of police and mayor come on to do a press release about a shooting which had occurred the day before. This guy has misdemeanor warrants and decided that he was going to grab his pistol, run and shoot it out.

This is an abridged version (after an advertisement).

One interesting thing is that immediately after the shooting the officer in the camera puts his pistol on the ground. I'm not sure why he did that. He did not know he was on camera (the second video is from the store, not a police vehicle).

Schrock and Roll (UPDATED)

Clarida and Bernstein on the recent Schrock decision (mentioned earlier here):

"[T]he cases appeared to diverge as to three fundamental questions: (1) Is a photograph of a copyrighted work a derivative work at all? (the 'Definition Question'); (2) Must such a derivative work exhibit a higher level of originality in order to qualify for copyright protection? (the 'Originality Question'); (3) Must the creator of such a derivative work obtain separate specific permission to register his or her copyright, over and above the permission required to create the derivative work? (the 'Permission Question').

"The Seventh Circuit explicitly declines to answer the first of these questions in its Schrock reversal, but by clearly answering 'no' to the other two, the new ruling greatly reduces the significance of the Definition Question. If a derivative work need not meet a higher originality threshold and need not obtain separate permission to register, it really should not matter very much, in most cases, whether the photo at issue is deemed a derivative work of its copyrighted subject or not."

UPDATE: More from the folks at the Harvard Journal of Law & Technology.

Lawyers Needed in London (Kentucky that is)

As part of my vacation I've been running around getting pictures of some of the local courthouses in Kentucky. Most of them I got on my way North (before it started raining). However, I was driving back to Virginia this morning I stopped in London, Kentucky to get gas. I figured the local courthouse wasn't too far away and thought I could spare a half hour or so to go grab some pictures.

I asked the lady at the counter of the stop and steal where the local courthouse was and she called the delivery guy over to give me directions. After I get directions they're both standing there pointedly not asking me why I need to know. The conversation then proceeded like this:

Me: Don't worry. I'm not trouble. I'm an attorney from Virginia and I'm taking pictures of courthouses while I'm on vacation.

Lady: You know, we need more good lawyers here in London.

Me: I know Virginia law. Kentucky law, not so much.

Lady: You need to learn some and move down here.

Unfortunately, I think I'm going to have to disappoint the lady. No reciprocity and an abiding desire not to take another Bar examine ever again are almost insurmountable obstacles.

"Visual artists are conflicted as to where they stand in relation to copyright laws"

Sergio Muñoz Sarmiento: What Do Artists Want?

"An amazing story on many levels"

Judith Dobrzynski on the most stolen work of art in recorded history.

Vistaprint

I'm an avid user of Vistaprint. I used it to get free business cards in law school. You can read that post here. Now I use it to make address labels, invitations, calendars, and even holiday cards. Right now you can Save 25-50% off on custom printed products at VistaPrint.

It's an early Christmas gift! Enjoy :) Maybe you can design your address labels or holiday cards when you're not studying or looking for a job... better yet, design awesome and professional address labels to put on all those job applications!

"The jury ... took less than 40 minutes, including lunch"

The Houston Chronicle: "A jury Monday disappointed the daughter of philanthropist and oilman Alfred Glassell Jr. by ruling that he was neither incapacitated nor unduly influenced when he gave the bulk of his half-billion dollar estate to charity [including the Museum of Fine Arts, Houston] and not to her."

Earlier post here.

"It seems likely most … consignors whose possessions were sold but who have yet to receive payment … are going to come out ... empty-handed"

The Toronto Globe and Mail on the bankruptcy of Toronto-based Ritchies Auctioneers.

Another Museum Embezzlement

The Delaware News Journal: "A former Winterthur Museum employee voluntarily turned himself into Delaware State Police ... after a theft investigation revealed he had spent more than $100,000 of the museum's money."

"What makes this theft any different from a typical 'smash and grab' job?"

Art Theft Central's Mark Durney has more on last week's Munch theft in Oslo.

Ordinary Injustice

Book rating scale:

5: Touched by God - a work which makes Shakespeare look infantile
4: Amazing - Instantly began rereading it and quoting it to friends
3: Worth Every Penny - a solid, interesting read, inspiring some thought and discussion with people who share similar interests
2: I Paid For It So I Finished Reading It - Some interesting parts but if I lose the book I'm not buying another copy
1: Couldn't Force My Way Thru and Burnt the Book in order to send it to the Hell it deserves

I rate this book a 3. It's worth a read for those involved in the criminal justice system.

This review of Ordinary Injustice is coming later than most. I think this is partly due to being asked to review it later than others. However, a greater part is my reaction to the book made it difficult for me to write the review.

The theme of the book is that injustice becomes part of the system not so much from a desire to do evil, but from improper acts by various actors which are not checked by other actors in the system. It's a theme which I agree with. She implies that it is a pervasive state throughout criminal justice systems in the US. This I also agree with. Every jurisdiction has something which could be fixed. By the examples she chooses, she further implies that the flaws are universally cataclysmic. This I don't agree with. It's been my experience that seriously flawed systems are usually endemic, not pandemic. As we are people, not God, none of us has ever succeeded in making a perfect justice system, but there are a few that come close, a great number in the gray area and those few which are so badly out of kilter that they stick out like sore thumbs. To be fair, there may be more terribly bad systems than amazingly good ones; still, the vast majority are going to be in the gray area where the flaws aren't shockingly obvious. In fact, if she wanted to make a strong case this is where it should have been made.

In the gray is where "ordinary injustice" would occur. An examination of similar jurisdictions wherein one consistently has sentences of three months more than the other for the same crimes would have shed more light on this. Is the prosecution in one jurisdiction pushing for higher sentences? Is the prosecution in another not pushing at all? Has the judge succumbed to political pressure from local merchants to impose higher sentences in theft cases? Has the judge succumbed to pressure not to put too many people in jail because the local jail only has 20 beds and the locality will have to pay to incarcerate any more in another locality's jail? Are the local defense attorneys just taking part in an assembly line so that they can get paid? Are the young turks over at the PD office putting principle over their clients' interests so that they end up getting larger sentences than they should? Various factors can cause a local jurisdiction to develop in a certain manner until "that's the way we've always done it here" becomes the reason things are still done that way. Of course, the problem with pursuing this is that it would take years of sociological research, tons of data, be very hard to pin down (because of so many possible causes), and - in the end - probably be about as exciting to read about as a discussion on variations in the mass production of bread.

Thus, we get Amy Bach's book, which is largely a discussion of cases of extraordinary injustices. She gives us four different examples from around the country: badly flawed indigent defense in a Georgia county; a judge removed from office in New York; a county in Mississippi wherein she believes not enough people are being prosecuted; and a Chicago case which she believes shows over exuberant prosecution. The Georgia and Mississippi cases are the strongest in her book, but they are also clearly aberrations. They aren't "ordinary." The Georgia case is based upon the lowest-bidder contract defender system which is probably the absolutely worst way to set up an indigent defense system. She makes the defender the focal point of her examination, making him the bad guy of the piece. The system was an assembly line wreck with plenty of blame to go around, primarily to the county leaders who didn't hire an adequate number of defenders or pay the defender enough to have sufficient support staff, but the defender's the bad guy. As you can tell, I wasn't too impressed with this. I also found Ms. Bach's astonishment that this attorney, once transplanted into a well-run office used the resources he was given and did a good job, a little disturbing. He knew what a boon the resources he had gained were and finally having them he used them.

Her strongest case, and most extraordinary, was the Mississippi non-prosecutions. I must admit to some surprise that this was included. It's not a usual part of the meta-narrative in these kinds of books. About the only thing more surprising would have been a section on over aggressive defense attorneys causing their clients to spend more time incarcerated because they were too caught up in the fight. In this case, the story is that a large number of charges aren't even being taken to the grand jury and therefore aren't being prosecuted. The prosecutor gives some reasons for this and his investigator seems to bear a good deal of the fault, but it's obvious that something is very wrong in that county. However, it's nearly impossible to shoehorn this into the "ordinary" category. Sure, there are jurisdictions where the LEO's grumble a little and there are always citizens who are upset because a prosecutor's office declines to prosecute certain cases, but it's not often the norm (if for no other reason than that most places could vote the bum out).

We also get a story in which a New York judges is removed from his bench because he failed to tell some defendant's of their right to an attorney and he placed people in a position of having to plead guilty or being held with a bond too high to make until their trial date. Now, it's always hard to get a good picture of what's going on with a judge because few people who practice law in his courtroom are going to say things publicly which might get them in trouble with the judge if he's not dethroned. Still, the case as presented wasn't different than what might be seen in any court. A defendant who "doesn't remember" anything, including his lengthy record, at arraignment gets a high bond. People choose whether to plead to time served (or less) in order to get out of jail prior to the date that all the witnesses could be brought to court for the trial. The one thing that was happening was that the judge was not giving everyone an attorney. I don't recall a statistic telling us the number of these cases over a certain period of time, but even in one case it would be clearly wrong. Still, with the case as presented (who knows what was actually going on and being said behind the scene), it looked like something where the judge should have gotten a warning and some training - probably even had another judge observe his court for a period of time - not something where the judge should have been removed. I think the problem here was that the demanded an open hearing and that he was being too honest about the way things actually work; as one of the people interviewed pointed out, this appears to be the reason he was actually removed. This was Ms. Bach's strongest case for "ordinary" injustice. A judge, apparently with a pro-defense reputation, sitting in his courtroom and on occasion sacrificing justice for efficiency.

The last case, the Chicago murder. I shan't go too far into this one except to say that, as I read through it, I realized that it was all spin. It was obviously a hard fought case and her assertion that it shows overzealous prosecution could have been spun exactly 180 degrees and argued that this is a case which shows how lengthy, almost never ending appellate processes can lead to muddling of the evidence enough to allow a man found guilty to go free without an actual showing of non-guilt. It can be argued either way and doesn't help her meta-argument.

In the end, I think Ms. Bach has made a good try in her first book. I think she would have been better served to have concentrated on one of the stories and written an entire book on it. Each story cried out for further exploration rather than being crammed into the argument of this book. As well, I was bothered by the amount of credence she seemed to give people whose self interest was to make the primary person in each section look bad. Maybe this is just the cynicism hammered into me after 10 years of practicing criminal law. In the end it's an average book which those interested in this area should find interesting, even if they disagree with it.

"The moralizing is a bit much"

Jerry Saltz on the New Museum in this week's New York magazine.

More from Saltz here.

Related post here.

A Couple of Deaccessioning Notes

Via The Deaccessioning Blog. First, it seems Assemblyman Brodsky (of the Brodsky Bill) recently came and talked to the Art Law Society at Cardozo Law School. You can read an account of the visit here. The Deaccessioning Blog's take: "Reading Brodsky's thoughts gives one hope that he's finally realizing the economic severity faced by museums and art institutions, and if the Brodsky bill restricts the use of funds acquired through deaccessioning to only the purchase of new works, museums will face dire financial situations which will force them to lay-off staff in droves, not to mention lower the academic and aesthetic design and implementation of their planned exhibitions."

Second, there is this quote, from a Time magazine report on some deaccessioning at University College London: "To be sure, not everything in a museum's collection is worth keeping, let alone putting on display."

More Munch Thievery

From the AP: "Thieves stole a valuable artwork by Edvard Munch from an Oslo art dealer in the latest of a string of art heists targeting work by the famous Norwegian expressionist, police said Friday. One or more thieves stole [the lithograph] from Nyborgs Kunst in downtown Oslo after smashing one of the dealership's windows with a rock."

"For the latecomers, an outline of the high points thus far"

Artnet News summarizes the New Museum "brouhaha" to date.

Against the "purity police" (UPDATED)

Terrific post by Regina Hackett on the New Museum controversy:

"Purity police chief Tyler Green would prefer that we not see this show. I don't know Dakis Joannou and am not likely to be invited to his house. I do know about his collection and am grateful it will be on view to the public.

"About those ethical problems: I have them with museums featuring trustee collections only when the collections are mediocre. ... Joannou's collection is remarkable. I want to see it and don't care whose board he's on.

"The hip bone's connected to the thigh bone. O, the horror. Trustees know collectors who know artists who know dealers who know museum curators. ...

"There is no rule against museums devoting shows to the work of a single collector. If there were, that rule would be made to be broken. Yes, the rich and powerful are involved in museums. Those for whom this information is a shock and an outrage are too pure (and rigid) to live in the world."

And more from The Art Market Monitor here.

UPDATE: Paddy Johnson has "the sinking feeling this story is turning into a New York Museum Director witch hunt": "I can’t help but feel that the ultimate goal of constructive criticism is getting lost when there are bloggers seeking out scandal we’re not even sure exists." And in the comments, Peter Zimmerman adds: "I don’t see the weight of the ethical charge that Tyler Green is championing. I understand that there are complications with the insider-ness– and yes, that really should have been and should be addressed. Even so, it’s as if Green is acting like a warrior on a vendetta against the NY institution, and I’m not sure where it’s coming from. I just hope that the sensationalism of some of the writing about this subject tones down. And yeah, I’m excited for the show. I’ve wanted to see this collection for years, so in terms of serving a public, NuMu got that one right!"