"I have to be honest—I don’t like the sound of this"

Paddy Johnson wonders about the strength of the Rose lawsuit.

Balancing Act

Eric Felten writes in the Wall Street Journal on the National Portrait Gallery-Wikipedia dispute:

"Copyright law exists for a purpose: to make creativity pay. Making accurate photographic copies of paintings is no doubt valuable and involves painstaking work. But it isn’t—and isn’t meant to be—creative. With all the digital assaults on the old copyright verities, the champions of intellectual property can’t afford to waste their energies trying to monopolize images that already properly belong to us all."

Forgery Suit

Josh Baer: "ACA Galleries Inc have sued Joseph Kinney alleging that he sold them a Milton Avery painting 'Summer Table Gloucester' for $200,000 in 2007 that was a forgery. They assert that Kinney actually bought the work for $65,000 from Angela Hamblin who had been convicted of other art forgeries." Related post, from 2007, here.

Another Bull Suit

Arturo Di Modica, who created the famous "Charging Bull" sculpture near Wall Street, has sued Random House and the authors of a new book about the collapse of Lehman Brothers for using the sculpture on the book's cover without permission. Story here. Previous suit mentioned here.

Leibovitz Suit (UPDATED 2X)

Art Capital Group is suing photographer Annie Leibovitz. Story in the NYT City Room blog here. The Art Market Monitor has more. Art Capital's loans to Leibovitz were mentioned in a front-page NYT story on art-based lending back in February.

UPDATE: Much more from Felix Salmon.

UPDATE 2: Still more from the Art Market Monitor: "It would appear that both sides in this battle have made a bad deal."

Clearwater Cuts Bait

The city of Clearwater, Florida has agreed to pay $55,000 to settle the fish mural first amendment case mentioned earlier here. The bait shop owner gets to keep his mural up; the money goes to the ACLU.

A Clean Desk is a Sign of a Sick Mind

My desk at the end of the day.
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More on the Rose Complaint

I've now had a chance to read the Rose complaint. It's no easy task. It's 12 pages long, but then they attach about 140 pages of various exhibits -- and they just kind of dump it all there, with no real effort to tie the documents back to the specific allegations in the complaint. (These two blog posts by Felix Salmon are now part of the official record in the case, Exhibits F and G.) I guess the clearest statement of their claim is that "Brandeis has reneged on its duty to keep the Rose open as a permanent, public museum" (paragraph 17c). "Brandeis's actions to close the Rose and prepare its collection for sale for cash for general university operations contradict the charitable intentions of ... the plaintiff donors and other donors, [and] abrogate Brandeis's promise that the Rose would be maintained in perpetuity as a [m]useum ..." (paragraph 24).

Again, I hate to rain on the parade, but the museum is not closing. As the Future of the Rose Committee put it in their interim report in May: "Brandeis is not closing the Rose and selling all the art work, though we must say in the same breath: it remains a possibility that some will be sold." The Committee's charge is to "recommend ways for the Rose to continue to play a vital role in the cultural and educational mission of the University," and they are expressly committed to the proposition "that the University must do all it can to insure that the Rose remains a vibrant and distinguished part of the University, and it must in the coming period reaffirm in very concrete ways its commitment to the Arts. To that end, we are considering how the mission of the museum can be enhanced and maximized."

The Committee is still in the midst of that process. So what is it that these plaintiffs are seeking to "stop"?

Another problem with the suit is the usual one of standing. We saw this most recently in the Tennessee Court of Appeals decision in the Fisk-O'Keeffe case, where the O'Keeffe Museum was tossed from the proceedings. It was also the basis for the dismissal of the most recent Barnes Foundation lawsuit. In general, the enforcement of gifts to charities lies with attorney general of the state in which the charity is located. "Based on the traditional rule that enforcement of charitable trusts is reserved to the attorney general, donors and heirs of donors usually are denied standing to sue for the enforcement of such trusts. Having made a gift for the benefit of the public, a donor is viewed as having no stronger claim to that gift than any other member of the public" (Marie Malaro, A Legal Primer on Managing Museum Collections, p. 26). The complaint in this case says that "in April, 2009, the Attorney General of the Commonwealth met separately with Brandeis, and certain overseers," and the Attorney General is actually named as a defendant in the suit.

I'm not familiar with the relevant law in Massachusetts; maybe thay have more relaxed standing requirements. But this is certainly going to be another problem for the plaintiffs here, and perhaps a fatal one.

Brandeis's lawyer -- Thomas Reilly, a former Massachusetts attorney general -- calls the lawsuit "frivolous" and says:

"The university has a responsibility to provide the very best education and faculty to fulfill its higher educational agenda. Apparently, these three overseers are oblivious to the Brandeis mission."

"Another day, another deaccession controversy"

Daniel Grant has the latest in the Maine Antique Digest. It involves the St. Augustine Historical Society, which apparently "maintains a collection of documents, maps, photographs, and other printed material about the history of St. Augustine (the oldest city in the U.S.) and early Florida." They sold a bunch of sketches by artist Martin Johnson Heade, "who is often associated with the Hudson River school." As a historical (rather than an art) museum, they're not bound by the AAMD/AAM anti-deaccessioning rules, but there are calls for implementation of the Ellis Rule nonetheless ("Another local museum director ... noted that he ...would have been less unhappy had the historical society sold the collection in its entirety 'to another institution or at a public venue'").

What Really Happens after Defendants are Diverted from Jail

Rose Suit (UPDATED)

The NYT's Randy Kennedy reports that "three overseers of the Rose Art Museum filed suit Monday in state court in Massachusetts, seeking to halt Brandeis University's plans to close the museum and clear the way to sell some of its work."

I haven't read the complaint yet (you can do so here), but keep in mind that the latest version of the plan is not to "close" the Rose but instead to turn it into "a teaching and exhibition gallery." A faculty-student-trustee committee has been formed to figure out how that might best be accomplished. In fact, this weekend brought reports that the museum had "reopened" with an exhibition featuring the paintings of Alfred Jensen. So, right off the bat, a lawsuit seeking to prevent Brandeis from closing the museum would seem to face the problem that it isn't closing the museum.

UPDATE: Paddy Johnson calls me "famously deaccession-friendly" and says I have "predictably" taken the position that, since the university is not closing the museum, "the suit has no merit." I did not say the suit has no merit. Indeed, I said I hadn't even read the complaint (still haven't). All I did was pass along the observation that, for a suit that (as Paddy characterizes it) aims "to halt closure of Brandeis University’s museum," it's something of a problem that there is no plan to close the museum.

"Knowledge, Labor, Property"

Sergio Muñoz Sarmiento gets a few things off his chest regarding copyright ("It's time that U.S. courts put an end to the belief by many that it's ok to make a bountiful living off the work of someone else") and deaccessioning ("While museums continue to suffer closings, layoffs and cutbacks, the College Art Association initiates an anti-deaccessioning petition. This position is absurd at best and irresponsible at worst").

Come On In

I missed this before the weekend, but apparently the court granted Mannie Garcia's motion to intervene in the Shepard Fairey-AP lawsuit.

Mitigation, Jury Sentencing, & Judicial Pronouncement

Under Virginia law, a defendant who has been found guilty of an offense by a jury is sentenced by a jury. During this hearing "the [prosecutor] may present any victim impact testimony pursuant to § 19.2-295.3 and shall present the defendant's prior criminal history" and "the defendant may introduce relevant, admissible evidence related to punishment." Va Code 19.2-295.1 & Virginia Supreme Court Rule 3A:17.1. In Shifflet v. Commonwealth, the Virginia Supreme Court defined "relevant" evidence as "[e]vidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of the noncapital crime"; in doing so it rejected a "life story" and "testimony about [defendant's] employment, [defendant's] family responsibilities." Thus, the evidence which either side can introduce during a jury sentencing hearing is clearly defined. The reality is that in a great number of cases the only evidence introduced is the defendant's prior record and then both sides argue their case to the jury before it retires to decide.

Prior to the General Assembly adopting the bifurcated jury trial, all mitigation was the sole province of the judiciary. The courts walked away from 19.2-295.1's depiction of the jury's role as "ascertain[ing] punishment" or "agree[ing] on a punishment", instead declaring that:

If the jury finds that he is guilty, it then "ascertains" or "fixes" the maximum punishment in accordance with contemporary community values and within the limits established by law.
. . .
By vesting the trial court with discretionary authority to suspend or modify the sentence imposed by the jury, the legislature intended to leave the consideration of mitigating circumstances to the court.

Duncan v. Commonwealth, 1986, Va. App., No. 0274-85.

This interpretation of the law was immediately problematic in that there is absolutely nothing in the statute that states the jury is setting a "maximum punishment." Thus, Duncan does not follow the statute and invites us to lie every time we instruct a jury that they are going to determine the punishment.¹ Duncan's departure from the actual language of the statute is necessary because in all felonies class 4 and above there are sentences which a jury must impose that a judge could suspend (and usually would in part). This raises a constitutional denial of jury trial issue which had to be addressed. However, faced with the option of giving jurors the ability to impose the same sentencing incarceration ranges² as judges or develop a byzantine dual sentencing system, Virginia chose the latter.

Of course, in creating the bifurcated trial and allowing mitigating during the sentencing phase the General Assembly evinced an intent not to make the judge the sole mitigator. The question becomes exactly what role the jury's mitigation decision should play.

There is no provision under Virginia law for a judge to have witnesses and evidence introduced at a full-blown sentencing hearing and the statutory provision of a jury sentencing hearing and the basic canon of statutory interpretation expresio unius est exclusio alterus militates against one. In fact, under Virginia law the judge is only authorized to do one thing.

After a finding of guilty, sentence shall be pronounced, or decision to suspend the imposition of sentence shall be announced, without unreasonable delay.

However, he is also required to receive a presentence report before imposing the sentence. This report is to contain no less than "the defendant's criminal history, any history of substance abuse, any physical or health-related problems as may be pertinent, and any applicable sentencing guideline worksheets". More can be included, but the statute isn't clear as to what else is required. The judge shall "direct a probation officer of such court to thoroughly investigate and report upon the history of the accused." This has developed into a standardized format which has academic, job, military service, family histories, &cetera along with the minimum information required. These histories are a list of schools, list of jobs, notification of time spent in the military, and a list of family members. In addition to all this, a Victim Impact Statement is also required.

Via the presentence report the defendant is entitled to a sort of rump-sentencing hearing.

The probation officer shall be available to testify from this report in open court in the presence of the accused, who shall . . . be given the right to cross-examine the investigating officer as to any matter contained therein and to present any additional facts bearing upon the matter.

So, if the report states that the defendant has two children he could cross the probation officer about that and bring the mother of child three in to testify as to the child's existence, age, and relationship to the defendant.

Of note are three things. First, there is no provision for the prosecutor to dispute the contents of the presentence report and, except perhaps in cross examination of a witness the defense called, no role for the prosecutor in this hearing. Second, the defendant is not allowed impact witnesses. No crying fiance on the stand telling the judge how the defendant must be at home to support their three children. No mother telling the judge how this particular time in jail awaiting trial has finally cured the defendant of his percocet addiction. Third, any attorney arguments allowed would be limited to the content of the presentence report.

Once any conflicts in the presentence report are resolved, the judge is required to consider mitigation beyond what the jury has already decided.

Failure to consider whether a jury sentence should be mitigated because of a belief that the jury sentence is inviolable is an abuse of discretion.

Bruce v. Commonwealth, 1990, Va. App., No. 0504-88-2

Finally, "[b]efore pronouncing the sentence, the court shall inquire of the accused if he desires to make a statement and if he desires to advance any reason why judgment should not be pronounced against him." After any such statement (assuming he's not persuaded), the judge pronounces the sentence.

In conclusion, only a jury is allowed a sentencing hearing, with witnesses, evidence, and argument by opposing counsel. However, the evidence allowed is limited in scope and, despite the actual wording of the statute, is not the actual punishment of the defendant. On the other hand, the judge is given far more to consider in mitigation through the presentence report. Virginia law does not provide for a separate sentencing hearing in front of the judge although it does allow, at the defendant's behest, a hearing as to the facts in the presentence report. Once this is done the judge is required to consider further mitigation of the jury's sentence, give the defendant a chance to speak, and pronounce the defendant's actual sentence.



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¹ A truthful instruction would advise the jury that they were setting a maximum possible penalty which the judge could not exceed when the defendant was sentenced.

² The General Assembly could easily pass a statute stating that jurors shall not be informed of any minimum sentence except "mandatory minimum sentences" (which even judges cannot suspend) and that any time a jury sentences below the minimum time required by statute the remaining time shall be imposed solely as suspended time by the judge.

" . . . and some are even closing"

The Deaccessioning Blog points to a USA Today story under the headline "Museums' funding sources going bone dry" and quips: "Continue those anti-deaccessioning petitions!"

As I've said before, if only these museums had a source of revenue to tap into when times got tough.

Speaking of the Catcher in the Rye decision ...

The New York Times reports that the plaintiff has appealed Judge Batts's no-fair-use decision. You can read the appellate brief here. At the Wall Street Journal Law Blog, Ashby Jones says "it’s pretty clear that [the plaintiff's] lawyers understand that the case will likely turn on [the] 'transformative' issue": the brief "focuses to a large degree on this 'transformation' idea, largely by highlighting the degree to which [the book] allegedly comments on Salinger’s relationship to the novel and the Holden Caulfield character itself."

The core of the argument seems to be that, in his book, "Colting takes ... the seemingly authentic and fiercely independent Holden, and 'adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message' to create a new work of fiction -- a new story that is entirely 'transformative'" (p. 41, quoting the Supreme Court's decision in Campbell v. Acuff-Rose Music).

Jones predicts "a lively Second Circuit hearing, likely to take place later this summer or fall."

"There's reason to believe here that not just any old photo would have sufficed" (UPDATED 2X)

Southwestern Law School's Dave Fagundes has an interesting post up at Prawfsblawg that goes to the Gaylord discussion just below, but is really more about the Fairey-AP dispute, so I thought I'd give it its own post. It's about the fourth fair use factor -- "the effect of the use upon the potential market for or value of the copyrighted work." In the post I discuss below, Peter Friedman says "it's laughable to suggest the stamp adversely affects the value of the sculpture." But Fagundes has I think a more nuanced discussion of the issue:

"The right way to frame the question, I think, is whether an artist who creatively appropriates a ... photograph needs to pay for a license to do so. This strikes me as a hard question. [Doug] Lichtman’s take is that there was a well-functioning market here, so that all Fairey would have had to do is ask for permission to use the photo (and perhaps pay a small fee) in order to avoid liability concerns. And Garcia has said that he would have given Fairey permission to use the photo if Fairey had simply asked him about it beforehand .... If that were true, it would be a strong argument against fair use ...."

He goes on to discuss the question whether the fourth factor "should include the enormous positive impact that Fairey’s taking has had on Garcia’s career (his photography is much more in demand now that he is associated with the iconic Obama poster)." The AP's lawyer calls this the "I did you a favor by ripping off your work" claim, but Fagundes finds it convincing: "at the very least, it seems to me that this argument should be part of the factor-four discussion rather than dismissed as readily as it is by most courts and commentators." In the end, he concludes that "the fair use issue is a truly difficult one."

Marquette's Bruce Boyden, who's been doing his own muti-part series on the case, turns up in the comments to say, in response to Fagundes's point that it may in fact be true that "Garcia is much better off thanks to Fairey’s unauthorized use than he would have been in a world where that use never happened":

"That's one possible world; but here's another one: The world in which everything is the same as it is now, except that Fairey paid Garcia a license fee before making the poster. Garcia is clearly worse off in the actual world than he is in that possible world, to the tune of X hundred dollars (whatever the license fee would have been), and his right to make the decision. ... You could argue that if Garcia had sought a fee, Fairey would have gone elsewhere; but that runs into the point that ... if any old photo of Obama would have done, Fairey could have gotten one for free from the campaign. There's reason to believe here that not just any old photo would have sufficed."

Finally, I refer again to the recent Catcher in the Rye decision, where Judge Batts (who also has the Cariou-Prince case) said that the fourth factor "requires the courts to 'consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market for the original.'" The defendants' argued that that there was "no evidence that 60 Years will undermine the market for Catcher or any authorized sequel," but Judge Batts countered that "it is quite likely that the publishing of 60 Years and similar widespread works could substantially harm the market for a Catcher sequel or other derivative works."

UPDATE: This update is relevant here too.

UPDATE 2: Doug Lichtman adds a comment (just below Boyden's): "Imagine, for instance, that you made a movie based on my book. Would your movie likely increase sales of my book, and its sequel? Sure. Is that a windfall that indicates I should just pipe down and be grateful for your appropriation of my work? Hardly."

Is Pretty Convincing Convincing Enough? (UPDATED)

University of Detroit Mercy Law School Professor Peter Friedman says my post on the Gaylord stamp decision is "ridiculous" and (possibly) "disingenuous." I wrote that the case is a good example of "how you can make the traditional four-factor fair use analysis do whatever you want it to do," and I cited Judge Kozinski's comment that "the analysis can always go in either direction."

Nonsense, says Friedman. This is an "easy case." "The court's conclusion that the stamp significantly reworks the sculpture is pretty convincing." Why? Because (1) when you look at the stamp, "you can't tell you're looking at figures that originate in a sculpture" (you can't? what do you think you're looking at then?) and (2) "other than the figures themselves the entire image set forth on the stamp is not present in the sculpture" (I'm not sure what that means, exactly).

But it certainly doesn't undermine my point -- let alone show that it's "ridiculous" -- to say that the court's conclusion was "pretty convincing." My point is just that it's easy to imagine another judge making a "pretty convincing" case in the other direction. Would it not also be "pretty convincing" to say what we really have here is a photograph of a sculpture, only in the snow, and that simply isn't "transformative" enough to be a fair use? Why did the author of the Catcher in the Rye sequel recently lose? Was there not a "pretty convincing" case to be made that he "significantly reworked" the original? Did his book not have (to use the Gaylord court's phrase) a "different expressive character" than Salinger's? Did it not have a "new and different character"? Was that an "easy case" too?

And what about Shepard Fairey's case against the AP?

Or Patrick Cariou's suit against Richard Prince?

Does anybody really have any idea how those cases will turn out?

Or are they "easy" too?

In fact, not everybody agrees that the court got it right in the Gaylord case. Here is IP lawyer Pamela Chestek:

"In my book what [the court] describes is two derivative works, not a transformative use. I'm in the school that the 'transformation' in the fair use analysis refers to whether the second work has a different use and purpose than the original, not how far removed the second is from the original (which instead goes to substantial similarity)."

That's actually very close to what Gaylord argued in one of his post-trial briefs:

"The adaptation of 'Harry Potter and The Sorcerer's Stone' from a book into a movie effected a dramatic 'transformation' of the work from literary to motion picture . . . . But that is not what 'transformative' means in the context of 'fair use' . . . . Thus, the Government erroneously equates 'transformative' to 'changed' or 'different' and thereby confuses the fair use doctrine with the 'derivative works' principle. . . . [The photographer's] contributions are 'additive,' not transformative, and the Government's transformative argument is a 'derivative works' argument in disguise . . . ."

Friedman also argues that "if you want to look at the other [fair use] factors, those too are pretty convincingly [again with the 'pretty convincingly' - DZ] on the side of fair use." He mentions (1) that "the sculpture is public art and therefore constantly viewed for free," (2) it was "done for the government," which, "last [Friedman] heard, is one of the people, by the people, and for the people," and (3) because the stamp "is a government product," it's a "non-profit product." The first two seem completely irrelevant to me, and, as for the third, the Postal Service sold $29 million worth of these stamps. That seems pretty commercial to me.

I'm not convinced (or even pretty convinced) this is as easy a case as Friedman seems to think it is.

UPDATE: Friedman responds (at length) here. I still don't see anything in it that remotely suggests that it's "ridiculous" to think that, in any interesting fair use case, there's no way to predict with any degree of confidence which way a court will rule. He says he "wouldn't be shocked" if the Catcher in the Rye case is reversed on appeal. But that's just my point. I wouldn't be shocked if it's reversed either, but I also wouldn't be shocked if it's upheld. I wouldn't be shocked if the Gaylord decision is reversed. I wouldn't be shocked if Richard Prince wins. I wouldn't be shocked if he loses. I wouldn't be shocked if Fairey wins his case against the AP/Garcia. I wouldn't be shocked if he doesn't. As I said in my initial post, what we have now is a situation of massive uncertainty.

"I've always thought it wise to be a bit skeptical of anyone claiming the high-road in serving public interest . . ."

". . . especially when they're potentially being sued," says Ed Winkleman in response to the Wikipedia-National Portrait Gallery dispute. Lots of interesting points by Joy Garnett in the comments too.

A&B via Baby Kiss

Overheard in court (defense attorney arguing his adult/parent client - charged with battery - was acting in defense of child):

Prosecutor: "Your Honor, kissing is not a battery."

Defense Attorney: "Judge, kissing can be a battery. It's an unwanted touching . . ."

Judge: "Kissing a baby?"

Defense Attorney: "Judge, a kiss without permission . . ."

Judge: "Was the baby offended by the kiss?"

Defense Attorney: "Well, Judge . . ."

Judge: "Or are you saying it was a battery when she wiped the lipstick off?"

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I'm sure we can all predict where this ended.

ARCA News (UPDATED)

The New York Times had a story today on the master’s program in international art crime studies being sponsored by ARCA (the Association for Research Into Crimes Against Art). Derek Fincham, who's one of the teachers in the program, offers some reflections here and here.

This also reminds me that I forgot to mention that I'm writing a regular column for ARCA's new Journal of Art Crime, the first peer-reviewed academic journal in the study of art crime. My first column is on Vineberg v. Bissonnette. The issue is not online yet, but you can find information about the publication here.

UPDATE: A response to the NYT article by the ARCA folks here.

Alliteration of the Day

"Judge, I don't know where that evidence came from. It was mighty convenient. It felt like it was planted, planned, and prepared just for this case."

"Who Buys Art on a Cruise Ship?"

The Art Market Monitor flags another Park West Galleries story and says: "Though there’s no excuse for buying art on the say-so of a dealer who tells you it is a great investment, the cruise ships should be ashamed of their willingness to embrace this confidence game."

For more on Park West, start here.

"Wikipedia painting row escalates" (UPDATED)

That's the BBC News headline on the story mentioned last week here.

The deputy director of the Wikimedia Foundation (which runs Wikipedia) says: "It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopaedia serves any public interest whatsoever."

But the British Association of Picture Libraries and Agencies nicely lays out the counterargument: If museums like the National Portrait Gallery can't have their photographs protected, and "anyone [is therefore] able to use them for free, they will cease to invest in the digitisation of works, and everyone will be the poorer."

UPDATE: The Art Market Monitor says it's "a compelling case of self-interest presented as public interest."

"Barrel Monster" Sentence

50 hours of community service.

Background here.

Fairly Useless

Sergio Muñoz Sarmiento points to a strange case in the Court of Federal Claims which ruled that a postage stamp featuring a photograph of a sculpture was a fair use. The Court held that the stamp was "transformative, providing a different expressive character than [the sculpture]." The photograph "transformed [the sculpture's] expression and message, creating a surrealistic environment with snow and subdued lighting." It all "resulted in a work that has a new and different character than [the sculpture]." Not a particularly tough standard to meet.

Sergio wonders whether "sculpture has been gutted of copyright protection." I don't know about that, but it's another good example of how you can make the traditional four-factor fair use analysis do whatever you want it to do. As Judge Kozinski has said, the analysis can always go in either direction. The result is just massive uncertainty for all concerned.

"I could design a museum where there would be almost no risk of theft, but it wouldn’t be fun to visit"

Bloomberg reports that the Picasso sketchbook stolen in June still hasn't been recovered, and places the theft in the context of "several French arts institutions to have been robbed or vandalized recently."

And Then Comes Chief Justice Hassell

Last Thursday I went down to Abingdon with a couple folks from the office to get some CLE credits in the Solo and Small Firm CLE. Yes, I know it's not exactly a perfect match for prosecutors, but we don't get a lot of choices out here in the part of Virginia that's west of West Virginia and if you offer a free CLE I'm going to seriously consider going to it even if you are going to spend the day talking about the law of cartography as applied to international riparian rights.

Anyway, most of the CLE was okay. There was a gentleman who gave us an hour long speech about how important it is to maintain work-life balance which probably would have driven Scott nuts. We got a speech reminding people to make objections so that mistakes can actually be appealed (Virginia appellate courts are extremely unsympathetic if the trial attorney doesn't object). There was an ethics discussion which was mostly about when an attorney can contract under contingency; this was interesting primarily because a few of the older attorneys were going back and forth with the Bar expert about why they couldn't do X (which it seemed pretty clear that they had probably done at some point in their career). The worst part was the Tech For Solos section which can be summed up as "buy a more expensive, more powerful computer than you'll need and get all the expensive hardware and software to go with it." NOPE. WRONG. Epic fail. The high point of the CLE was the semi-lecture, semi-question and answer section by the Chief Justice of Virginia's Supreme Court, Leroy Hassell.

First, let me say that it's impressive that the Chief Justice would drive out here. It's probably a 5 hour drive to Abingdon from Richmond and he came down for an hour of face time with local lawyers. The Chief Justice has been controversial at times, and I've disagreed with mandates which were attributed to him, but the man has a presence to him when he speaks. It may say something about yours truly, but I watched him make his presentation and thought to myself, "It'd be really interesting to try a case against him."

Anyway, he announced that Virginia is going to start e-filing in NoVa and after it's perfected will be rolled out everywhere (I think it's also coming to some county out in far SWVa, but he didn't mention that). The crowd instantly started buzzing and questioning which basically boiled down to "Please, for the sake of all that is holy, please don't make it anything like the federal system and allow us to pay by debit card rather than having to set up accounts at every single courthouse." In response to a question, he announced the death of the judicial review program, which got no really noticeable reaction. One person asked a question about the law requiring that local rules not effect substantive rights of defendants (not really an issue out here, but in larger jurisdictions is a problem). The judge carefully evaded the question because there's a case pending, but said something to the effect of "I hear your concerns." Maybe the most interesting part was when some of the defense attorneys started asking about jury sentencing and the fact that juries don't get sentencing guidelines and can't go below minimum sentences like judges can (via suspended sentences). At first he was answering fairly openly, but then he closed down, deferring to the General Assembly as the part of the government which determines the sentencing regime. I think he was afraid that someone might write about it (not me, Peter Vieth, from Virginia Lawyer Weekly was there and did post about the Chief Justice: 1, 2). Then, having finished his hour with us, the Chief Justice left for his drive back to Richmond. I figure he probably got back about 5 p.m.

More on the Fisk Decision

More on the Court of Appeals decision in the Fisk-O'Keeffe case from Diverse magazine here and the Wall Street Journal Law Blog here. The latter characterizes the decision as holding "that Fisk owns O’Keeffe’s work at this point and therefore is free to do what it wants with its 101-piece, $60-million collection," but, as noted yesterday, that isn't quite right. You can read the decision here, the upshot of which is that on remand Fisk must establish that "the change of circumstances subsequent to the gift render literal compliance with the conditions [of the gift] impossible or impracticable." If they are able to do that, then "the trial court is to fashion a form of relief that most closely approximates Ms. O'Keeffe's charitable intent." The "best interests of the people of the State of Tennessee," which the lower court seemed to get so hung up on, would not seem to factor into that analysis (there may be forms of relief that are better for the people of the State of Tennessee but do not closely approximate O'Keeffe's intent).

The decision also goes out of its way, it seems to me, to say that "it is apparent" that "the charitable intent motivating the gifts" was "to make the Collection available to the public in Nashville and the South" (emphasis importantly in the original). If that's the intent, then a deal whereby the University sells a 50% undivided interest in the Collection for $30 million to, say, a new museum in Bentonville, Arkansas, with the University retaining the right to display the Collection for six months of every year, starts to look pretty good. But again, that's step two. Before they get there, they first have to show that compliance with the terms of the gift has become "impossible or impracticable."

Bridgeman Two?

The Guardian reports that London's National Portrait Gallery "has threatened legal proceedings" against a US resident "who downloaded thousands of high-resolution images from its website, and placed them in an archive of free-to-use images on Wikipedia." As Sergio Muñoz Sarmiento points out, this is Bridgeman v. Corel redux -- to what extent are photographic reproductions of public domain works protected by copyright? It's worth noting that Bridgeman was initially decided under UK law; and even in the final ruling, Judge Kaplan wrote:

"Finally, the amicus argues that this result is contraindicated because public art collections in the United Kingdom charge fees for reproductions of photographic images of works in their collections, thus evidencing their view that the images are protected by copyright. But the issue here is not the position of an economically interested constituency on an issue that has not been litigated, at least in this century, but the content of the originality requirement of the British Copyright Act. … For all of the foregoing reasons, the Court is persuaded that its original conclusion that Bridgeman's transparencies are not copyrightable under British law was correct."

"We reverse the trial court’s finding that the Georgia O’Keeffe Museum has standing"

"We also reverse the trial court’s finding that the gifts to the University were motivated by a specific charitable intent instead of a general charitable intent, the finding that the University cannot establish that it is entitled to cy pres relief, and the order dismissing the Amended Petition of the University for cy pres relief. In furtherance of our decisions, we remand with instructions to strike all pleadings and motions filed by the O’Keeffe Museum, ... to dismiss the O’Keeffe Museum as a part to this action, to vacate all judgments entered in furtherance of the relief sought by the O’Keeffe Museum, including, without limitation, the trial court’s order entered March 6, 2008, and for further proceedings consistent with this opinion."

As the NYT reports, Fisk "must still win permission in a lower court to sell an interest in the collection." And as Lee Rosenbaum points out, they may have gotten the O'Keeffe Museum out of the way, but Tennessee Attorney General Robert Cooper still needs to be dealt with, and he is on record as strongly preferring a solution "that would allow the Stieglitz Collection to remain in Nashville on a full-time basis."

Sotomayor and Photography

The NYT's David Dunlap discusses another art law connection for Judge Sotomayor. Related post here.

ALR Acquisition

"The Art Loss Register (ALR) announced the acquisition of the register of stolen art and antiques from Trace, a subsidiary by MyThings which will become a minority shareholder in the ALR."

Virginia: When can failed plea negotiations be used at trial

I'm in a sentencing hearing and the defendant keeps talking about the plea negotiations in an effort to get the judge to give her the time I'd offered rather than the time the guidelines called for. I object on the grounds that plea negotiations aren't supposed to be part of the trial and the judge asks me "Isn't that only in civil cases?" I'd never heard that before so I decided to do a little research to see what if/when plea negotiations can be used during a Virginian trial.

The basic rule is set out in Virginia Rule of the Supreme Court 3A:8(c)(5):

(c) Plea Agreement Procedure.

(5) Except as otherwise provided by law, evidence . . . of an offer to plead guilty or nolo contendere to the crime charged, or any other crime, or of statements made in connection with and relevant to any of the foregoing [] offers, is not admissible in the case-in-chief in any civil or criminal proceeding against the person who made the [] offer.

This language clearly forecloses the use of statements made by a defendant during plea negotiations from being used in the prosecutor's case in chief. But see Hood v. Commonwealth, Va, 2005, No. 040774 (can be used to impeach, rebut, & cross examine) & Ayla v. Aggresive Towing, Va, 2008, No. 071451 (unwithdrawn plea may be used against 3d party witness). However, the language also seems purposefully ambiguous. It could be restricted to only defendants if only written slightly differently

(5) Except as otherwise provided by law, evidence . . . of an defendant's offer to plead guilty or nolo contendere to the crime charged, or any other crime, or of statements made in connection with and relevant to any of the foregoing [] offers, is not admissible in the case-in-chief in any civil or criminal proceeding against the person who made the [] offer defendant.

The failure to denominate one party for whom the protection exists seems to indicate that this Rule was meant to apply to both sides, that "offer to plead guilty" simply means a plea offer proffered by either side, and that both sides are forbidden to talk about plea offers in their case at chief. There's no other explanation for not simply stating this is a protection for a defendant. As a practical matter, I'm not sure the prosecution would often need this protection during the defendant's case in chief.

So, the parameters discovered so far are (1) no discussion of statements made during failed plea negotiations during cases in chief, but they can be used for (2) impeachment, (3) cross examination, and (4) rebuttal. Still, that's only during the guilty/not guilty part of the trial. What about during sentencing hearings?

Well, 19.2-295.1 governs the jury sentencing hearing. Per the statute, the Commonwealth may introduce victim impact statements and shall introduce the defendant's prior record. Then "the defendant may introduce relevant, admissible evidence related to punishment." The prosecution has a pretty solid definition as to what it can introduce during its sentencing case in chief and it does not include statements made during failed plea negotiations. The question for the defense is basically, what is relevant? In Commonwealth v. Shifflet, Va., 1999, No. 90187, the Virginia Supreme Court explained relevant as follows:

The kind of evidence contemplated by § 19.2-295.1 bears upon the record of the defendant and the nature of his crime. Evidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of the noncapital crime is admissible mitigating evidence.

It seems unlikely that a defendant would be able to fit a statement made by the prosecution during failed plea negotiations under either his record or the nature of his crime. However, 19.2-295.1 allows the prosecution to introduce "relevant, admissible evidence in rebuttal." Per this section of the statute, if the defendant got on the stand and testified "Bob" did it all any statements he made during plea negotiations which contradicted that would be available to rebut his statement.

However, a sentencing hearing held by a judge isn't covered by 19.2-295.1. In fact, I can't seem to find a statute authorizing an actual sentencing hearing by a judge. The only things which seem to exist are rules regarding presentence reports, a requirement of sentencing guidelines, and a requirement that the judge allow the defendant to make a statement before pronouncing the sentence. Despite this, the reality is that judges do have sentencing hearings, calling on both sides to provide evidence, whether they are authorized to do so or not.

It stands to reason that evidence introduced in a judicial sentencing hearing would be limited just as it is in a jury hearing. However, there's a second consideration when either the defendant or the prosecution tries to introduce statements from plea negotiations during a judicial sentencing hearing. Virginia Supreme Court Rule 3A:8(c)(1) authorizes plea negotiations, but also states

In any such discussions under this Rule, the court shall not participate.

As long as both sides stick to trying to convince the judge as to what an appropriate sentence would be, the hearing should be okay. However, the second the parties start talking about statements made during the plea negotiations they are effectively turning the judicial sentencing hearing into an extension of the plea negotiation in which the Court is forbidden to participate. It can be argued that even a regular judicial hearing would be an extension of the plea negotiation, just without open discussion of the failed plea negotiations. However, in that case all judicial sentencing hearings in which either side provided evidence would be invalid under 3A:8(1). It's logical, but it assumes that some sort of plea negotiation took place. In a hearing wherein one of the parties tries to introduce statements from plea negotiations there is no assumption.. In such a case I think the judge is required to stop the party as soon as he realizes what is going on and require the party to not discuss the plea negotiations in the hearing.

A Second Salander Indictment (UPDATED)

Bloomberg has the story here.

UPDATE: More from Judith Dobrzynski.

"Daniel Moore and the Neverending Lawsuit"

The Tuscaloosa News brings us up to date on the lawsuit between the University of Alabama and sports artist Daniel Moore. The short version: "Now, the case may be close to reaching its sixth judge, and attorneys are back to arguing over year-old motions."

The AP-Fairey Case Just Got Even More Interesting

The American Lawyer reports that "freelance photographer Mannie Garcia, represented by Boies, Schiller & Flexner partner George Carpinello, filed a memorandum of law in federal district court in Manhattan seeking to intervene in the dispute that so far has pitted The Associated Press against artist Shepard Fairey." Garcia claims that he (not the AP) owns the copyright in the photo.

As Marquette's Bruce Boyden noted back in February, "it all comes down to whether [Garcia] was an [AP] 'employee' at the time he took the photo." In his filing, Garcia says he is "an independent, freelance" photographer and worked for the AP "for approximately five weeks." He "worked from his apartment and his car and used his own equipment," and he "selected what photographs to take." He was "not eligible to join the union" and "received no health, vacation, unemployment or other benefits." He was "free to -- and did -- work for other individuals and corporations while working with the AP."

In a statement, the AP says it is "evaluating Mannie Garcia's position, but remains confident in AP's ownership of the copyright because Mr. Garcia was an employee of AP when he took the photo."

Back in February, Boyden commented: "How in the world could this happen? How could an organization like AP not ensure that they have the copyright over the material that they publish? ... [I]f it did happen, it strikes me as a bizarre lapse on AP’s part."

He has a new post this afternoon, which says, first, that "Garcia’s motion will very likely be granted. He claims ownership of the photo, and this litigation will, among other things, determine AP’s ownership rights in the photo and whether Fairey infringed it. Not only is he a mandatory intervenor under Fed.R.Civ.P. 24(a), but he’s likely a necessary party under Rule 19(a)(1)(B)(i)." He also says that "it seems that Garcia has a pretty good case that he was not an AP employee at the time he took the photo" and, therefore, "[u]nless AP can produce some sort of writing, I think they may be in trouble."

"It had to be someone who knew me, knew my house and possibly knew my habits"

"Burglars broke into [a Texas] home on June 23 and stole a dozen pieces of art from a who's who of 19th and 20th century artists: Pablo Picasso, French post-impressionist Henri de Toulouse-Lautrec, early abstractionist Paul Klee and Alexander Calder .... [The 85-year old homeowner] initially reported only the theft of an original work by Picasso, worth between $15,000 and $20,000, but this week noticed that 11 other pieces, including seven more by Picasso, ... were missing. Those pieces were on loan to her from dealers in New York and Los Angeles for an upcoming art show at her home."

Art Theft Central's Mark Durney has some questions: "Surprisingly, none of the art was insured. I would not expect such naiveté from a former gallery owner or her associates. Additionally, how has it taken two weeks for her to realize her colleagues' art is missing in action? One might presume if she were including the loaned works in a show at her private residence, then she (and her colleagues) would have been all the more eager to confirm whether or not they had been among the works stolen."

Around the Blawgs: From Raising the Bar to Stupid Criminal Tricks on Facebook

1) Gideon appears to have turned his blawg into a Raising the Bar fansite.

2) Mark on whether legal "etics" can and will be trumped by other moral obligations.

3) Former Federal Prosecutor Syndrome.

4) Some days defense attorneys have good dealings with prosecutors and on other days, not so much.

5) If you go to a Wisconsin law school you don't have to take Wisconsin's Bar exam?

6) It's amazing how stupid people can be with Facebook.

7) How the blawgosphere has changed for the worse.

Charitable Deductions Update

A NYT story today on the apparent "collision course" between House and Senate Democrats "over how to pay for a sweeping overhaul of the nation’s health care system" notes that "the president, in his initial budget, had called for capping certain deductions, including those for charitable contributions, at the 28 percent income tax bracket, an idea initially rejected by a number of Democrats in Congress," but says that "some lawmakers who opposed Mr. Obama at that point said they were willing to consider a higher limit — at the 35 percent bracket — [when] the highest tax bracket reverts to 39 percent if the Bush tax cuts are allowed to expire."

Fairey Guilty Plea

The AP reports that Shepard Fairey "was sentenced to two years' probation Friday after pleading guilty to three vandalism charges. Prosecutors dropped 11 other charges. [Fairey] pleaded guilty in Boston Municipal Court to one charge of defacing property and two charges of wanton destruction of property under $250, all misdemeanors." He also "must pay $2,000 to a graffiti removal organization and cannot possess tagging materials — such as stickers or paste — in Boston except for authorized art installations. He also must tell officials when he plans to visit Suffolk County, where Boston is located."

At Least Buy Me Dinner First

It's a fairly nasty sentencing hearing. The defendant has a loooong record and is looking at years of incarceration. He is entirely unrepentant, argumentative with the judge, and absolutely cannot understand why he should get such a long sentence. "Judge, going to prison for 8 years before didn't accomplish anything. Sending me away for 5 won't either." (IKYN) Sobbing in the front row of the gallery are Defendant's mother and sister who both testified, through sobs, about how the last 6 months in jail have finally cured his heroin addiction, that he is a changed man, and that he needs to be out to help raise his 3 year old daughter. It was moving testimony but then the defendant took the stand, argued with the judge, and claimed that his previous attorney did not tell him that there was an offer for 2 years and 1 month and therefore, he now ought to be able to now take that sentence rather than the what the sentencing guidelines call for (funny, I remember spending an entire morning in court with his prior attorney shuttling between me and the defendant negotiating something. I thought it was my plea offer). Defendant's current attorney is getting blasted from all sides (including his client) and apparently decides it's time to take desperate measures.

It's an hour into the hearing and, honestly, we're all pretty much repeating ourselves at this time (when the defendant isn't interrupting me, the defense attorney, or the judge to tell us how we are wrong). I've stood up to make what I hope is my final argument and I'm about 7 minutes into it when I feel something touch me in the back. At first, I ignore it continuing my argument, then it runs up my back. I stop. Maybe the deputy is trying to get my attention? I turn to the right and the deputy is just standing there in his corner bailiffing. Then it moves down my back. I turn to my left and there behind me is the defense attorney and his finger is resting on my back.

"What are you doing?"

"Just trying to distract you and make you forget your argument."
.

"The museum violated no formal rules, but both we and the art world wish its leaders had exhibited more prudence, openness and collegiality"

The LA Times editorial board on the OCMA private sale.

"Artists hold applause for Obama"

Politico looks at the Obama administration's approach to the arts so far.

Judith Dobrzynski is quoted as saying: "Obama had a well-defined arts policy and a task force during the transition, so expectations in the arts community rose very high. They disappointed people by not having an arts czar. ... I think it' still up in the air about whether, a few months from now, people say they are doing right or not."

Salinger and Prince

A reader points out that Deborah Batts, the Judge who just blocked publication of a Catcher in the Rye sequel, is also the Judge in the Richard Prince infringement lawsuit. So is there anything in the Catcher opinion that gives us any insight into how Judge Batts is likely to rule in the Prince case?

The opinion walks through the four-factor fair-use analysis pretty methodically, relying fairly heavily on quotes from other fair use cases. On transformativeness (part of the analysis under "purpose and character of use"), it notes that "60 Years borrows quite extensively from Catcher ... such that ... the ratio of the borrowed to the novel elements is quite high, and its transformative character is diminished" (p. 22). As a result, "the determination of whether it constitutes fair use will depend heavily on the remaining factors" (pp. 22-23). Also, because 60 Years "is to be sold for profit, ... this [separate] prong of the first factor weighs against a finding of fair use" (p. 23).

On the second factor -- "the nature of the copyrighted work" -- "there is no question that [Catcher in the Rye] is a 'creative expression for public dissemination that falls within the core of the copyright's protective purposes.' Consequently, this factor weighs against a finding of fair use" (p. 24).

Regarding the third factor -- "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" -- "the ratio of the 'borrowed to the new elements' in 60 Years is unnecessarily high" (pp. 30-31). "Because Defendants have taken much more from Salinger's copyrighted works than is necessary to serve their alleged critical purpose, the third factor weighs heavily against a finding of fair use" (p. 32).

Finally, the fourth factor -- "the effect of the use upon the potential market for or value of the copyrighted work" -- "requires the courts to 'consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market for the original'" (pp. 32-33, emphasis added). In response to the defendants' claim that there was "no evidence that 60 Years will undermine the market for Catcher or any authorized sequel," the opinion says that "it is quite likely that the publishing of 60 Years and similar widespread works could substantially harm the market for a Catcher sequel or other derivative works" (p. 34, emphasis added again). As a result, "the fourth factor weighs, albeit only slightly, against fair use" (p. 35).

Adding it all up, the Court finds that the "limited transformative character" of the work is not enough to overcome "the obvious commercial nature of the work, the likely injury to the potential market for derivative works ..., and especially the substantial and pervasive extent to which 60 Years borrows from Catcher" (p. 36).

All in all, one senses a very cautious approach, and not someone who is likely to embrace more ambitious theories of appropriation art not securely grounded in existing caselaw. But, barring settlement, we'll soon see.

Roxanna Brown Settlement

Seattle Times: "The federal government has agreed to pay $880,000 to settle a lawsuit filed over the death of Roxanna Brown, an Asian-antiquities expert who died last year while being held at [a] Federal Detention Center."

For background on Brown, see here.

More Opportunity Cost (A Continuing Series)

Over the weekend came news that the Albright-Knox would now be open only four days a week.

Other cost-cutting measures include (1) eliminating extended hours on Thursday evenings, (2) reducing programming on free Fridays, and (3) reducing the number of major exhibitions. Earlier this year the museum also raised the admission price from $10 to $12.

Of course, to the Deaccession Police, none of this matters. It doesn't make a difference if the museum is open four days a week, or three days a week, or 15 minutes on alternating Tuesdays. The purpose of a museum is to hold onto the works it happens to have -- every last one of them -- so that they are accessible to future generations (even if they are only accessible for those 15 minutes a week). Questions of access, engagement, and so on are not permitted to enter the discussion.

In fact, as this WBFO story reminds us, the museum does have "a separate $67 million endowment dedicated to purchasing new work." (I assume as a result of this.) And, of course, from the AAMD anti-deaccessionist perspective, buying every one of those unspecified future works is more important than any other museum purpose you care to name, including keeping the doors open for people to see the work.

Metropolis v. Gotham: The CrimLaw Community

So, I'm flipping thru late night TV and I come across an animated Batman film and the last day or so the cable channels have been running that horrendous "Superman Returns" film. Anyway, it got me to thinking. Where would various members of the crimlaw community prefer to be, Metropolis or Gotham?

Criminals:

In Metropolis if you point a pistol and say "This is a . . ." a red and blue blur picks you up and deposits you at the nearest police station. You are entirely unharmed and locked up with the other 43 men whom Superman caught committing crimes during a 3.6 second patrol of the entire city. Violent crime is low in Metropolis because Superman is everywhere, all the time. When you go to court Superman comes as the star witness against you and you will be convicted. However, Metropolis has a merciful judicial system and the odds are that you will get probation with some sort of rehab program.

In Gotham the odds are that on any given day you will get away with your crime. After all, Batman can only be at one place at a time. Of course, if it is your day a maniac dressed in a Bat costume will descend upon you and take his time explaining in painstaking detail why you shouldn't be committing crimes in his city. Then he'll leave you tied to a light pole on a corner until the police show up to render medical aid and eventually arrest you. When you are brought into court in your wheelchair, you know Batman is not going to be there to testify against you. You probably won't get convicted. However, if you are Gotham's judicial system isn't going to waste any time on that namby-pamby rehab stuff; you'll consider it a good sentence as long as they don't send you to Arkham.

Police:

In Metropolis, life on most days is very good for the officers. You stroll down the street, flirt with the girl at the LexCorp coffee shop, write the odd traffic ticket, and every so often a red-blue blur drops off three guys who tried to rob a bank and you take them into the station. Generally, life is good. Then come the days when Darkseid or Mongul or Doomsday show up to try and take Superman out and you're getting disintegrated because you were the first to arrive on scene or you spend the day dodging trucks, cars, and buildings they are throwing at each other as you try to get civilians away from indestructible beings fighting each other in the middle of a major city.

In Gotham, it's a good day when no one you know gets killed. There's a nutcase vigilante bouncing around the city dressed like a bat and the Commissioner seems intent on coddling him instead of putting him away. Meanwhile, one homicidal maniac after another keeps coming to town - the Joker, Two Face, Scarecrow etc. - killing any officer who gets in his way (not to mention citizens) until the vigilante accepts the maniac's challenge and they fight. The "bad guy" gets captured, but that just means he'll escape from Arkham Asylum and be back out on the street next month doing it all again.

Defense Attorney:

In Metropolis you have to cross examine Superman. It's your job to sell the jury on Superman as an out of control vigilante who is lying on the stand about your client. You know, the guy with the nickname of "the Big Blue Boy Scout" who has probably either saved the life of every person on your jury or helped their grandmother get her cat out of a tree.

In Gotham you don't have to worry about Batman showing up at a trial. As long as you stay honest you'll probably never see the Batman. And the fact that you keep wheeling in clients with broken legs and arms, who had to get out of the hospital before they went to jail makes a wonderful case for police sanctioned, vigilante brutality. You'll win a lot of cases. Then comes the day when the judge assigns you to be the Joker's new court appointed attorney (after he killed the last six) . . .

Prosecutor:

In Metropolis convictions are guaranteed. What jury or judge is going to rule against Superman? The man who stands for Truth, Justice and the American Way? Of course, also following Superman's lead, the courts won't believe anyone beyond salvaging and while it'll be easy to have a 99.998% conviction rate, the odds are most of the time the defendant will get an extremely light sentence and be given the opportunity to rehab and become a productive member of society (despite his 12 prior convictions).

In Gotham, as a prosecutor you live with a police escort and 24 hour guard. The Police Commissioner is constantly on you because you can't convict most of the bad guys his pet vigilante mangles and leaves for the police. There's either no witnesses or, in the case of the splashy villains, plenty of witnesses but a defendant who is clearly NGRI and who ends up getting sent back to Arkham, which doesn't seem able to keep a church mouse from escaping. And even living with 24 hour police protection the bad guys can get to you - remember Harvey Dent.

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I leave the decision to you. Where would you rather be?

"In the US, the practice of 'deaccessioning' is more prevalent and even major institutions buy and sell robustly"

Robustly.

But 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."

A republic if you can keep it.

Mr. President

I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said "I don't know how it happens, Sister but I meet with no body but myself, that's always in the right — Il n'y a que moi qui a toujours raison."

In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another's throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects & great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity. Much of the strength & efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress & confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts & endeavors to the means of having it well administred.

On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.

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Benjamin Franklin at the Constitutional Convention

How Best to Remove Objects from the Public Trust

Daniel Grant examines the question in the Wall Street Journal. On the one hand, those concerned with keeping artworks in the public trust should favor private sales to other museums. But the hysteria that surrounds deaccessioning tends to push people to auction:

"In most cases, museums prefer going to auction. Whatever criticism these institutions receive for selling objects only increases if they don't do it that way. Take, for example, the Albright-Knox Art Gallery in Buffalo, N.Y., a museum devoted to contemporary art that sold 207 of its older artworks at Sotheby's, raising $67.2 million. There was some discussion at the board level of selling pieces directly to other museums or through art dealers, said Louis Grachos, the Albright-Knox's director, 'but in the end, it just seemed like going the auction route was the safest and wisest choice.' Certainly wise in this case, but why safest? 'We were under a microscope, and people were looking for any reason whatsoever to attack us,' he said. 'Going to public auction made all our actions transparent. No one could claim that we were pursuing back-room deals.'"

But Grant suggests that "museum directors fearful of public criticism might want to broaden their outlook. The Albright-Knox was probably right to take its disparate objects to auction, ... while artworks that ought to stay together ... call for a perhaps less lucrative 'friendly' sale to another institution. It made sense that when Philadelphia-based Thomas Jefferson University sought to raise money by selling its painting 'The Gross Clinic' by Thomas Eakins, it gave first dibs to the Philadelphia Museum of Art .... The subject of the painting, Dr. Samuel Gross, was a renowned Philadelphia physician, and Eakins himself spent most of his life in that city. Raising money and doing well by the art aren't mutually exclusive goals."

Changes the General Assembly Should Make Post Melendez-Diaz

Here are my suggested changes to Virginia's demand statute:

§ 19.2-187.1. Right to examine person performing analysis or involved in chain of custody.

The accused in any hearing or trial in which a certificate of analysis is may be admitted into evidence pursuant to § 19.2-187 or § 19.2-187.01 shall have the right to require the Commonwealth to call the person performing such analysis or examination or involved in the chain of custody as a witness therein, and examine him in the same manner as if he had been called as an adverse witness. If the accused does not notify the trial court and Commonwealth of the requirement prior to the trial date he waives his right to require the person's presence at trial.

Such witness shall be summoned by and appear at the cost of the Commonwealth. Unless waived by the Commonwealth, the Commonwealth shall have no less than 30 days from the date of notification by the accused to subpoena and bring the person to court.

I these changes would make the "demand" part of the close to bulletproof and keep the gamesmanship to a minimum.