As I mentioned below, I got a chance, thanks to Friend of the Barnes Evelyn Yaari, to see The Art of the Steal last night at the New York Film Festival. I was pretty disappointed. It's basically a piece of agit-prop; it makes no effort to provide any sort of balance. (I guess I should have been tipped off by the title. No matter what you think of the decision, in what sense were the Barnes works "stolen"? The movie keeps emphasizing that they are moving less than five miles away. Shouldn't it have been called The Art of the Move a Few Miles Up the Road?) I'm sure there will be lots to say about this as it goes out into wider distribution, but for now some initial thoughts:
1. As I've mentioned before, to my mind one of the overarching lessons of the story is the perils of anti-deaccessioning absolutism. The movie mentions that the Barnes art is worth between $25-30 billion. Whether you think the financial troubles at the Barnes were (a) the cause or (b) the pretext for the move (or, if you prefer, theft), those troubles could have been forever solved by the sale of a tiny fraction of the works (without ever going anywhere near the core masterpieces of the collection). Now, if you're going to stick to your position that museums can never sell art (except to buy more art), then you've got to at least accept the possibility that something worse might happen as a result. That's exactly what happened here. Would you rather have 99.whatever percent of the collection in its original location? Or 100% of the collection in a new location?
2. The movie never really grapples with the public-private issue. A number of the talking heads, including Julian Bond, emphasize that it was Dr. Barnes's work so he could do whatever he wanted with it (including limiting the number of days the collection was open to the public, and the number of permitted visitors). But aren't we always told that great works like these are "held in the public trust"? Doesn't it matter at all that many more people will get to see the works in their new location? I'm not saying that the public interest necessarily trumps Dr. Barnes's intent, but it's a difficult question which, as I say, the film just glides over.
3. There's another tension that I think undermines the whole narrative of the film (and all other Barnes-related conspiracy theories). On the one hand, we're told that the Philadelphia Establishment (cue Darth Vader music, boo, hiss) made no bones about its desire to get its hands on the Barnes Collection from just about the moment it opened. But then, any time any objective evidence of that desire is discovered (whether it's a line item in the city budget in 2002, or a reference in a tax filing by the Pew Charitable Trust, or a conversation involving Governor Rendell in the mid-90s), we're supposed to see it as establishing some kind of secret conspiracy to snatch the collection. We know the powers-that-be wanted to move the Barnes to Philadelphia because they succeeded in moving it. So why bother with all the conspiracy theories? (But see again point 1 above. If it weren't for the Barnes's constant financial troubles, their evil plot to bring the collection to a wider audience could not have succeeded.) I discussed the "secret" budget-appropriation and Pew tax-filing points a couple of years ago here.
I'll stop there for now, and also recommend Richard Lacayo's five-part series on the subject (start here) and Julia Klein's piece in the Wall Street Journal yesterday.
Wednesday, September 30, 2009
Charitable Deductions Update
The Chronicle of Philanthropy reports that the Baucus bill includes a 35 percent cap on charitable deductions by wealthy taxpayers (defined as individuals earning $200,000 and families earning $250,000):
"That is less drastic than the 28-percent limit proposed by President Obama. But a coalition of nonprofit leaders this week sent a letter to Mr. Baucus opposing the amendments, saying they would create a disincentive for charity’s biggest donors during a 'tough charitable giving environment.'
"'Charitable organizations are dealing with enormous financial challenges stemming from the economic downturn,' says the September 21 letter, which was signed by representatives of 14 groups including the American Association of Museums ...."
"That is less drastic than the 28-percent limit proposed by President Obama. But a coalition of nonprofit leaders this week sent a letter to Mr. Baucus opposing the amendments, saying they would create a disincentive for charity’s biggest donors during a 'tough charitable giving environment.'
"'Charitable organizations are dealing with enormous financial challenges stemming from the economic downturn,' says the September 21 letter, which was signed by representatives of 14 groups including the American Association of Museums ...."
Fake Kahlos?
The New York Times had more yesterday on the group of disputed Frida Kahlo works mentioned earlier here:
"Last week the Mexican government trust that controls the copyright to Kahlo’s work filed a criminal complaint against [the works' owner], a measure aimed at investigating the works. The trust is also investigating legal recourse in the United States to halt sale of [a book published by Princeton Architectural Press about the works]."
David Nishimura says: "Just from reading the article, it's obvious that the 'discovery' is an audacious but incompetent exercise is fakery -- yet the writeup is pitched as if there is a real debate about the material's authenticity."
"Last week the Mexican government trust that controls the copyright to Kahlo’s work filed a criminal complaint against [the works' owner], a measure aimed at investigating the works. The trust is also investigating legal recourse in the United States to halt sale of [a book published by Princeton Architectural Press about the works]."
David Nishimura says: "Just from reading the article, it's obvious that the 'discovery' is an audacious but incompetent exercise is fakery -- yet the writeup is pitched as if there is a real debate about the material's authenticity."
"What Cha-gall!"
That's the lede to this New York Post story on a state court lawsuit by collector Joy Glass against art dealer Lyn Segal:
"The painting came with a certificate of authenticity from the Comité Chagall -- a French group recognized as the ultimate authority on Chagall's works. But in January 2009, the group told Glass that both the painting and certificate were fake, the suit said."
"The painting came with a certificate of authenticity from the Comité Chagall -- a French group recognized as the ultimate authority on Chagall's works. But in January 2009, the group told Glass that both the painting and certificate were fake, the suit said."
Joyce Settlement
Law.com reports that "the estate of author James Joyce has agreed to pay $240,000 in legal costs incurred by a Stanford University scholar following a fair use legal battle." Aided by the Stanford Law School Fair Use Project, the scholar -- Carol Shloss -- had brought an unusual "copyright misuse" action against the estate, which settled, but she then was awarded $326,000 in legal fees as the prevailing party.
The Fair Use Project's Anthony Falzone reacts here.
The Fair Use Project's Anthony Falzone reacts here.
Another Art Theft
I mentioned the $27 million Pebble Beach art theft below. The Edmonton Sun reports on a much smaller, and less complicated, theft from a Toronto gallery:
"The art rustlers threw a rock through the front window of Gallery Gevik just after 1:30 a.m., picked up the three paintings -- worth as much as $60,000 -- and fled the ritzy downtown neighbourhood before the cavalry arrived in response to the security alarm that was set off."
Mark Durney: "Because this theft appears to be so basic, it would not surprise me to find that an individual from the Toronto area stole the paintings to simply pay for his own 'fix.'"
"The art rustlers threw a rock through the front window of Gallery Gevik just after 1:30 a.m., picked up the three paintings -- worth as much as $60,000 -- and fled the ritzy downtown neighbourhood before the cavalry arrived in response to the security alarm that was set off."
Mark Durney: "Because this theft appears to be so basic, it would not surprise me to find that an individual from the Toronto area stole the paintings to simply pay for his own 'fix.'"
And We're Back
I've been busy atoning for my sins ("and for the sin of considering even the possibility of selling a work of art to keep a museum from closing its doors . . .") and seeing The Art of the Steal at the New York Film Festival (more on that later) and fallen a little behind, so let's start catching up on some news from the last few days, starting with a major art theft in Pebble Beach: paintings and drawings, valued at more than $27 million, from the home of a retired Harvard Medical School professor.
The Art Market Monitor thinks the story "contradicts much of what the experts tell us about art thefts, which is that they are primarily crimes of opportunity, not the work of criminal masterminds with shopping lists composed by secretive billionaires." David Nishimura says "it all sounds awfully fishy."
And Derek Fincham wonders: "Why all these [recent] thefts? Is it a product of the economic downturn? Or are thieves hoping to gain some of these lucrative rewards?"
The Art Market Monitor thinks the story "contradicts much of what the experts tell us about art thefts, which is that they are primarily crimes of opportunity, not the work of criminal masterminds with shopping lists composed by secretive billionaires." David Nishimura says "it all sounds awfully fishy."
And Derek Fincham wonders: "Why all these [recent] thefts? Is it a product of the economic downturn? Or are thieves hoping to gain some of these lucrative rewards?"
Monday, September 28, 2009
Litter Patrol: Jail or Not?
After a number of misdemeanor convictions, Defendant is facing her first felony conviction. There's no doubt as to guilt (committed a felony in the presence of an officer), but the sentencing guidelines are really strange. If Defendant has spent any time in jail the guidelines will recommend she get over a year; if she has not the guidelines will recommend probation. Neither seems appropriate. Anyway, per the record, she served 10 days back in 2001, so it looks like she's going to go away for a while.
We all get to court and I give Attorney the plea offer and show him Defendant's guidelines. He goes off and talks to his client. Then he comes back. "She says she's never spent any time in jail." Uh-huh. Sure. I fire up the computer and connect to the Virginia Supreme Court's site. We look at the record of Defendant. Sure enough, February 2001 Defendant was sentenced to 90 days with 80 days suspended.
Attorney calls Defendant to the front of the courtroom and points at the screen. "Says here that you went to jail in 2001." Defendant, looking over my shoulder at the screen, "No sir. I did not. I remember coming to court for that, but I never got no jail time." Attorney decides that he needs to ask Judge for a continuance so he can check this. Judge says, "Attorney, your case is the last of the day, but I've got about an hour of paperwork waiting back in my office. This conviction was from our misdemeanor court. Go check it out and come back."
So off we go (after Defendant begs off to Attorney because she needs to go get a smoke). Attorney and I get walk down the hall to the clerk's office, which is luckily fairly empty of business. A helpful clerk takes about 10 minutes to hunt up the old file.
Right at the top it states "Guilty: Snipe Hunting Punishment: 90 days / 80 ssp." Then we read further down the sentencing document and find "10 days Hwy cleanup shall count as jail time."
WHAT THE HECK IS THAT?!?
We're not sure what to do with that. She was sentenced to 10 days in jail, but apparently the judge didn't make her go. Picking up litter on the side of the road sure isn't jail, but the judge defined it as such for this offender. Does that count against her on the sentencing guidelines under "Prior Incarceration/Commitment" or not? Neither of us are sure.
We bump heads for a little while about this. In the end, while I can make the argument that the litter patrol was incarceration - per the sentencing judge - I agree to not count it if Defendant serves some months on a misdemeanor she has appealed to the felony court. I offer this because if I lose the argument Defendant might get probation for both and I think that's entirely inappropriate. Attorney, knowing that if he argues the litter patrol shouldn't count as incarceration - no matter what the sentencing judge said - he might lose and that decisions the felony judge makes about sentencing guidelines cannot be appealed, recommends it to Defendant as better than risking over a year. She jumps at it.
The rest went pretty much according to normal procedure. Defendant pled guilty, got probation on the felony and months on the misdemeanor. And thus ended another strange day in the courtroom.
We all get to court and I give Attorney the plea offer and show him Defendant's guidelines. He goes off and talks to his client. Then he comes back. "She says she's never spent any time in jail." Uh-huh. Sure. I fire up the computer and connect to the Virginia Supreme Court's site. We look at the record of Defendant. Sure enough, February 2001 Defendant was sentenced to 90 days with 80 days suspended.
Attorney calls Defendant to the front of the courtroom and points at the screen. "Says here that you went to jail in 2001." Defendant, looking over my shoulder at the screen, "No sir. I did not. I remember coming to court for that, but I never got no jail time." Attorney decides that he needs to ask Judge for a continuance so he can check this. Judge says, "Attorney, your case is the last of the day, but I've got about an hour of paperwork waiting back in my office. This conviction was from our misdemeanor court. Go check it out and come back."
So off we go (after Defendant begs off to Attorney because she needs to go get a smoke). Attorney and I get walk down the hall to the clerk's office, which is luckily fairly empty of business. A helpful clerk takes about 10 minutes to hunt up the old file.
Right at the top it states "Guilty: Snipe Hunting Punishment: 90 days / 80 ssp." Then we read further down the sentencing document and find "10 days Hwy cleanup shall count as jail time."
WHAT THE HECK IS THAT?!?
We're not sure what to do with that. She was sentenced to 10 days in jail, but apparently the judge didn't make her go. Picking up litter on the side of the road sure isn't jail, but the judge defined it as such for this offender. Does that count against her on the sentencing guidelines under "Prior Incarceration/Commitment" or not? Neither of us are sure.
We bump heads for a little while about this. In the end, while I can make the argument that the litter patrol was incarceration - per the sentencing judge - I agree to not count it if Defendant serves some months on a misdemeanor she has appealed to the felony court. I offer this because if I lose the argument Defendant might get probation for both and I think that's entirely inappropriate. Attorney, knowing that if he argues the litter patrol shouldn't count as incarceration - no matter what the sentencing judge said - he might lose and that decisions the felony judge makes about sentencing guidelines cannot be appealed, recommends it to Defendant as better than risking over a year. She jumps at it.
The rest went pretty much according to normal procedure. Defendant pled guilty, got probation on the felony and months on the misdemeanor. And thus ended another strange day in the courtroom.
Saturday, September 26, 2009
Moving Closer to the Portable Electronic Office
The techsavy world (via Gizmodo) has been making a little bit of a fuss about the new "tablet" design which Microsoft is rumored to have come up with, apparently all based upon the leak of this video:
I've been watching the handheld computer market for a while now and this form factor is an innovative idea which I think merits consideration and imitation. Of late, the real innovations in handcomps have been on the ereader branch, so it's good to see innovation from the tablet side.
This solves one of the biggest problems with tablets: how to view a document and take notes on it using the same computer. Sure, there were workarounds. Some split the top and bottom half of the screen; some made the original document smaller. None were really satisfactory. Now a document can be on one panel and you can be taking notes on the other.
Nevertheless, I suspect that this will not become the tablet which launches thousands. Why? Because they will try to do too much and be too fancy and they probably still haven't solved the weight problem. Companies need to concentrate on making this (and any other tablet) into a replacement for a legal pad, files, and books. They need to concentrate on doing this well and getting the price as low as possible - down to the price level of netbooks or what good PDA's used to cost.
Just imagine being able to go to court with a handcomp the size of a legal pad containing all your files and notes (because you save them electronically as soon as you make them), complete copies of all the statutes and cases (for every US jurisdiction), and all the secondary treatises on evidence, procedure and law. It's not here yet, but, God willing, sometime soon.
Here's what I want in a handcomp:
Approximately the size & WEIGHT of a legal pad. If you've ever tried to use a tablet you realize that this is a major issue in usability. A 3-5 lb tablet doesn't sound so bad until you have to lug it around thru an entire trial (did it once - not happening again).
Folds open to have two panels.
The panels use e-ink and are not illuminated unless operator chooses to (this should save a lot of wear and tear on the eyes) & yes, I do realize that e-ink needs improvement
A slot for an SD memory card in order to import and export files / programs
Touch controls which work both with finger and stylus
Approxiamately the innards you'd find in a basic netbook: atom processor, 1 gb memory, at least 40 gb storage - in order to do this solid state storage will probably need to be made affordable and used
A very simple operating system. Nobody has to get too fancy here. Palm's old system worked wonderfully. Maybe something like a modified version of jolicloud. BTW, I can't speak too highly of jolicloud's operating system and have it now on my personal Acer portable and my work Gateway portable. It's amazingly easy to use and pretty much idiot proof.
The ability to send notes which I have written to another person via some sort of IMish function. This would be a great way to write notes freehand to send (as opposed to texting) or even to send handwriting to a secretary to be typed up.
An audio recorder. If Creative can fit a recorder in a Zen the size of a credit card they can get on in this.
I'm sure I'll think of something else later, but for now, that's my perfect handcomp.
I've been watching the handheld computer market for a while now and this form factor is an innovative idea which I think merits consideration and imitation. Of late, the real innovations in handcomps have been on the ereader branch, so it's good to see innovation from the tablet side.
This solves one of the biggest problems with tablets: how to view a document and take notes on it using the same computer. Sure, there were workarounds. Some split the top and bottom half of the screen; some made the original document smaller. None were really satisfactory. Now a document can be on one panel and you can be taking notes on the other.
Nevertheless, I suspect that this will not become the tablet which launches thousands. Why? Because they will try to do too much and be too fancy and they probably still haven't solved the weight problem. Companies need to concentrate on making this (and any other tablet) into a replacement for a legal pad, files, and books. They need to concentrate on doing this well and getting the price as low as possible - down to the price level of netbooks or what good PDA's used to cost.
Just imagine being able to go to court with a handcomp the size of a legal pad containing all your files and notes (because you save them electronically as soon as you make them), complete copies of all the statutes and cases (for every US jurisdiction), and all the secondary treatises on evidence, procedure and law. It's not here yet, but, God willing, sometime soon.
Here's what I want in a handcomp:
Approximately the size & WEIGHT of a legal pad. If you've ever tried to use a tablet you realize that this is a major issue in usability. A 3-5 lb tablet doesn't sound so bad until you have to lug it around thru an entire trial (did it once - not happening again).
Folds open to have two panels.
The panels use e-ink and are not illuminated unless operator chooses to (this should save a lot of wear and tear on the eyes) & yes, I do realize that e-ink needs improvement
A slot for an SD memory card in order to import and export files / programs
Touch controls which work both with finger and stylus
Approxiamately the innards you'd find in a basic netbook: atom processor, 1 gb memory, at least 40 gb storage - in order to do this solid state storage will probably need to be made affordable and used
A very simple operating system. Nobody has to get too fancy here. Palm's old system worked wonderfully. Maybe something like a modified version of jolicloud. BTW, I can't speak too highly of jolicloud's operating system and have it now on my personal Acer portable and my work Gateway portable. It's amazingly easy to use and pretty much idiot proof.
The ability to send notes which I have written to another person via some sort of IMish function. This would be a great way to write notes freehand to send (as opposed to texting) or even to send handwriting to a secretary to be typed up.
An audio recorder. If Creative can fit a recorder in a Zen the size of a credit card they can get on in this.
I'm sure I'll think of something else later, but for now, that's my perfect handcomp.
Friday, September 25, 2009
Reinharz Resigning (UPDATED)
Brandeis president Jehuda Reinharz is resigning at the end of the current academic year. The Boston Globe has the story here. The Globe says Reinharz "dismissed suggestions that he is resigning under pressure arising from the [Rose] museum controversy," but adds:
"Controversy over the museum erupted in January, when university officials announced plans to close its art museum and auction parts of its $350 million collection amid heavy investment losses and declining fund-raising. Facing withering criticism from faculty, alumni, and the art and philanthropic worlds, the university quickly pulled back, and Reinharz apologized, saying he 'screwed up.'"
UPDATE: Felix Salmon isn't buying the line that this has nothing to do with the Rose mess: "There’s certainly nothing in Reinharz’s stated reasons for his resignation ('It is now time for me to enter the next chapter of my professional life') which explains what has changed since a year ago, when Reinharz signed [a new] five-year contract."
"Controversy over the museum erupted in January, when university officials announced plans to close its art museum and auction parts of its $350 million collection amid heavy investment losses and declining fund-raising. Facing withering criticism from faculty, alumni, and the art and philanthropic worlds, the university quickly pulled back, and Reinharz apologized, saying he 'screwed up.'"
UPDATE: Felix Salmon isn't buying the line that this has nothing to do with the Rose mess: "There’s certainly nothing in Reinharz’s stated reasons for his resignation ('It is now time for me to enter the next chapter of my professional life') which explains what has changed since a year ago, when Reinharz signed [a new] five-year contract."
Census Worker Lynched in Clay County, Kentucky
Found hung with "Fed" written on his chest, but the FBI hasn't determined whether it was because of "anti-government sentiment."
Here's the AP video:
Here's the AP video:
Thursday, September 24, 2009
"The man then pointed a gun at the museum attendant while an accomplice went inside" (UPDATED 3X)
The NYT on a brazen morning theft of a Magritte from a Brussels museum today.
UPDATE: Richard Lacayo: "The Art Loss Register estimates the value of the paining at $1.1 million, though it's effective value right now is zero, because stolen paintings by famous names are almost impossible to sell, as the thieves will soon discover."
UPDATE 2: Once again, Derek Fincham takes us through the options. Loosely translated, they are basically: (1) the Dr. No scenario; (2) the thieves are pretty stupid; (3) a ransom play; and (4) the thieves are smarter than we think.
UPDATE 3: Mark Durney: "This art theft raises the question of whether or not museum gallery officers should be armed."
UPDATE: Richard Lacayo: "The Art Loss Register estimates the value of the paining at $1.1 million, though it's effective value right now is zero, because stolen paintings by famous names are almost impossible to sell, as the thieves will soon discover."
UPDATE 2: Once again, Derek Fincham takes us through the options. Loosely translated, they are basically: (1) the Dr. No scenario; (2) the thieves are pretty stupid; (3) a ransom play; and (4) the thieves are smarter than we think.
UPDATE 3: Mark Durney: "This art theft raises the question of whether or not museum gallery officers should be armed."
Wednesday, September 23, 2009
Back to Cleveland
Lawprof -- and native Clevelander -- Peter Friedman seconds my take on the Cleveland Museum matter:
"The CMA has used the doctrine of deviation in the past in a responsible way, and there’s no reason to think, given the obvious need even its critics acknowledge, that if it convinces the court to allow it, that the decision would be a precedent for museums everywhere suddenly to act irresponsibly. Nor should we make rules that don’t permit courts to look at individual cases and grant relief from restrictions that are no longer serving any useful purpose just because we’re afraid someone may try to get away with fooling a court into letting them act irresponsibly. As Zaretsky points out, those who fear that allowing the CMA to be released from the restrictions imposed on its use of certain funds because circumstances demand it would create a bad precedent are blind to the fact that the rules that allow precisely that have been around and worked well for a long time."
"The CMA has used the doctrine of deviation in the past in a responsible way, and there’s no reason to think, given the obvious need even its critics acknowledge, that if it convinces the court to allow it, that the decision would be a precedent for museums everywhere suddenly to act irresponsibly. Nor should we make rules that don’t permit courts to look at individual cases and grant relief from restrictions that are no longer serving any useful purpose just because we’re afraid someone may try to get away with fooling a court into letting them act irresponsibly. As Zaretsky points out, those who fear that allowing the CMA to be released from the restrictions imposed on its use of certain funds because circumstances demand it would create a bad precedent are blind to the fact that the rules that allow precisely that have been around and worked well for a long time."
Rose Report Reax
More reaction to the Future of the Rose Committee report.
The NYT's Randy Kennedy pulls out some choice bits, including:
"The committee ... added that [the Rose], 'like many of its fellow university museums, has been oriented too much towards the art world, and not enough towards the academy' and should become more integrated into the university’s educational mission"; and
"As for selling the works, the group wrote that it assumed that whatever decision the university made regarding such sales, there would 'remain a substantial collection of art to be preserved and made available for research, study, and cultivation.'"
Time's Richard Lacayo: "You have to wonder whether the recent upswing in the stock market — if it continues — may make the whole problem go away. Brandeis first announced the museum closing in late January, when the Dow was bobbling around in the 7000s .... This month it's nudging 10,000 again. ... Meanwhile the art market is still not exactly robust, so it remains a poor time to sell. Maybe everybody should just take a deep breath and wait to see whether and by how much the market continues to improve."
And the LAT's Christopher Knight: "The university's administration had long since backtracked on quick implementation of the cataclysmic scheme, approved by trustees last January following a precipitous drop in the school's endowment funds. ... Now, the Brandeis administration's handpicked committee charged with thinking hard about the future of the Rose has essentially put the backtrack in writing. Imagine my surprise."
The NYT's Randy Kennedy pulls out some choice bits, including:
"The committee ... added that [the Rose], 'like many of its fellow university museums, has been oriented too much towards the art world, and not enough towards the academy' and should become more integrated into the university’s educational mission"; and
"As for selling the works, the group wrote that it assumed that whatever decision the university made regarding such sales, there would 'remain a substantial collection of art to be preserved and made available for research, study, and cultivation.'"
Time's Richard Lacayo: "You have to wonder whether the recent upswing in the stock market — if it continues — may make the whole problem go away. Brandeis first announced the museum closing in late January, when the Dow was bobbling around in the 7000s .... This month it's nudging 10,000 again. ... Meanwhile the art market is still not exactly robust, so it remains a poor time to sell. Maybe everybody should just take a deep breath and wait to see whether and by how much the market continues to improve."
And the LAT's Christopher Knight: "The university's administration had long since backtracked on quick implementation of the cataclysmic scheme, approved by trustees last January following a precipitous drop in the school's endowment funds. ... Now, the Brandeis administration's handpicked committee charged with thinking hard about the future of the Rose has essentially put the backtrack in writing. Imagine my surprise."
Kahlo Criminal Investigation
Tuesday, September 22, 2009
WE DEMAND THAT YOU NOT CLOSE THE MUSEUM YOU ARE NOT CLOSING
The Future of the Rose Committee has issued its final report. The report is here. Boston Globe story here. People seem disappointed that the report takes no position on the potential sale of art, but, in its interim report this spring, the committee made it very clear that it would offer no opinion on that issue.
One of the report's two "central recommendations" is that "the Rose Art Museum remain the Rose Art Museum. It should remain what it is and what it has been since its beginnings: a university art museum open to the public." It recommends that the university "communicate as loudly, clearly, as often, and in as many ways as possible that the Rose is not closing" (emphasis added). It says "the Provost's interim staffing announcement on April 17, 2009 affirmed the University's intention to maintain the Rose as a museum open to the public" and that "other University announcements have reaffirmed this commitment" (my emphases again).
Not everyone's gotten the message, however. As we've seen, there is a lawsuit out there seeking an "Order declaring that Brandeis may not close the Rose Art Museum."
One of the report's two "central recommendations" is that "the Rose Art Museum remain the Rose Art Museum. It should remain what it is and what it has been since its beginnings: a university art museum open to the public." It recommends that the university "communicate as loudly, clearly, as often, and in as many ways as possible that the Rose is not closing" (emphasis added). It says "the Provost's interim staffing announcement on April 17, 2009 affirmed the University's intention to maintain the Rose as a museum open to the public" and that "other University announcements have reaffirmed this commitment" (my emphases again).
Not everyone's gotten the message, however. As we've seen, there is a lawsuit out there seeking an "Order declaring that Brandeis may not close the Rose Art Museum."
Monday, September 21, 2009
"Shouldn't these works be made available to people all over the world who want to see them?"
Writing about The Art of the Steal, the Toronto Star's Martin Knelman puts himself "squarely on the side of the bad guys":
"The audience may enjoy buying into the one-sided account offered in the film, which seduces us by offering a kind of Frank Capra melodrama in which money-grubbing philistines defeat pure-hearted art lovers who wish to honour the memory of Barnes (who died in a car crash in 1951). And so we are presented with a nasty group of Philadelphia power brokers ganging up to snatch the paintings away from the true followers of the Barnes vision in Merion. I might have been seduced by this version of events had I not had a chance to see the Barnes Collection at its original home in Merion last year. My conclusion: In Merion there are so many obstacles that only a tiny portion of the people who would enjoy this experience can do so. A major flaw of the movie is that it doesn't give a fair presentation of the very strong case for the move to downtown Philadelphia – where, incidentally, the conditions of the Merion site will be exactly recreated, so that the paintings will hang just the way Barnes specified. In my view, it's entirely plausible that some of the people involved in orchestrating the move are tainted by the Philly cultural world's history of back-room deals, influence peddling and dirty tricks. Perhaps you could even say that Philadelphia's super-rich, too used to getting their way, trample on anyone who dares to get in their way. Nevertheless, in the case of the Barnes collection, moving it downtown is the only solution that makes sense. The residents of Merion don't want hordes of visitors who bring traffic and parking problems. The upshot: access is so limited that most give up trying to get in. Instead of being savoured only by privileged local residents, teachers and former students of Barnes, shouldn't these works be made available to people all over the world who want to see them?"
Philadelphia Inquirer movie critic Stephen Rea, on the other hand, says the filmmaker makes "a persuasive case" that a "circle of Philadelphia movers and shakers ... orchestrated the Barnes' move from leafy Latchs Lane to new digs just blocks from the Philadelphia Museum of Art" (though he does add that the "film also touches on an inherent problem with the Friends of the Barnes' keep-it-in-Merion movement - namely, that after years of the Barnes' being a jewel-box museum with a severely restrictive admissions policy, its doors were opened in an effort to raise much-needed cash. Tour buses and cars started rolling up and down the street, and the neighbors were not pleased. In some ways, the NIMBY-ism of Merion residents served as a catalyst to decamp the Barnes").
O'Keeffe Appeal
Sunday, September 20, 2009
Why do people become prosecutors?
From D.A.: Prosecutors in Their Own Words by Mark Baker:
"As one former prosecutor who is now a judge reasoned at the beginning of her career, 'I figured as a D.A., if you did your job and the person was guilty, the person went to jail. If you did a bad job and the person was guilty, the person got off. However, if you were in Legal Aid and you did a bad job, somebody went to jail. I figured it wasn't a good idea to represent people and risk them going to jail because of my inexperience.'"
"As one former prosecutor who is now a judge reasoned at the beginning of her career, 'I figured as a D.A., if you did your job and the person was guilty, the person went to jail. If you did a bad job and the person was guilty, the person got off. However, if you were in Legal Aid and you did a bad job, somebody went to jail. I figured it wasn't a good idea to represent people and risk them going to jail because of my inexperience.'"
The Kindle, Books, and Record Albums
Scott, who has previously wondered why people would waste money on a Kindle DX, is now singing the praises of books rather than soulless electronics. After reading it, I recognized an argument I'd heard before.
You see, once upon a time there were these sound playback devices called "record albums." Those of you younger than 30 may never have seen one of these. They were discs with several songs scratched onto them which were played by putting a needle on the disc while it rotated. They also came with album covers which provided protection and art. Records were first challenged by 8-tracks, which allowed ease in choosing which included song listened to and were less vulnerable to damage. Then came cassette tapes, which were easier to carry, less vulnerable to damage, and allowed listeners to record their own music. Then came compact discs which offered more space for songs in a smaller format with the ability to easily choose a track and sounded almost as good as records. These killed records. In turn, they are now in the process of being killed by mp3's.
Your record collection told people who you were. People would browse through your collection and you'd even set your most impressive albums (in their covers) out for people to see. If you had the original White Album people would be jealous. If you had a cutting edge comedian like Bob Newhart you showed you were hip. Yet, despite the resistance of music companies and the howls from audiophiles, it all passed because new technologies just provided too much of an advantage to users.
Mass printed books have been around for about 550 years. They aren't about to disappear overnight. However, we've already passed the point where records were when 8-tracks came into existence. Devices such as Palm PDA's and Apple's iPhone have provided ebook reading experiences which are convenient, but neither practical or satisfying because of their size. Reading on a regular computer ties you to a desk or a slightly less inconvenient portable computer. Tablet computers seemed to be the solution, but they have never gotten light enough nor achieved sufficient battery life (I don't know about ya'll, but I can read for more than a couple hours at a sitting). Additionally, unlike ereaders, reading from a computer screen tends to tire the eyes much more than reading from paper.
Nevertheless, publishers are almost all coming around to offering ebooks. A very incomplete list would include firms such as Penguin, Random House, HarperCollins, Simon & Schuster, and Baen. They're not going there because they want to; they are providing ebooks because they've seen the future.
Ebooks are the future. As they stand now they are just short of the slot cassette tapes filled in competition with records. Their practicality and convenience isn't quite to the place that it can replace books completely, but the primary reason that they haven't made huge inroads yet is that the companies selling them are charging too much. Thus they remain an item restricted to those with large amounts of disposable income.
Mind you, I don't think that ereaders will completely drive all books from the field. For professionals and students something like a Kindle DX with an ability to write notes on and save (as though writing in the margins of a text book or taking notes in a case file) should become somewhat normative. Just imagine having all your case files in an ereader with you when the judge or another attorney or your client finds you in the courthouse and starts asking you about some case a month down the road; 10 seconds later you're looking at the file and can answer secure in the knowledge that you're not confusing the Smith case with the Smyth case. Newspapers and magazines are hopeful about this format, but I think this is something of a pipe dream because for a large ereader to be the format used for daily, weekly, or even monthly publications it would have to be cheaper than the smaller ereaders and I just don't see that happening.
On the other hand, low end, smaller ereaders will probably take the place of paperback books. To be honest, if the companies can get us all switched to ebooks rather than paperbacks they can sell the book for less and make more profit. Let's face it, they are currently selling us ebooks which they print out in order to sell them to us. If they can cut out the costs of paper, ink, and the brick&mortar's share of the sale, profit will be almost 100%.
Yet, I believe that books will remain. For one thing, people don't really buy hardback books to read. They buy hardback books because they want to save them, display them, impress others with them. The hardback books you buy and put on display are more important as signalers. They lend atmosphere and let people know who you are (at least who you want them to think you are). For another, ereaders will always be too expensive for some. My thoughts are that the small ereaders need to be under $100 and the large ones need to be somewhere under $250 if they are going to draw customers below the upper middle class. They'll probably also have to improve their graphics to the point that People magazine, etc. could be displayed in full color. Even then, there will be those who cannot afford them. For them some sort of books, newspapers, and magazines will remain. I hope.
Of course, none of this is going to happen tomorrow, or even next week. This is something which will happen in the fullness of time. I look for universities requiring their students to have ereaders to buy and load text books on, as the probable major sign that ereaders have taken the lead over mass market books and I've yet to hear of any doing this so far. I think we may see it in the next ten years.
As for me? Well, I don't own an ereader yet. If I had the money I'd probably be eyeing the Sony ereaders (particularly the PRS_900BC due in December). I want one, but the price point just isn't reasonable enough yet for me to rationalize that I'll save (in the long run) by purchasing an ereader so I can populate it with ebooks which cost less than the books I'd buy otherwise.
You see, once upon a time there were these sound playback devices called "record albums." Those of you younger than 30 may never have seen one of these. They were discs with several songs scratched onto them which were played by putting a needle on the disc while it rotated. They also came with album covers which provided protection and art. Records were first challenged by 8-tracks, which allowed ease in choosing which included song listened to and were less vulnerable to damage. Then came cassette tapes, which were easier to carry, less vulnerable to damage, and allowed listeners to record their own music. Then came compact discs which offered more space for songs in a smaller format with the ability to easily choose a track and sounded almost as good as records. These killed records. In turn, they are now in the process of being killed by mp3's.
Your record collection told people who you were. People would browse through your collection and you'd even set your most impressive albums (in their covers) out for people to see. If you had the original White Album people would be jealous. If you had a cutting edge comedian like Bob Newhart you showed you were hip. Yet, despite the resistance of music companies and the howls from audiophiles, it all passed because new technologies just provided too much of an advantage to users.
Mass printed books have been around for about 550 years. They aren't about to disappear overnight. However, we've already passed the point where records were when 8-tracks came into existence. Devices such as Palm PDA's and Apple's iPhone have provided ebook reading experiences which are convenient, but neither practical or satisfying because of their size. Reading on a regular computer ties you to a desk or a slightly less inconvenient portable computer. Tablet computers seemed to be the solution, but they have never gotten light enough nor achieved sufficient battery life (I don't know about ya'll, but I can read for more than a couple hours at a sitting). Additionally, unlike ereaders, reading from a computer screen tends to tire the eyes much more than reading from paper.
Nevertheless, publishers are almost all coming around to offering ebooks. A very incomplete list would include firms such as Penguin, Random House, HarperCollins, Simon & Schuster, and Baen. They're not going there because they want to; they are providing ebooks because they've seen the future.
Ebooks are the future. As they stand now they are just short of the slot cassette tapes filled in competition with records. Their practicality and convenience isn't quite to the place that it can replace books completely, but the primary reason that they haven't made huge inroads yet is that the companies selling them are charging too much. Thus they remain an item restricted to those with large amounts of disposable income.
Mind you, I don't think that ereaders will completely drive all books from the field. For professionals and students something like a Kindle DX with an ability to write notes on and save (as though writing in the margins of a text book or taking notes in a case file) should become somewhat normative. Just imagine having all your case files in an ereader with you when the judge or another attorney or your client finds you in the courthouse and starts asking you about some case a month down the road; 10 seconds later you're looking at the file and can answer secure in the knowledge that you're not confusing the Smith case with the Smyth case. Newspapers and magazines are hopeful about this format, but I think this is something of a pipe dream because for a large ereader to be the format used for daily, weekly, or even monthly publications it would have to be cheaper than the smaller ereaders and I just don't see that happening.
On the other hand, low end, smaller ereaders will probably take the place of paperback books. To be honest, if the companies can get us all switched to ebooks rather than paperbacks they can sell the book for less and make more profit. Let's face it, they are currently selling us ebooks which they print out in order to sell them to us. If they can cut out the costs of paper, ink, and the brick&mortar's share of the sale, profit will be almost 100%.
Yet, I believe that books will remain. For one thing, people don't really buy hardback books to read. They buy hardback books because they want to save them, display them, impress others with them. The hardback books you buy and put on display are more important as signalers. They lend atmosphere and let people know who you are (at least who you want them to think you are). For another, ereaders will always be too expensive for some. My thoughts are that the small ereaders need to be under $100 and the large ones need to be somewhere under $250 if they are going to draw customers below the upper middle class. They'll probably also have to improve their graphics to the point that People magazine, etc. could be displayed in full color. Even then, there will be those who cannot afford them. For them some sort of books, newspapers, and magazines will remain. I hope.
Of course, none of this is going to happen tomorrow, or even next week. This is something which will happen in the fullness of time. I look for universities requiring their students to have ereaders to buy and load text books on, as the probable major sign that ereaders have taken the lead over mass market books and I've yet to hear of any doing this so far. I think we may see it in the next ten years.
As for me? Well, I don't own an ereader yet. If I had the money I'd probably be eyeing the Sony ereaders (particularly the PRS_900BC due in December). I want one, but the price point just isn't reasonable enough yet for me to rationalize that I'll save (in the long run) by purchasing an ereader so I can populate it with ebooks which cost less than the books I'd buy otherwise.
Thursday, September 17, 2009
Hello Cleveland!
Eric Gibson had an interesting piece in the Wall Street Journal yesterday about the Cleveland Museum of Art's request for court permission to use certain acquisition-restricted funds for non-acquisition purposes (namely, to help complete its renovation/expansion).
He's generally sympathetic to the museum's position -- "Clearly the museum has to do something. Nobody could have anticipated the events of a year ago, and [the museum's director] and his colleagues make a compelling case that the museum has to move forward with its expansion plan rather than mark time" -- but he suggests an alternative solution:
"If these restricted funds are, indeed, the museum's only financing option, then treat them like an individual's 401k, a resource that can be tapped only under specific conditions, but can be borrowed from on occasion. In other words, the museum should announce that while it would still use the interest income from these restricted funds for ... its expansion plan, it would agree to repay that money over a set period of time once the building program was complete."
I want to focus on a different point, however. Gibson worries about "the precedent this could set": he says "you only have to look at how museums have played fast and loose with the deaccessioning rules over the past several years despite AAMD's restrictions to worry about what they might do if given an opening to finesse the rules governing restricted endowments" (my emphasis).
But the museum's actions here don't "give" anyone an opening. That opening already exists, and always has. The doctrine of deviation, upon which the museum relies, has been around forever. If the court grants the museum's application, it won't be creating an opening that other museums will then come rushing through, but allowing it to pass through an opening that was always there.
In fact, as I mentioned in an earlier post, an Ohio probate court already found that income from three of the four funds at issue in this case could be used to fund a previous expansion by the museum. So the "opening to finesse the rules" has existed for this very museum with respect to these very funds for more than 50 years. It seems safe to say they haven't exactly been abusing the privilege. Once again, the people who run our nation's museums are not naughty schoolchildren who need to be penned in by simple, black-and-white rules.
Lee Rosenbaum makes a similar point (similar to Gibson's, not to mine). "Cleveland's actions," she says, "unchecked, would set a dangerous precedent that could have a negative impact on future benefactions, just when museums need help the most." But again: Cleveland is not setting a precedent here, it's following one. Given the existence of the doctrine of deviation, no donor -- in any context -- can ever know with certainty that the terms of their gift will never be altered. Yet donations somehow continue to happen.
Consider, in this connection, the four funds involved in the Cleveland case. As I mentioned above, the probate court ruled in 1955 that income from three of those funds could be used to help complete an expansion of the museum. Among the museum trustees who (according to the museum's current board chairman) "encouraged the museum to go forward with its suit to use acquisition funds for the expansion" was one Leonard Hanna.
The donor of the fourth fund at issue in the current case? Leonard Hanna.
He's generally sympathetic to the museum's position -- "Clearly the museum has to do something. Nobody could have anticipated the events of a year ago, and [the museum's director] and his colleagues make a compelling case that the museum has to move forward with its expansion plan rather than mark time" -- but he suggests an alternative solution:
"If these restricted funds are, indeed, the museum's only financing option, then treat them like an individual's 401k, a resource that can be tapped only under specific conditions, but can be borrowed from on occasion. In other words, the museum should announce that while it would still use the interest income from these restricted funds for ... its expansion plan, it would agree to repay that money over a set period of time once the building program was complete."
I want to focus on a different point, however. Gibson worries about "the precedent this could set": he says "you only have to look at how museums have played fast and loose with the deaccessioning rules over the past several years despite AAMD's restrictions to worry about what they might do if given an opening to finesse the rules governing restricted endowments" (my emphasis).
But the museum's actions here don't "give" anyone an opening. That opening already exists, and always has. The doctrine of deviation, upon which the museum relies, has been around forever. If the court grants the museum's application, it won't be creating an opening that other museums will then come rushing through, but allowing it to pass through an opening that was always there.
In fact, as I mentioned in an earlier post, an Ohio probate court already found that income from three of the four funds at issue in this case could be used to fund a previous expansion by the museum. So the "opening to finesse the rules" has existed for this very museum with respect to these very funds for more than 50 years. It seems safe to say they haven't exactly been abusing the privilege. Once again, the people who run our nation's museums are not naughty schoolchildren who need to be penned in by simple, black-and-white rules.
Lee Rosenbaum makes a similar point (similar to Gibson's, not to mine). "Cleveland's actions," she says, "unchecked, would set a dangerous precedent that could have a negative impact on future benefactions, just when museums need help the most." But again: Cleveland is not setting a precedent here, it's following one. Given the existence of the doctrine of deviation, no donor -- in any context -- can ever know with certainty that the terms of their gift will never be altered. Yet donations somehow continue to happen.
Consider, in this connection, the four funds involved in the Cleveland case. As I mentioned above, the probate court ruled in 1955 that income from three of those funds could be used to help complete an expansion of the museum. Among the museum trustees who (according to the museum's current board chairman) "encouraged the museum to go forward with its suit to use acquisition funds for the expansion" was one Leonard Hanna.
The donor of the fourth fund at issue in the current case? Leonard Hanna.
Museum Director Charged
Newsday reports: "The former director of Long Island University's Hillwood Museum was arraigned on charges of stealing ancient Egyptian artifacts and lying to an FBI agent Wednesday in U.S. District Court in Central Islip." The Post goes with the headline: "LI's Pharaoh 'Phraudster.'"
Wednesday, September 16, 2009
Cut
The City of Long Beach followed through on its threat to cut funding of the Long Beach Museum of Art because of city "officials’ ire at having to pay off a $3.06-million bond that museum leaders had promised years ago to cover, but then failed to when their fund-raising campaign fizzled." The LAT's Mike Boehm has the story. The museum's director says "he now expects to enter negotiations with city administrators over the funding cut; the museum foundation’s operating agreement allows for 90 days of talks if funding is in dispute. If the sides can’t agree, the museum foundation has the right to end the agreement, which extends to 2025, take the 1,600 items it privately owns from the 3,000-piece collection, and leave the city to run what’s left of the museum on its own."
Tuesday, September 15, 2009
Larcenous Licentiousness
1) Beer's just not worth that much trouble.
2) Bus theft and slow speed pcp induced chase.
3) Not worth the time: stealing hot sauce and electrical tape.
4) The pink beanie thief.
5) "Did you hear about the identity thief in Seattle who tried to open a JC Penney credit card account with one of the very women whose identity she had stolen?"
6) Wow. Don't shoot at the tires of a fleeing thief in Missouri or you'll catch a felony charge and have your concealed weapon permit revoked.
7) Stole 6,000 gallons of gasoline in under 23 minutes. That's a talent better spent on NASCAR rather than thievery.
8) Credit card receipts.
9) ATM Machine stolen from inside the bank.
10) If you steal from the police, you will probably go to prison.
11) Don't bring your kid to work with you if you are a thief.
12) Is there a black market in stolen canaries?
2) Bus theft and slow speed pcp induced chase.
3) Not worth the time: stealing hot sauce and electrical tape.
4) The pink beanie thief.
5) "Did you hear about the identity thief in Seattle who tried to open a JC Penney credit card account with one of the very women whose identity she had stolen?"
6) Wow. Don't shoot at the tires of a fleeing thief in Missouri or you'll catch a felony charge and have your concealed weapon permit revoked.
7) Stole 6,000 gallons of gasoline in under 23 minutes. That's a talent better spent on NASCAR rather than thievery.
8) Credit card receipts.
9) ATM Machine stolen from inside the bank.
10) If you steal from the police, you will probably go to prison.
11) Don't bring your kid to work with you if you are a thief.
12) Is there a black market in stolen canaries?
Barnes Syllabus
Michael Rushton provides a list of readings to enrich your viewing experience of The Art of the Steal.
Can't Stand It
On my first review of the Rose suit against Brandeis, I said the issue of standing was "certainly going to be another problem for the plaintiffs ..., and perhaps a fatal one":
"In general, the enforcement of gifts to charities lies with the 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)."
Jack Siegel had a similar take.
Today, the Brandeis Justice's Alana Abramson reports that Brandeis has moved to dismiss on precisely those grounds. I had a chance to look at the motion papers, and the argument is very straightforward. "Time and again, Massachusetts courts and the Legislature have rejected the notion that donors or their heirs have standing ... to enforce their vision of how a charitable organization should operate. The authority to supervise charities in this way is reserved exclusively to the Attorney General." The plaintiffs here have "no standing to represent the public interest" or "the presumed wishes of other donors." At most, if they have any standing at all, "it is limited to contract-like claims with respect to their individual gifts" (p. 8).
Expanding a bit on the latter point, the university says that "donors may have rights ... to seek a return of their gifts, but this right is quite different from the power reserved to the Attorney General. A donor's reversionary right to his gift exists, if at all, for his particular gift. It does not entitle the donor to insert himself into the governance of the charity" (p. 11).
Strictly speaking, the motion does not (at this point) seek dismissal of the entire complaint. Instead, it requests dismissal of all claims "except insofar as they allege claims with respect to [these four plaintiffs'] own individual gifts" (p. 20). But as a practical matter, the granting of the motion would mean the end of the claims seeking to prevent the "closing" of the Rose and the sale of "any artwork."
"In general, the enforcement of gifts to charities lies with the 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)."
Jack Siegel had a similar take.
Today, the Brandeis Justice's Alana Abramson reports that Brandeis has moved to dismiss on precisely those grounds. I had a chance to look at the motion papers, and the argument is very straightforward. "Time and again, Massachusetts courts and the Legislature have rejected the notion that donors or their heirs have standing ... to enforce their vision of how a charitable organization should operate. The authority to supervise charities in this way is reserved exclusively to the Attorney General." The plaintiffs here have "no standing to represent the public interest" or "the presumed wishes of other donors." At most, if they have any standing at all, "it is limited to contract-like claims with respect to their individual gifts" (p. 8).
Expanding a bit on the latter point, the university says that "donors may have rights ... to seek a return of their gifts, but this right is quite different from the power reserved to the Attorney General. A donor's reversionary right to his gift exists, if at all, for his particular gift. It does not entitle the donor to insert himself into the governance of the charity" (p. 11).
Strictly speaking, the motion does not (at this point) seek dismissal of the entire complaint. Instead, it requests dismissal of all claims "except insofar as they allege claims with respect to [these four plaintiffs'] own individual gifts" (p. 20). But as a practical matter, the granting of the motion would mean the end of the claims seeking to prevent the "closing" of the Rose and the sale of "any artwork."
"Why is preserving every single object ever entrusted to it a higher priority than keeping the museum open?" (UPDATED)
Massachusetts attorney Mark Gold (who also has a master's in museum studies from Harvard) has a piece in the Sept.-Oct. issue of Museum magazine entitled "Nothing Ethical About It." The "it" in question is the "ethical rule adopted by AAM in 1991 [that] limits the use of proceeds from deaccessioning to acquisitions and the direct care of the collection." The piece is not online, but is worth seeking out. An excerpt:
"The role of the museums as stewards of our cultural and historical legacy is undisputed and deserves the great respect it enjoys. But a balancing of priorities is in order -- placing the viability of the museum and its programs on at least an equal footing with the collection. Why not make it ethical for a museum to weigh priorities and make difficult choices without fear of condemnation and ostracism?"
UPDATE: The piece is now online. See here.
"The role of the museums as stewards of our cultural and historical legacy is undisputed and deserves the great respect it enjoys. But a balancing of priorities is in order -- placing the viability of the museum and its programs on at least an equal footing with the collection. Why not make it ethical for a museum to weigh priorities and make difficult choices without fear of condemnation and ostracism?"
UPDATE: The piece is now online. See here.
Long Beach Latest
The LAT's Mike Boehm has the latest on the Long Beach Museum of Art bond saga. The museum's facing a $400,000 cut in city funding for failing to pay off a $3 million bond the city says it promised to pay. "Whether the museum can sustain a $400,000 cut without having to lay off employees and close a second day a week could depend on whether donors are able to ramp up their gifts to offset the loss, Ronald Nelson, the museum's executive director, said today."
Monday, September 14, 2009
Wildflowers Oral Argument
"The film is sharp in every way, from the crisp visuals to the brisk editing and lively musical backgrounding"
"The Art of the Steal" gets a nice review in Variety.
The Art Market Monitor points out that "there remains a fundamental conflict between the emphasis on art as being held in the public trust and honoring donor intent." Indeed. Suppose I donate a painting to a museum and expressly stipulate that it is my intent that the work be exhibited for exactly 10 years and then sold, and that I further intend that the sales proceeds be used to (as the anti-deaccessionists like to say) "pay the electric bills." What then? Is the intent of the donor enough to trump the public trust? (Not a very robust conception of the public trust then, is it?) Not to mention that the Barnes Collection will remain in the public trust (and, if you measure by the number of people who will get to see it, will be even more in the public trust than it was before).
Of course, as I've argued before, a little bit of deaccessioning (just a smidgen, really) could have saved the Barnes.
The Art Market Monitor points out that "there remains a fundamental conflict between the emphasis on art as being held in the public trust and honoring donor intent." Indeed. Suppose I donate a painting to a museum and expressly stipulate that it is my intent that the work be exhibited for exactly 10 years and then sold, and that I further intend that the sales proceeds be used to (as the anti-deaccessionists like to say) "pay the electric bills." What then? Is the intent of the donor enough to trump the public trust? (Not a very robust conception of the public trust then, is it?) Not to mention that the Barnes Collection will remain in the public trust (and, if you measure by the number of people who will get to see it, will be even more in the public trust than it was before).
Of course, as I've argued before, a little bit of deaccessioning (just a smidgen, really) could have saved the Barnes.
"Is Batson a Chagall charlatan and a Picasso purloiner, or is there another explanation?"
ARTINFO.com reports on a lawsuit against a Florida dealer.
"Why not let the market work?"
IP lawyer Ben Sheffner on Shepard Fairey v. the AP:
"I'm still clinging to my tentative conclusion that whatever Fairey copied was the unprotectable 'fact' of Obama's face (which of course would render the fair use analysis unnecessary). But I think this is a hard case, and I remain persuadable. ... [C]opyright in photographs presents some very difficult conceptual questions of how to separate idea and fact from expression. See, e.g., the Ninth Circuit's two opinions in Ets-Hokin v. Skyy Spirits, here and here. It may seem anomalous, but I think Fairey is actually on stronger ground with an 'I didn't copy protectable expression' argument than with a fair use defense. Assuming arguendo that he did copy the AP's (or Garcia's) protectable expression, I'm not terribly sympathetic with a fair use argument here. Yes, he added to the political discourse. But that's not an unlimited license to infringe. There's a vibrant market for licensing AP photos, and (though I may have missed it), I haven't read anything suggesting that the AP (or Garcia) wouldn't have granted Fairey a license at a reasonable price. This is not an example of criticism or parody, where the copyright owner wouldn't grant a license for mockery of his work at any price. Why not let the market work?"
"I'm still clinging to my tentative conclusion that whatever Fairey copied was the unprotectable 'fact' of Obama's face (which of course would render the fair use analysis unnecessary). But I think this is a hard case, and I remain persuadable. ... [C]opyright in photographs presents some very difficult conceptual questions of how to separate idea and fact from expression. See, e.g., the Ninth Circuit's two opinions in Ets-Hokin v. Skyy Spirits, here and here. It may seem anomalous, but I think Fairey is actually on stronger ground with an 'I didn't copy protectable expression' argument than with a fair use defense. Assuming arguendo that he did copy the AP's (or Garcia's) protectable expression, I'm not terribly sympathetic with a fair use argument here. Yes, he added to the political discourse. But that's not an unlimited license to infringe. There's a vibrant market for licensing AP photos, and (though I may have missed it), I haven't read anything suggesting that the AP (or Garcia) wouldn't have granted Fairey a license at a reasonable price. This is not an example of criticism or parody, where the copyright owner wouldn't grant a license for mockery of his work at any price. Why not let the market work?"
Splitting the Magistrate Baby
In Virginia there is a judicial officer known as a magistrate. Magistrates are the guys who are on duty 24 hours a day and their primary job is to decide whether there is probable cause to issue a warrant and set initial bonds (19.2-45). Not only LEO's can go to the magistrate; regular citizens can go and try to get a warrant issued all on their own. The store which gets 30 bad checks a month can go get its own warrants directly, saving us all time. As well, regular citizens can go in and try to get warrants for things such as trespass or assault. Of course, this has made the magistrates the center of a lot of complaints over the years.
There are citizens who blatantly abuse the process, and get all sorts of marginal warrants filed. A favorite trick is for a defendant to get a warrant served on her and immediately go to the magistrate and file charges against the complaining witness. Then there's always forgetful Mammaw Smith from up the hollow who files trespassing charges on Bob Jones every 6 months for trespassing on her family's land, despite the fact that her son sold Jones the property 10 years ago. And it seems that every nasty divorce spawns charges, counter-charges, and more charges.
There isn't a criminal attorney, prosecution or defense, who hasn't stood in court wondering how in the world Mammaw Smith got yet another warrant sworn against poor Bob. Judges get angry because they issue capiases (bench warrants) because Defendant hasn't come to court for his last three court dates and the magistrate keeps giving Defendant bond - after which she again does not show up for court. LEO's and prosecutors get upset because sometimes the magistrates seem not to understand nuances in the law.1
This is not to say that the rest of us in the crimlaw community haven't taken advantage of the magistrates. Magistrates save judges from being called at 2 a.m. to issue a warrant. They keep prosecutors' offices from being swamped with deciding the merit of minor charges. As well, every officer and prosecutor has told a person who absolutely refuses to take "No, I'm not going file charges" some variation on the following: "Mrs. McGillicutty, I'm not going to file charges on your son-in-law for putting your 22 year old cat to sleep after it got hit by a car. If you want, it is your right go to the magistrate yourself and see if he'll give you a warrant."
In any event, there has been a perception since I've been practicing that the magistrate system needs fixing. With that in mind, it's not too surprising that in the last few years the General Assembly has taken to tinkering with the magistrate offices. It began by taking the power to appoint magistrates away from the chief judge of the circuit and giving the power to the Virginia Supreme Court.2 Then, last year, the General Assembly passed laws requiring the chief magistrate to be a lawyer3 and the other magistrates to have a bachelor's degree.
The latest change took place this year, when the General Assembly changed the law so that magistrates have to "consult" with a prosecutor or LEO before issuing a felony warrant. When initially presented to the House and Senate the bill required the magistrate to get "authorization" from a prosecutor or LEO. Somehow that language got changed between presentation and passage.
Rather than leaving the situation the way it was or requiring that LEO's investigate or prosecutors approve all felonies from the beginning the General Assembly split the baby. Basically, it told the magistrates that they weren't trusted to show proper judgment in issuing felony warrants, but that it wasn't going to take the power away from them. It was just going to make it a little less convenient for them to exercise the power. They'd have to make a phone call. After the phone call they could ignore everything a prosecutor or LEO said, but they did have to make the call.
I'd be *annoyed* if someone did that to me and I imagine the magistrates were. However, after an initial bit of confusion it has all settled out. Now, the magistrates do exactly as they did before, except that they call a prosecutor who knows nothing about the case, hasn't seen any evidence, and can't even judge the credibility of the complaining witnesses thru the phone and tell him that they are going to swear out a warrant. Not sure that accomplishes a whole lot.
Personally, I'm not sure that consulting with or even calling to get authorization from a prosecutor accomplishes much. However, I do wish that felonies would require investigation by an officer - at least for warrants on violent felonies. Not so much because I think that the magistrate isn't capable of making the call, but rather because the officers usually have a good idea who needs to be subpoenaed and what evidence is needed for the trial. Citizens who swear out a warrant almost never understand these things and are unreachable until they show up in court on the date the magistrate has scheduled them to be in general district court.
--------------------
1 The issue which comes to mind is the Obstruction of Justice statute. This statute was used as the Virginia version of what other States might call "resisting arrest", but in Jordan the Virginia Supreme Court basically ruled that the Defendant had to succeed in stopping a charge from going forward to constitute obstruction. The solution is easy - the offender should be charged with Attempting to Obstruct Justice, which carries exactly the same penalty (18.2-27). However, people keep getting charged with Obstruction and LEO's say that they can't get magistrates to approve misdemeanor attempt charges.
2 I'm not sure what the rationale for this change was. It would seem desirable to have the local chief judge have the control to set consistent policies and legal interpretations within a circuit.
3 It will be interesting to see which lawyers fill these slots once the current, grandfathered chief magistrates leave. Ideally, the slots would go to attorneys who have spent years concentrating their practice on criminal law. However, there is some concern that the Supreme Court will have to beat the bushes to fill these slots and be forced to fill them with lawyers with little criminal law experience.
There are citizens who blatantly abuse the process, and get all sorts of marginal warrants filed. A favorite trick is for a defendant to get a warrant served on her and immediately go to the magistrate and file charges against the complaining witness. Then there's always forgetful Mammaw Smith from up the hollow who files trespassing charges on Bob Jones every 6 months for trespassing on her family's land, despite the fact that her son sold Jones the property 10 years ago. And it seems that every nasty divorce spawns charges, counter-charges, and more charges.
There isn't a criminal attorney, prosecution or defense, who hasn't stood in court wondering how in the world Mammaw Smith got yet another warrant sworn against poor Bob. Judges get angry because they issue capiases (bench warrants) because Defendant hasn't come to court for his last three court dates and the magistrate keeps giving Defendant bond - after which she again does not show up for court. LEO's and prosecutors get upset because sometimes the magistrates seem not to understand nuances in the law.1
This is not to say that the rest of us in the crimlaw community haven't taken advantage of the magistrates. Magistrates save judges from being called at 2 a.m. to issue a warrant. They keep prosecutors' offices from being swamped with deciding the merit of minor charges. As well, every officer and prosecutor has told a person who absolutely refuses to take "No, I'm not going file charges" some variation on the following: "Mrs. McGillicutty, I'm not going to file charges on your son-in-law for putting your 22 year old cat to sleep after it got hit by a car. If you want, it is your right go to the magistrate yourself and see if he'll give you a warrant."
In any event, there has been a perception since I've been practicing that the magistrate system needs fixing. With that in mind, it's not too surprising that in the last few years the General Assembly has taken to tinkering with the magistrate offices. It began by taking the power to appoint magistrates away from the chief judge of the circuit and giving the power to the Virginia Supreme Court.2 Then, last year, the General Assembly passed laws requiring the chief magistrate to be a lawyer3 and the other magistrates to have a bachelor's degree.
The latest change took place this year, when the General Assembly changed the law so that magistrates have to "consult" with a prosecutor or LEO before issuing a felony warrant. When initially presented to the House and Senate the bill required the magistrate to get "authorization" from a prosecutor or LEO. Somehow that language got changed between presentation and passage.
Rather than leaving the situation the way it was or requiring that LEO's investigate or prosecutors approve all felonies from the beginning the General Assembly split the baby. Basically, it told the magistrates that they weren't trusted to show proper judgment in issuing felony warrants, but that it wasn't going to take the power away from them. It was just going to make it a little less convenient for them to exercise the power. They'd have to make a phone call. After the phone call they could ignore everything a prosecutor or LEO said, but they did have to make the call.
I'd be *annoyed* if someone did that to me and I imagine the magistrates were. However, after an initial bit of confusion it has all settled out. Now, the magistrates do exactly as they did before, except that they call a prosecutor who knows nothing about the case, hasn't seen any evidence, and can't even judge the credibility of the complaining witnesses thru the phone and tell him that they are going to swear out a warrant. Not sure that accomplishes a whole lot.
Personally, I'm not sure that consulting with or even calling to get authorization from a prosecutor accomplishes much. However, I do wish that felonies would require investigation by an officer - at least for warrants on violent felonies. Not so much because I think that the magistrate isn't capable of making the call, but rather because the officers usually have a good idea who needs to be subpoenaed and what evidence is needed for the trial. Citizens who swear out a warrant almost never understand these things and are unreachable until they show up in court on the date the magistrate has scheduled them to be in general district court.
--------------------
1 The issue which comes to mind is the Obstruction of Justice statute. This statute was used as the Virginia version of what other States might call "resisting arrest", but in Jordan the Virginia Supreme Court basically ruled that the Defendant had to succeed in stopping a charge from going forward to constitute obstruction. The solution is easy - the offender should be charged with Attempting to Obstruct Justice, which carries exactly the same penalty (18.2-27). However, people keep getting charged with Obstruction and LEO's say that they can't get magistrates to approve misdemeanor attempt charges.
2 I'm not sure what the rationale for this change was. It would seem desirable to have the local chief judge have the control to set consistent policies and legal interpretations within a circuit.
3 It will be interesting to see which lawyers fill these slots once the current, grandfathered chief magistrates leave. Ideally, the slots would go to attorneys who have spent years concentrating their practice on criminal law. However, there is some concern that the Supreme Court will have to beat the bushes to fill these slots and be forced to fill them with lawyers with little criminal law experience.
Sunday, September 13, 2009
More on the Warhol Theft
Carol Vogel and Solomon Moore have more in today's New York Times on last week's Los Angeles Warhol theft. The collector is offering a $1 million reward for information leading to the paintings' recovery. They quote Tobias Meyer of Sotheby’s as saying: "Stealing Warhols is a very bad idea. The art world has become so transparent, and all these works are so traceable, ultimately they become an untradeable asset."
Noah Charney thinks the works were probably stolen for the reward money:
"The most probable outcome of this situation is that a 'well-meaning' informant will call in a lead that will bring police to the stolen art. Once the art is recovered, the good samaritan will be paid the reward. Likely in cases such as this, the call that leads to the recovery of the art will come from a colleague of the thieves. The reward will therefore be distributed among the thieves via the informant. For a few hours’ legwork, the thieves will have stolen art, abandoned it, had a colleague call in the location to the police, retrieve the reward, and pocket it."
Noah Charney thinks the works were probably stolen for the reward money:
"The most probable outcome of this situation is that a 'well-meaning' informant will call in a lead that will bring police to the stolen art. Once the art is recovered, the good samaritan will be paid the reward. Likely in cases such as this, the call that leads to the recovery of the art will come from a colleague of the thieves. The reward will therefore be distributed among the thieves via the informant. For a few hours’ legwork, the thieves will have stolen art, abandoned it, had a colleague call in the location to the police, retrieve the reward, and pocket it."
Saturday, September 12, 2009
"Look around and you see galleries struggling, museums cutting staff, universities reducing art resources and nonprofits treading water"
Holland Cotter refers to "Brandeis University’s disgraceful effort to dismantle its Rose Art Museum" and "the recent threat by the University of California, Los Angeles, to close its art library" and asks:
"What can universities be thinking? They exist to support and protect exactly what their museums are doing: shaping the history of the future. If they shut down such training facilities, they shut down the future. If they shut down the future, they violate their mission. And when they do that, my wish list turns into a demands lists, with one thing nonnegotiable: stop."
He also says "if you want to find innovative models for small-scale shows with big ideas, teaching institutions are still the place to look, particularly university art museums. This is where spadework research is being done, and where young curators are learning to create, experimentally, visions of history through objects."
And my question, with respect to the Brandeis situation, is the same one I had when Cotter made a similar point back in February: why can't this be true of the new, "re-purposed" Rose? Why can't it be a place for small-scale shows with big ideas, a place where spadework research is done, and where young curators learn to create visions of history through objects?
"What can universities be thinking? They exist to support and protect exactly what their museums are doing: shaping the history of the future. If they shut down such training facilities, they shut down the future. If they shut down the future, they violate their mission. And when they do that, my wish list turns into a demands lists, with one thing nonnegotiable: stop."
He also says "if you want to find innovative models for small-scale shows with big ideas, teaching institutions are still the place to look, particularly university art museums. This is where spadework research is being done, and where young curators are learning to create, experimentally, visions of history through objects."
And my question, with respect to the Brandeis situation, is the same one I had when Cotter made a similar point back in February: why can't this be true of the new, "re-purposed" Rose? Why can't it be a place for small-scale shows with big ideas, a place where spadework research is done, and where young curators learn to create visions of history through objects?
Friday, September 11, 2009
"This was a very clean crime. For some reason they had an interest in this collection" (UPDATED 2X)
The New York Times reports that "a multimillion-dollar collection of artwork by Andy Warhol was stolen from the home of a wealthy art collector in West Los Angeles last week." There were "several other valuable works of art" in the home, but "none of those were disturbed," according to the police.
UPDATE: More from Art Theft Central.
UPDATE 2: Derek Fincham runs through the possibilities. Judith Dobrzynski has some background on the victimized collector.
UPDATE: More from Art Theft Central.
UPDATE 2: Derek Fincham runs through the possibilities. Judith Dobrzynski has some background on the victimized collector.
Leibovitz Settlement (UPDATED)
Annie Leibovitz and Art Capital Group have resolved their dispute. The Art Market Monitor explains what happened.
UPDATE: Interesting point from Jim Johnson: "The editors at The Times finally have filed this story in the Arts section. This is a tale about the political economy of the photo industry and how treacherous that terrain can be. But the Arts and artists hardly stand aloof from such pressures and it is sheer ideology to present the world as though they do."
UPDATE: Interesting point from Jim Johnson: "The editors at The Times finally have filed this story in the Arts section. This is a tale about the political economy of the photo industry and how treacherous that terrain can be. But the Arts and artists hardly stand aloof from such pressures and it is sheer ideology to present the world as though they do."
"The entire work is about loss and memory"
Thursday, September 10, 2009
Roerich Arrest
The second stolen Roerich painting has been recovered, and a Brooklyn couple arrested after trying to sell it to an undercover police officer. The New York Post has the story here. New York magazine: "When Trying to Sell Your Stolen Painting, Leave Out the ‘Stolen’ Part." As they say, the easy part is stealing it; the hard part is selling it.
"Guaranteed to upset more than a few people on both sides of the Barnes battle"
Philadelphia Inquirer film critic Stephen Rea from the Toronto Film Festival:
"Of particular interest to Philadelphia-area residents, and art lovers the world over, is Don Argott's The Art of the Steal, a conspiracy theory-documentary about the Barnes collection and its controversial move from Merion to a new site on the Benjamin Franklin Parkway. ... It presents a strong case that a 'cabal' of Philadelphia power brokers past and present - including John Street, Ed Rendell, billionaire Raymond Perelman, the Pew Charitable Trusts' Rebecca Rimel, and the late publishing magnate Walter Annenberg - strategized to defy the last will and testament of billionaire collector Albert C. Barnes, ultimately succeeding in wresting hundreds of Cezannes, Matisses, Picassos, Renoirs, and van Goghs from the eccentric physician-turned-art educator's Foundation headquarters on leafy Latchs Lane to a new spot just blocks from the Philadelphia Museum of Art."
"Of particular interest to Philadelphia-area residents, and art lovers the world over, is Don Argott's The Art of the Steal, a conspiracy theory-documentary about the Barnes collection and its controversial move from Merion to a new site on the Benjamin Franklin Parkway. ... It presents a strong case that a 'cabal' of Philadelphia power brokers past and present - including John Street, Ed Rendell, billionaire Raymond Perelman, the Pew Charitable Trusts' Rebecca Rimel, and the late publishing magnate Walter Annenberg - strategized to defy the last will and testament of billionaire collector Albert C. Barnes, ultimately succeeding in wresting hundreds of Cezannes, Matisses, Picassos, Renoirs, and van Goghs from the eccentric physician-turned-art educator's Foundation headquarters on leafy Latchs Lane to a new spot just blocks from the Philadelphia Museum of Art."
"Navigating the Deaccessioning Crisis"
Speaking of Derek Fincham, he's posted a working manuscript of his soon to be published law review article on deaccessioning. Here's his summary:
"My proposal has three parts. First, the unnecessary restriction on deaccession proceeds should be eliminated. Second, when an important work of art is deaccessioned, other museums should be given an opportunity to purchase a work - to keep it in the public trust or its region - in much the same way the United Kingdom and other nations regulate the export of works of art. Finally, when any museum is considering a deaccession, it must provide reasons for the sale and publicize the decision to allow for public comment."
Sounds good to me! I look forward to reading the larger piece.
"My proposal has three parts. First, the unnecessary restriction on deaccession proceeds should be eliminated. Second, when an important work of art is deaccessioned, other museums should be given an opportunity to purchase a work - to keep it in the public trust or its region - in much the same way the United Kingdom and other nations regulate the export of works of art. Finally, when any museum is considering a deaccession, it must provide reasons for the sale and publicize the decision to allow for public comment."
Sounds good to me! I look forward to reading the larger piece.
Wednesday, September 9, 2009
"The Southampton City Council has decided to sell parts of its permanent collection"
Derek Fincham discusses a case of deaccessioning in the UK. He says "if we were to apply the current rules of the AAMD to this sale, the sale would be perfectly acceptable would it not? These works do not fall within the scope of Southampton's collection." I don't think that's right. Apparently the sales proceeds will be used to help "construct a £15m maritime museum commemorating the sinking of the Titanic." Remember, under the AAMD approach, there is only one thing you can do with the proceeds from sales of art (buy more art); you can't go and build a Titanic-commemorating museum. What's more, from an AAMD point of view, it doesn't matter whether the works "fall within the scope of the collection" or not. You can sell work that falls right square in the middle of your collection and that's okay, just so long as you use the proceeds to buy art. But if you want to use the proceeds for any other purpose, that's forbidden, even if the work no longer falls within the scope of the collection.
Tuesday, September 8, 2009
A Long Beach Question
Felix Salmon wonders why the Long Beach Museum of Art would run the risk of losing half a million dollars a year in operating support from the city by failing to repay the $3 million loan the city says it owes:
"I find that hard to understand: it should just take the $569,000 and use some fraction of it to pay off the $3 million over time, spending the rest on art and programming. Or is there some good reason why the museum’s implied discount rate is so incredibly high (over 18%)?"
"I find that hard to understand: it should just take the $569,000 and use some fraction of it to pay off the $3 million over time, spending the rest on art and programming. Or is there some good reason why the museum’s implied discount rate is so incredibly high (over 18%)?"
"It hopes its existence will prove a 'crucial step' in the fight against the flourishing illegal trade" (UPDATED)
The Guardian has more on the Interpol online stolen art database.
UPDATE: Art Theft Central's Mark Durney takes it for a spin.
UPDATE: Art Theft Central's Mark Durney takes it for a spin.
Rose Update
In the Brandeis Justice, Alana Abramson has the latest on the Rose lawsuit. There was a case management conference on Sept. 1. It's on a fairly fast track. The university will be filing a motion to dismiss by Sept. 15; the plaintiffs will be moving for a preliminary injunction by the same date. Opposition papers are due Oct. 6, with a hearing scheduled for Oct. 13.
One of the plaintiffs tells Abramson: "The University is using the line of attack that we don't care about the University, just the esoteric art collection. We are trying to save this piece of Brandeis because it's a crown jewel."
The university's lawyer counters: "It's unfortunate that Brandeis can find itself in a situation that it may have to sell art, but it is doing so for the right reasons. That is the essential truth of this case."
One of the plaintiffs tells Abramson: "The University is using the line of attack that we don't care about the University, just the esoteric art collection. We are trying to save this piece of Brandeis because it's a crown jewel."
The university's lawyer counters: "It's unfortunate that Brandeis can find itself in a situation that it may have to sell art, but it is doing so for the right reasons. That is the essential truth of this case."
Monday, September 7, 2009
Post Melendez-Diaz Changes in Virginia Law
Things seem to have settled down in Virginia post-Melendez-Diaz.
Last week, in Grant v. Commonwealth, the Virginia Court of Appeals decided that, while the information in a DUI breathalizer certificate is non-testimonial, the fact that Virginia law requires attestation on the certificate means that the certificate cannot be introduced if the person who did the attestation is not present in court. Since the LEO who did the test is usually present this doesn't really cramp much in our local courts.
Prior to that, the General Assembly had a special session and passed alterations on all sorts of laws in order to make them come into compliance. Consequently, here's my understanding of what has to happen for certificates to be admissable without the person who did the test.
1: The 14 day window. In most cases this won't make a difference and it will probably cut down on defendants filing for the tester's appearance when there is no actual issue. However, this is going to be hard fought in some serious cases. Imagine a murder trial wherein the Commonwealth notifies defense counsel of several certificates the day after counsel is appointed as part of a couple thousand pages of discovery. Defense counsel, who has a full trial schedule, doesn't read all the the discovery until it was too late. 6 months later, but several months pretrial, defense counsel finds an issue which requires the tester to be in court.
2: Exactly what proof does the Commonwealth have to provide that it delivered the certificate in a timely manner? Maybe we should all start faxing things so there is proof of receipt. I suspect that the date the Clerk received his copy shall be the generally accepted date.
3: The "has been held continuously in custody" language is unfortunate. If someone was in custody for three days 6 months ago (when first arrested) that would seem to fulfill this language even if Defendant is free on bond when the case is continued. This would seem to set things up for problems with the speedy trial arguments. If someone "has been held continuously in custody" but is not now in custody and the case is continued for 180 days will only the first 90 be exempt from the speedy trial statute?
Predictions: Most of the fuss which arose after Melendez-Diaz has died down. I think that, except as game playing, this will all fade. In fact, defense counsel under the old system could have required testers to have been in court, but they didn't because most of the time they wouldn't have gained anything. However, I hope to see tweaking of the 14 day limit and clarification of the "has been held continuously in custody" language.
Last week, in Grant v. Commonwealth, the Virginia Court of Appeals decided that, while the information in a DUI breathalizer certificate is non-testimonial, the fact that Virginia law requires attestation on the certificate means that the certificate cannot be introduced if the person who did the attestation is not present in court. Since the LEO who did the test is usually present this doesn't really cramp much in our local courts.
Prior to that, the General Assembly had a special session and passed alterations on all sorts of laws in order to make them come into compliance. Consequently, here's my understanding of what has to happen for certificates to be admissable without the person who did the test.
1) 28 Days - or more - Prior to Trial: A copy of the certificate, along with an explanation of Defendant's right to object and require presence of the person who performed the test to be present in court, must be sent both to Defendant (or counsel) and the Clerk.Issues:
2) 14 Days after Certificate Delivered: Defendant's right to have tester present is waived if Commonwealth not notified prior to this date.
3) Prior to Trial: Defendant must raise any claims not to have received timely notice from the Commonwealth prior to trial. The Commonwealth's proof of provision shall be prima facie evidence that it was delivered on that date.
4) If the Trial Court finds that notice was not timely given or that the Commonwealth, after exercising due diligence, cannot have the tester in court on the trial date, shall continue the case.
5) Continuances: Up to 90 days "if the accused has been held continuously in custody." Up to 120 days "if the accused has not been held continuously in custody." No continuance pursuant to this section shall count against Virginia's speedy trial statute.
6) Preliminary Hearings: None of this is required to use a certificate in a preliminary hearing.
1: The 14 day window. In most cases this won't make a difference and it will probably cut down on defendants filing for the tester's appearance when there is no actual issue. However, this is going to be hard fought in some serious cases. Imagine a murder trial wherein the Commonwealth notifies defense counsel of several certificates the day after counsel is appointed as part of a couple thousand pages of discovery. Defense counsel, who has a full trial schedule, doesn't read all the the discovery until it was too late. 6 months later, but several months pretrial, defense counsel finds an issue which requires the tester to be in court.
2: Exactly what proof does the Commonwealth have to provide that it delivered the certificate in a timely manner? Maybe we should all start faxing things so there is proof of receipt. I suspect that the date the Clerk received his copy shall be the generally accepted date.
3: The "has been held continuously in custody" language is unfortunate. If someone was in custody for three days 6 months ago (when first arrested) that would seem to fulfill this language even if Defendant is free on bond when the case is continued. This would seem to set things up for problems with the speedy trial arguments. If someone "has been held continuously in custody" but is not now in custody and the case is continued for 180 days will only the first 90 be exempt from the speedy trial statute?
Predictions: Most of the fuss which arose after Melendez-Diaz has died down. I think that, except as game playing, this will all fade. In fact, defense counsel under the old system could have required testers to have been in court, but they didn't because most of the time they wouldn't have gained anything. However, I hope to see tweaking of the 14 day limit and clarification of the "has been held continuously in custody" language.
Another Leibovitz Lawsuit
Italian photographer Paolo Pizzetti has sued Annie Leibovitz for copyright infringement in federal court in New York, alleging that she used his work without permission in an ad campaign she did for Lavazza coffee. BBC News story here.
Saturday, September 5, 2009
Long Beach Update
Interesting twist in the Long Beach Museum of Art story mentioned earlier in the summer here. Back in June, it was reported that "in 1999, the [museum] launched a campaign to obtain funds for construction of a new two-story exhibition pavilion" and, "under the [1999] agreement, the city promised to accept liability for the bond debt if the foundation could not pay it off." But, reported the LAT's Mike Boehm Friday:
"as museum director Ronald Nelson mulled over what to do a couple of months ago, he researched the original bond agreement that both parties had assumed laid full responsibility for repayment on the museum foundation -- and says he found the actual language says otherwise. The documents, Nelson says, put the onus on the city to make good on the bonds should the museum's fundraising fail -- and say nothing about the museum foundation having to pay the city back. Given the legalities of the situation, Nelson says, to make any repayment on the bonds now would be a misappropriation of museum funds."
Boehm had a follow-up story in yesterdays' paper. It seems the city agrees "the museum legally was not required to pay back the bond," but they believe the museum promised to do so regardless of what's in the contract. As a result, Long Beach Mayor Bob Foster "has recommended eliminating the $569,000 in support the city normally would pay, noting that the cut is a consequence of the museum's refusal to pay off the bonds."
The "Stalin-esque" idea of selling art to pay off the debt seems to have been ruled out:
"Selling art 'is not a concept that's on the table,' [assistant city manager Suzanne] Frick said. 'I don't think it ever was . . . It was a comment a council member made, never a formal action or discussion.'"
"as museum director Ronald Nelson mulled over what to do a couple of months ago, he researched the original bond agreement that both parties had assumed laid full responsibility for repayment on the museum foundation -- and says he found the actual language says otherwise. The documents, Nelson says, put the onus on the city to make good on the bonds should the museum's fundraising fail -- and say nothing about the museum foundation having to pay the city back. Given the legalities of the situation, Nelson says, to make any repayment on the bonds now would be a misappropriation of museum funds."
Boehm had a follow-up story in yesterdays' paper. It seems the city agrees "the museum legally was not required to pay back the bond," but they believe the museum promised to do so regardless of what's in the contract. As a result, Long Beach Mayor Bob Foster "has recommended eliminating the $569,000 in support the city normally would pay, noting that the cut is a consequence of the museum's refusal to pay off the bonds."
The "Stalin-esque" idea of selling art to pay off the debt seems to have been ruled out:
"Selling art 'is not a concept that's on the table,' [assistant city manager Suzanne] Frick said. 'I don't think it ever was . . . It was a comment a council member made, never a formal action or discussion.'"
More Park West
The National Law Journal reports that Park West Gallery is facing a seventh lawsuit:
"The lawsuit, filed Aug. 26 in federal court in Detroit, alleges that a Park West appraiser ... conspired with the gallery to destroy the reputation of Fine Art Registry, which is investigating the gallery for alleged deceptive practices. The appraiser is accused of posting false and 'vicious' comments about the registry in a blog."
More on Park West and Fine Art Registry here.
"The lawsuit, filed Aug. 26 in federal court in Detroit, alleges that a Park West appraiser ... conspired with the gallery to destroy the reputation of Fine Art Registry, which is investigating the gallery for alleged deceptive practices. The appraiser is accused of posting false and 'vicious' comments about the registry in a blog."
More on Park West and Fine Art Registry here.
Friday, September 4, 2009
"The investigation into Kozlowski’s illicit activities was triggered by his art buying activities"
Former Tyco CEO Dennis Kozlowski is back in the news. Lindsay Pollock reminds us where his troubles started.
Thursday, September 3, 2009
Back in play?
For a while there, it seemed President Obama's idea to limit charitable deductions was off the table. But the Wall Street Journal reports today that "the main proposal getting renewed attention" from Senate Democrats is one to "limit the federal tax deductions for higher-income families for mortgage interest and other widely claimed purposes, said two senior Senate Democratic aides."
Wednesday, September 2, 2009
Cleveland Kerfuffle (UPDATED)
Lee Rosenbaum calls attention to The Cleveland Museum of Art's recent request for court permission to "use for a period years a portion of the income from two charitable trusts and two endowment funds to assist with the funding of the renovation and expansion of its facilities" (Complaint paragraph 2). Because the trusts at issue were established to fund the acquisition of art, Lee is outrageously outraged: it's "the most egregious disregard of donor intent by an art-displaying institution in recent memory." (In a follow-up BlogBack, Michael M. Thomas tells her "high horses are all very well, but sometimes can run pretty rank when one gets real.")
Steve Litt's Cleveland Plain Dealer article which broke the story mentions that "in 1955, ... the county probate court granted the museum permission to use income from art-purchase funds to build an expansion completed in 1958 (since demolished)." But it's worth noting that it wasn't just any "art-purchase funds" in that case; it was three of the four funds at issue in the current case. (The fourth didn't come into existence until after the 1955 decision.) In the earlier case, The Cleveland Museum of Art v. O'Neill (129 NE 2d 669), the court was "convinced that the settlors were persons of broad vision and that in any event they would want the Museum to prosper, to expand and to be able to carry on its work indefinitely. The Court has no hesitancy in saying that under existing circumstances they would willingly deviate from their expressed method of procedure and permit the income from the trusts to be used as prayed for in the petition."
In this case, the museum argues that the expansion project addresses the "need for additional space for the display, care, conservation and presentation of the Museum's collection," will "allow greater access to the Museum's collection, accomodate a broader range of educational activities, and provide improved amenities for the 500,000 plus visitors that come to the Museum every year." It will also "allow the Museum to display on a regular basis a far greater percentage of its outstanding collection," "replace outdated environmental and security control systems," and "allow for the continued expansion of its collection in the future."
(Lee's counterargument is that allowing this deviation "could make benefactors around the country doubt that museums can be trusted to honor their wishes" and "may well give rise to second thoughts by potential donors.")
Two other points worth emphasizing from Litt's article:
1. "The proposal wouldn't erode the value of the art purchase accounts because it would involve using only a portion of the investment income from funds -- not the principal"; and
2. The museum's request "is supported by Ohio Attorney General Richard Cordray, whose office supervises the two endowment funds and two charitable trusts involved, and by Key Bank, which manages the two trusts." Cordray is quoted as saying: "It doesn't do much good to buy art once you run out of space, because you're going to stick it in the basement."
UPDATE: Michael Botwinick, director of the Hudson River Museum, is with Lee: "'Taxing' endowments given for the express and specific purpose of purchasing art is not an acceptable option. The trustees must consider 'taxing' their own resources to finish the building. Failing that they must make the hard decision to suspend, delay or reduce the project, pending funding. It will be embarrassing, unpopular and uncomfortable. But they made this bed; now they must lie in it."
Steve Litt's Cleveland Plain Dealer article which broke the story mentions that "in 1955, ... the county probate court granted the museum permission to use income from art-purchase funds to build an expansion completed in 1958 (since demolished)." But it's worth noting that it wasn't just any "art-purchase funds" in that case; it was three of the four funds at issue in the current case. (The fourth didn't come into existence until after the 1955 decision.) In the earlier case, The Cleveland Museum of Art v. O'Neill (129 NE 2d 669), the court was "convinced that the settlors were persons of broad vision and that in any event they would want the Museum to prosper, to expand and to be able to carry on its work indefinitely. The Court has no hesitancy in saying that under existing circumstances they would willingly deviate from their expressed method of procedure and permit the income from the trusts to be used as prayed for in the petition."
In this case, the museum argues that the expansion project addresses the "need for additional space for the display, care, conservation and presentation of the Museum's collection," will "allow greater access to the Museum's collection, accomodate a broader range of educational activities, and provide improved amenities for the 500,000 plus visitors that come to the Museum every year." It will also "allow the Museum to display on a regular basis a far greater percentage of its outstanding collection," "replace outdated environmental and security control systems," and "allow for the continued expansion of its collection in the future."
(Lee's counterargument is that allowing this deviation "could make benefactors around the country doubt that museums can be trusted to honor their wishes" and "may well give rise to second thoughts by potential donors.")
Two other points worth emphasizing from Litt's article:
1. "The proposal wouldn't erode the value of the art purchase accounts because it would involve using only a portion of the investment income from funds -- not the principal"; and
2. The museum's request "is supported by Ohio Attorney General Richard Cordray, whose office supervises the two endowment funds and two charitable trusts involved, and by Key Bank, which manages the two trusts." Cordray is quoted as saying: "It doesn't do much good to buy art once you run out of space, because you're going to stick it in the basement."
UPDATE: Michael Botwinick, director of the Hudson River Museum, is with Lee: "'Taxing' endowments given for the express and specific purpose of purchasing art is not an acceptable option. The trustees must consider 'taxing' their own resources to finish the building. Failing that they must make the hard decision to suspend, delay or reduce the project, pending funding. It will be embarrassing, unpopular and uncomfortable. But they made this bed; now they must lie in it."
Tuesday, September 1, 2009
Seen at Court
Defendant and Attorney are standing 2 feet in front of the judicial bench. Attorney has just had a bond hearing at defendant's request. Defendant told the judge she should lower the bond because "I've had the same bond for 8 months and my family hasn't been able to pay it."
After the judge shoots that down, Defendant starts insisting that he be allowed to plead guilty right now because he has to get out out today. Attorney tries to calm him down; tries to pull him aside to talk; tries to get him to stop talking; tries to make him realize that he has a plea date set for next week when Attorney expects to have a plea offer. He isn't having any of it and keeps insisting that he wants to plead guilty today! The judge tells him that she'll be happy to let him plead guilty and set a sentencing hearing for three months down the line. It doesn't seem to penetrate the head of Defendant that this will probably keep him in jail longer.
Finally, Attorney turns to Defendant and says, "You can do this against my advise. You shouldn't, but you can. I'm going to walk out of the front door of the courthouse either way. You still insist on pleading today?"
And, you know what? It worked. The guy finally came to his senses and decided to wait until next week.
After the judge shoots that down, Defendant starts insisting that he be allowed to plead guilty right now because he has to get out out today. Attorney tries to calm him down; tries to pull him aside to talk; tries to get him to stop talking; tries to make him realize that he has a plea date set for next week when Attorney expects to have a plea offer. He isn't having any of it and keeps insisting that he wants to plead guilty today! The judge tells him that she'll be happy to let him plead guilty and set a sentencing hearing for three months down the line. It doesn't seem to penetrate the head of Defendant that this will probably keep him in jail longer.
Finally, Attorney turns to Defendant and says, "You can do this against my advise. You shouldn't, but you can. I'm going to walk out of the front door of the courthouse either way. You still insist on pleading today?"
And, you know what? It worked. The guy finally came to his senses and decided to wait until next week.
"Few things are more alluring than the vision of a dark mind hanging on the wall"
Newsweek on "criminal art" (not work so bad there should be a law against it, but work by prisoners).
"Can the art trade do more to reform its own practices?"
Carroll Doctrine
Last week I got asked to research an interesting question about the limitations which the Gant decision might have upon the Carroll Doctrine. It didn't seem to have any, but it raised my interest.
The Carroll Doctrine came out of a case : Carroll v. U.S., 1924 (267 U.S. 132). A prohibition era case, Carroll is the case which creates the constitutional difference between searches of dwellings and vehicles. After a review of a number of statutes, basically doing an original intent analysis, it states that for buildings a warrant may be easily obtained while for vehicles “it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which a warrant must be sought.” Going further it explains that an officer can't just stop any vehicle he wants to.
I can already hear the howls of protest. “In the modern world we have radios and cell phones. Carroll is outdated law!” Well, maybe so in your locality, but let's consider those of us in far Southwest Virginia. My county borders Kentucky. There are mountains everywhere, cell towers are extremely spotty, and there are plenty of places back in the way back, with three or four mountains between the deputy and civilization, where anything short of satellite communication just ain't going to work.
Consider a case wherein the local sheriff's department has all sorts of knowledge of John Jones trading oxycodone, methadone, suboxone and lortabs back and forth across the Kentucky-Virginia border in his SUV. Jones crosses the border at random times and places. At 3 a.m., Deputy Smith is out in the way-back returning from a call from a house just on the other side of a national park. He sees Jones driving an SUV down a road which comes directly through the park from Kentucky (with no civilization anywhere near either side of the border). Pulling over the vehicle, the deputy sees nothing in plain sight and Jones is savvy enough that he's never going to agree to a consent search. There's no cell service anywhere near and the mountain next to the road isn't letting any radio waves get through.
Deputy Smith is faced with a number of bad choices. If the deputy releases Jones, so he can go get a warrant, Jones will be back across the border in 5 minutes. If the deputy secures Jones in the back of his car while he drives 10 miles down the road where he can get radio contact he has extended a seizure of a person without an arrest. The least constitutionally intrusive practical act is a search of the vehicle on the scene.
In the modern era, the use of Carroll assumes that smugglers are smart enough to try to ply their trade in areas where it will be difficult for LEO's to easily get search warrants. If a smuggler is stopped at a port in Miami or driving through New York City local LEO's probably shouldn't be able to rely on Carroll. On the other hand, in a rural county in Nebraska where there are two deputies on duty and the judge comes by once a week, Carroll may be a necessity if there is to be a realistic possibility of actually enforcing the law.
[addendum] Apprently, my reading of Carroll was too restrictive. Via Commonwealth v. Grimes, I see that the federal supreme court has entirely excised any exigent circumstances requirement so that all an officer needs to do the search is mobility of the car and probable cause that contraband is in it.
The Carroll Doctrine came out of a case : Carroll v. U.S., 1924 (267 U.S. 132). A prohibition era case, Carroll is the case which creates the constitutional difference between searches of dwellings and vehicles. After a review of a number of statutes, basically doing an original intent analysis, it states that for buildings a warrant may be easily obtained while for vehicles “it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which a warrant must be sought.” Going further it explains that an officer can't just stop any vehicle he wants to.
The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops has contraband [] therein which is being illegally transported.To sum it up, Carroll allows LEO's with probable cause to search an entire vehicle because of the mobility of the vehicle and the difficulty of obtaining a warrant in a timely manner.
I can already hear the howls of protest. “In the modern world we have radios and cell phones. Carroll is outdated law!” Well, maybe so in your locality, but let's consider those of us in far Southwest Virginia. My county borders Kentucky. There are mountains everywhere, cell towers are extremely spotty, and there are plenty of places back in the way back, with three or four mountains between the deputy and civilization, where anything short of satellite communication just ain't going to work.
Consider a case wherein the local sheriff's department has all sorts of knowledge of John Jones trading oxycodone, methadone, suboxone and lortabs back and forth across the Kentucky-Virginia border in his SUV. Jones crosses the border at random times and places. At 3 a.m., Deputy Smith is out in the way-back returning from a call from a house just on the other side of a national park. He sees Jones driving an SUV down a road which comes directly through the park from Kentucky (with no civilization anywhere near either side of the border). Pulling over the vehicle, the deputy sees nothing in plain sight and Jones is savvy enough that he's never going to agree to a consent search. There's no cell service anywhere near and the mountain next to the road isn't letting any radio waves get through.
Deputy Smith is faced with a number of bad choices. If the deputy releases Jones, so he can go get a warrant, Jones will be back across the border in 5 minutes. If the deputy secures Jones in the back of his car while he drives 10 miles down the road where he can get radio contact he has extended a seizure of a person without an arrest. The least constitutionally intrusive practical act is a search of the vehicle on the scene.
In the modern era, the use of Carroll assumes that smugglers are smart enough to try to ply their trade in areas where it will be difficult for LEO's to easily get search warrants. If a smuggler is stopped at a port in Miami or driving through New York City local LEO's probably shouldn't be able to rely on Carroll. On the other hand, in a rural county in Nebraska where there are two deputies on duty and the judge comes by once a week, Carroll may be a necessity if there is to be a realistic possibility of actually enforcing the law.
[addendum] Apprently, my reading of Carroll was too restrictive. Via Commonwealth v. Grimes, I see that the federal supreme court has entirely excised any exigent circumstances requirement so that all an officer needs to do the search is mobility of the car and probable cause that contraband is in it.
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