The rigid formalism of the AAMD/AAM position on deaccessioning (sales to buy more art -- totally fine, knock yourself out; sales for any and all other reasons -- repulsive) leads its defenders to say some odd-sounding things, at least to my ear. Here's an example, from a story in the Newark Star-Ledger yesterday entitled "Sale of art linked to financial woes by Montclair museum sparks debate." AAM president Ford Bell is quoted as saying:
"It is fairly straightforward. Museums have a lot of stuff in their basements that they don't use. You don't want to be caring for and conserving objects and collections that aren't central to your mission. But it is not acceptable to sell parts of your collection in order to pay the bills."
What's great about this quote is that it perfectly encapsulates the internal inconsistency of the AAM's position. It starts off by talking down the works that museums sell in order to buy more art: it's stuff museums don't use, that isn't central to the museum's mission, valuable resources are being wasted caring for and conserving them. It's in the basement, for chrissakes. But then -- in the very same breath -- comes The Pivot. All of a sudden it is "unacceptable" to sell this same superfluous, basement-residing stuff -- for any purpose, no matter how worthy. (Notice how, in Bell's quote, it's just "stuff" when it's being sold to acquire other art, but it gets promoted to "parts of your collection" when it's being sold for other reasons.)
There's another amusing quote in the same article, this one from Montclair director Lora Urbanelli:
"Urbanelli said the museum is accelerating the pace of the deaccessionings to take advantage of the art market. 'The market might be down overall but certain areas are strong. Some sales may be better now than next year. Next year might be tougher,' she said" (my emphasis).
Really? They decided now is the time to take advantage of the art market? That's an interesting approach.
Thursday, May 14, 2009
Monday, May 11, 2009
"This case has profound implications for artists' rights"
Last fall I wrote about "another frustrating VARA decision," this time involving artist Chapman Kelley's Wildflower work in Chicago. Kelley has now filed his appellate brief with the Seventh Circuit, relying primarily on the grounds I described in my earlier post:
1. I said the District Court's holding that the work was not "original" enough to qualify for copyright protection was "just plain wrong" under the Supreme Court's Feist decision. The brief says "the District Court invoked a legal standard that bears no relationship to the extremely low threshold for copyright protection established by the Supreme Court in Feist" (p. 10).
2. I also said:
"As an alternative holding, the court, without much analysis, followed the First Circuit in Phillips v. Pembroke in finding that VARA simply does not protect site-specific art. I discussed the Phillips decision here. The gist of that discussion was that, while a reasonable argument can be made that VARA doesn't prevent the removal of a site-specific work, there's no reason to completely exclude site-specific works from VARA's orbit. Kelley's work serves as a good example. Let's say that, instead of removal, someone had come in one night and destroyed large sections of the work, or splashed red paint all over it, or otherwise defaced it. Why should the work not be protected against those sorts of things? What does the work's site-specificity have to do with any of that?"
Kelley's brief argues that the District Court was wrong to adopt "(without any analysis of its own) the First Circuit's fatally flawed conclusion regarding site-specific art" (p. 10):
"Site-specific art is just as vulnerable to acts of distortion, mutilation, or modification ... as non site-specific art .... A site-specific mural ... is just as vulnerable to mutilation as a painting hanging on the wall of a museum and VARA should and does protect both. ... [This case] highlights the extent of the error in the First Circuit's interpretation of VARA's application to site-specific art. The Park District did not remove and thereby conceptually damage [Kelley's work]. Instead, the Park District did something equivalent to painting a huge garish mustache on the Mona Lisa .... The Park District did not remove and relocate Chapman Kelley's art -- instead it distorted and mutilated the [work] in the exact location where it has been for decades ..." (pp. 19-20).
1. I said the District Court's holding that the work was not "original" enough to qualify for copyright protection was "just plain wrong" under the Supreme Court's Feist decision. The brief says "the District Court invoked a legal standard that bears no relationship to the extremely low threshold for copyright protection established by the Supreme Court in Feist" (p. 10).
2. I also said:
"As an alternative holding, the court, without much analysis, followed the First Circuit in Phillips v. Pembroke in finding that VARA simply does not protect site-specific art. I discussed the Phillips decision here. The gist of that discussion was that, while a reasonable argument can be made that VARA doesn't prevent the removal of a site-specific work, there's no reason to completely exclude site-specific works from VARA's orbit. Kelley's work serves as a good example. Let's say that, instead of removal, someone had come in one night and destroyed large sections of the work, or splashed red paint all over it, or otherwise defaced it. Why should the work not be protected against those sorts of things? What does the work's site-specificity have to do with any of that?"
Kelley's brief argues that the District Court was wrong to adopt "(without any analysis of its own) the First Circuit's fatally flawed conclusion regarding site-specific art" (p. 10):
"Site-specific art is just as vulnerable to acts of distortion, mutilation, or modification ... as non site-specific art .... A site-specific mural ... is just as vulnerable to mutilation as a painting hanging on the wall of a museum and VARA should and does protect both. ... [This case] highlights the extent of the error in the First Circuit's interpretation of VARA's application to site-specific art. The Park District did not remove and thereby conceptually damage [Kelley's work]. Instead, the Park District did something equivalent to painting a huge garish mustache on the Mona Lisa .... The Park District did not remove and relocate Chapman Kelley's art -- instead it distorted and mutilated the [work] in the exact location where it has been for decades ..." (pp. 19-20).
"An absence of clues meant an abundance of theories, and Scotti advances them all in a collection of arresting but disparate narratives"
"Finding an answer of what's best to do with a valuable painting is difficult"
The Wilmington Library in Delaware is selling 14 N.C. Wyeth illustrations "to pay for $5 million in major improvements." Story here. "No one is sadder than we are," says the president of the library's board of managers. "We love the paintings but we also love the building and want to keep the library in the building and make improvements in tough economic times."
Are these works held in trust for the public? Or do only museums hold work in trust for us? Is this sale repulsive? It's so hard to keep it all straight sometimes.
Are these works held in trust for the public? Or do only museums hold work in trust for us? Is this sale repulsive? It's so hard to keep it all straight sometimes.
Framing Art Vandalism
An interesting student note by M.J. Williams in the Brooklyn Law Review arguing for legal recognition of art vandalism separate and distinct from other forms of vandalism. As a bonus, it includes an appendix of reported instances of art vandalism in public institutions over the last 30 years.
"Obama Continues to Promote Limits on Charitable Deductions" (UPDATED)
The Chronicle of Philanthropy has the latest.
UPDATE: More from CNN.com: "The charitable deductions proposal has drawn opposition from congressional Democrats."
UPDATE: More from CNN.com: "The charitable deductions proposal has drawn opposition from congressional Democrats."
More on Flores-Figueroa
I got a couple interesting comments on my last post. Donald first raised the Rule of Lenity because the statute is poorly written. I couldn't quite get there, but it did start me thinking. What if you ignored the way the Court did its analysis and looked at the statute as a whole, considering "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person" as a verbal phrase, thus rendering "transfers, possesses, or uses, without lawful authority, a means of identification of another person" into a multi-part verb all of which is modified by knowingly. However, while the thought was still nascent in the slow-grinding gears in my head, Neal Goldfarb stepped up and pointed to a blog post and his amicus brief. Both put forth strong arguments for that position. Both are better than the Supreme Court's "'cuz it looks right" explanation.
However, as textual interpretation is not strictly the same as grammar, I must say that I am not entirely persuaded by their arguments. The language of the statute is sloppy, but it does leave 2 separate occurrences which the defendant could have knowledge of: (1) the transfer, possession, or use & (2) the actual state of the identification. Knowing of a transfer does not require knowledge of the state of the identification. Knowing the state of an identification does not require knowledge of its transfer.
Still, the verbal phrase argument carries enough weight to make the phrase ambiguous and thus brings the Rule of Ambiguity into play. This then requires that a knowledge requirement be added to a means of identification of another person, because ambiguous statutes are to be interpreted in favor of the defendant.
Disclosure: I think the above to be a correct reading of the statute in its entirety. However, as I have previously stated on this blawg, I find strict liability in criminal statutes to be an anathema. I may be straining to get away from a reading which requires a strict liability if the identification happens to be that of another person, whether the defendant knows it to be or not.
However, as textual interpretation is not strictly the same as grammar, I must say that I am not entirely persuaded by their arguments. The language of the statute is sloppy, but it does leave 2 separate occurrences which the defendant could have knowledge of: (1) the transfer, possession, or use & (2) the actual state of the identification. Knowing of a transfer does not require knowledge of the state of the identification. Knowing the state of an identification does not require knowledge of its transfer.
Still, the verbal phrase argument carries enough weight to make the phrase ambiguous and thus brings the Rule of Ambiguity into play. This then requires that a knowledge requirement be added to a means of identification of another person, because ambiguous statutes are to be interpreted in favor of the defendant.
Disclosure: I think the above to be a correct reading of the statute in its entirety. However, as I have previously stated on this blawg, I find strict liability in criminal statutes to be an anathema. I may be straining to get away from a reading which requires a strict liability if the identification happens to be that of another person, whether the defendant knows it to be or not.
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