One of the strange features of the strict anti-deaccessioning position, it seems to me, is the whole notion of the "public trust." How is it, exactly, that works owned by museums comes to be "held in the public trust" such that they can never be sold (except to buy other art)? What is the mechanism? It is sometimes suggested that this is a function of the favorable tax treatment museums receive: because museums are exempt from property and income taxes, and donors get tax deductions for contributing to them, the "public" therefore is the true owner of the art. I've never really understood that argument. There are lots of other entities that get the same tax benefits -- churches. private schools and universities, hospitals, etc. Does the public own the MRI machines at the hospital? If a university decides to shut down the sociology department, should we step in and say, "Hey, wait a minute. That department was held in trust for us. You can't just get rid of it like that"? Does every asset ostensibly held by every non-profit really belong to us? And if not, what makes art different? How does it come to be "held in trust" when other, similarly-owned assets are not?
But if tax benefits are not enough, what about a bailout? The New York Times ran a little piece earlier this week that began:
"Many of the world’s biggest banks — and biggest recipients of government bailouts — have some of the largest collections of art. Some of the works, including abstract pieces and old masters, are hanging in hallways or boardrooms. But much of it is packed away in storage. The art owned by financial institutions should get out more — at the least to give the taxpayers, who have been so generous with the financial sector, an aesthetic return."
Wednesday, October 28, 2009
Here's the Rub
Lee Rosenbaum asks former Cleveland Museum director Timothy Rub about the decision to use (with court permission) certain acquisition-specific funds to help complete the museum's expansion project. He says:
"There are legal means that have been in place for a long time to ask courts to determine whether or not funds that have been contributed for one purpose can be utilized ... for another purpose. There are legal mechanisms and a significant body of law that leads to this.
"Secondly, I should say that the board of the Cleveland Museum of Art is a tremendously responsible and resourceful group of people who are fiduciaries for the institution. And it's their responsibility to make thoughtful and prudent fiscal decisions on behalf of the institution. I think the trustees discharged their responsibilities extremely well. I really do."
"There are legal means that have been in place for a long time to ask courts to determine whether or not funds that have been contributed for one purpose can be utilized ... for another purpose. There are legal mechanisms and a significant body of law that leads to this.
"Secondly, I should say that the board of the Cleveland Museum of Art is a tremendously responsible and resourceful group of people who are fiduciaries for the institution. And it's their responsibility to make thoughtful and prudent fiscal decisions on behalf of the institution. I think the trustees discharged their responsibilities extremely well. I really do."
"I don’t regard copyright as a property right, but rather as a government program, a social program"
An interesting conversation between Clancco's Sergio Muñoz Sarmiento and copyright scholar William Patry.
Tuesday, October 27, 2009
More on the Rose Lawsuit
I mentioned, after the probate court hearing earlier this month, that it was a little unclear where things stood in the Rose Museum lawsuit. It seemed, at the time, that it was being reported as something of a victory for the plaintiffs. ARTINFO.com, for example, headlined their piece: "Judge Lets Rose Museum Suit Stand."
But now comes a story in the Brandeis Justice that suggests that the only part of the suit the judge let stand is the part that Brandeis agreed could stand -- i.e., the plaintiffs could sue over their own donations to the museum, but they have no standing to challenge the university's decision to sell art generally, or to close the museum. The university's lawyer says "the case is now limited to the plaintiffs' ability to control their own donations or those of their ancestors to the Rose. 'The court ruled that the plaintiffs have no right and standing to represent any donors other than themselves or their ancestors, and that is all that's left now for the plaintiffs,' he said." He added that "Brandeis never had any intention of selling any artwork donated by any of the plaintiffs or the estates that they represent."
But now comes a story in the Brandeis Justice that suggests that the only part of the suit the judge let stand is the part that Brandeis agreed could stand -- i.e., the plaintiffs could sue over their own donations to the museum, but they have no standing to challenge the university's decision to sell art generally, or to close the museum. The university's lawyer says "the case is now limited to the plaintiffs' ability to control their own donations or those of their ancestors to the Rose. 'The court ruled that the plaintiffs have no right and standing to represent any donors other than themselves or their ancestors, and that is all that's left now for the plaintiffs,' he said." He added that "Brandeis never had any intention of selling any artwork donated by any of the plaintiffs or the estates that they represent."
Monday, October 26, 2009
Hard to Make Your Closing Thrilling When It's All About the Paperwork
Defendant lied to get benefits from a State Agency:
Well, ladies and gentlemen, I told you we'd get through this trial quicker than the last trial. Unfortunately, this one was more boring than most cases too. That's just the way it is in paperwork cases. You get up here and basically the only witnesses are people showing you how the paperwork is done and telling you why he did what he did.
Going all the way back to February 5, 2005, I told you I was going to have this paper for you. Feel free to go over this back in the jury room. He answers everything so that he can get benefits, including checking no on this question, which, compared to a lot of things in this 12 pages document, really isn't all that complex a question. “Have you, or a person for whom you are applying been convicted, after January 1, 2001, of snipe hunting or possession of snipe pelts?”
OK, he wants you to believe he didn't understand that question. Well, let's say he can't read too well. I don't believe that's been shown. He was reading things while on the stand and his illiteracy seems to come and go, as convenient. Still, we know better, because Pete Jones and Mary Greene got up on the stand and told us what they do for each interview. Now, I know that Mr. Smith tells you it's a ten minute thing, you're in you're out, you're done. I guess the interviewers are supposed to sit around the rest of the day drinking coffee or something, because if they only schedule 2 to 4 interviews a day I don't know what else you'd be doing. What are they filling that time with? It just doesn't make sense. Recall that they both told you the same thing. This is what we do; this is what was done with her. And they weren't in the courtroom during the others' testimony, so they couldn't hear what the other said and sit down and say exactly the same thing.
They both came up here and told you that on two dates a year apart, on 15 October 2007 Pete Jones interviewed him about the various benefits he was getting from State Agency and he answered no on the snipe hunting question. It gets put into the computer and he answers “no” again when they go over it verbally. The he has to scan it himself. All those opportunities to say “Yes, I've been convicted.”
18 November 2008, Mary Greene, same thing, they do the computer – and why would the workers cheat on the computer? It can't take that long to fill out the questions on the computer – they fill out all the computer stuff. She prints it out, goes over it with him. He again says, “No, I've not been convicted.” At least twice on that day he says, “No, I've not been convicted.”
Now, the big defense seems to be that, “They knew.” “They knew; they should have known.” Their one sheet of paper which seems to go anywhere near that is this one. This is the printout you've seen us arguing about up here. Now, this is, as it says here on the front, “Request to Be Made Payee.” This is from Federal Agency. You can tell it's from Federal Agency. Here they go on about “We are returning this application to you for your records” and telling that they store their copy electronically. This sheet was turned in the day after he told State Agency that he didn't have any snipe hunting convictions in 2006. It says that Federal Agency is giving him $176 a month from this date forward. And there's this part which says if you have any questions contact us at Federal Agency.
So, this is a Federal Agency document, which, by its own writings on page 2, was given back to Mr. Smith. Not given to anyone else at State Agency. And you'll recall that when Mary Greene was on the stand and defense counsel walked up and said “This is the form you get at the office” and she said “No” and he stopped asking questions real quick. She explained a little bit further, when prompted, that they get a different form than this. This is something that was given to Mr. Smith and if it had made its way into the State Agency's paperwork would have been stamped “received”, with a certain date, just like you see it stamped on the February 5 application Mr. Smith filled out and handed in. And, if he'd gone and gotten this copy from State Agency, like he told you today, it would have “received” such and such date on it. It doesn't - this is just his application from Federal Agency, to get money from them as well.
And, as far as it goes, for impeachment purposes, we have, March 22, 2006, the day before this application – see right here, it has March 23 – he was at State Agency and again said “Snipe Hunting Conviction: No.”
So, the whole “They knew” thing is a red herring and there are lot of red herrings, and that's [Mr. Defense Attorney]'s job. He's here to try to get his client not convicted. And he's tried to point out everything he can to get her not convicted. There's just nothing here which rebuts the paperwork and interviews.
Mr. Jones and Ms. Greene have no reason to be going after him. He couldn't state a reason that State Agency would be coming after him. No reason why Mr. Jones and Ms. Greene would be lying about it, going after him. Why would they make all this up? It doesn't make any sense at all. They're just doing their jobs and they're here today, rather than being at work dealing with their other clients because he lied. And that's it plain and simple ladies and gentlemen. There's not really a whole lot more to this. I wish I had some big rousing argument to make or statements to make.
He lied. He lied in order to get benefits. He's trying to do the same thing today by shuffling things at you like this application to Federal Agency and claiming he can't read anything despite the fact his initial application is filled out pretty well and on the other days he didn't really have to read anything. He got asked the questions. As a matter of fact, his inability to read is not what we're here for today because the two times he's charged are the times he was asked the questions by those folks and answered “No, I don't have any snipe hunting convictions.”
You'll get all this back there. Of course, here's the paper showing his snipe hunting convictions, 2003, before any of this started, before he applied at all to State Agency: felony snipe hunting.
I wish I had some sort of rousing statement to give you, like I said, but I think it's straight forward. I don't really think there's any reasonable doubt here folks. [Get charging instruction from judge] We have to prove he falsely stated in a document to get benefits from State Agency. That's what he did. He did it twice, and I ask you to find him guilty of that. Thank you ladies and gentlemen.
Well, ladies and gentlemen, I told you we'd get through this trial quicker than the last trial. Unfortunately, this one was more boring than most cases too. That's just the way it is in paperwork cases. You get up here and basically the only witnesses are people showing you how the paperwork is done and telling you why he did what he did.
Going all the way back to February 5, 2005, I told you I was going to have this paper for you. Feel free to go over this back in the jury room. He answers everything so that he can get benefits, including checking no on this question, which, compared to a lot of things in this 12 pages document, really isn't all that complex a question. “Have you, or a person for whom you are applying been convicted, after January 1, 2001, of snipe hunting or possession of snipe pelts?”
OK, he wants you to believe he didn't understand that question. Well, let's say he can't read too well. I don't believe that's been shown. He was reading things while on the stand and his illiteracy seems to come and go, as convenient. Still, we know better, because Pete Jones and Mary Greene got up on the stand and told us what they do for each interview. Now, I know that Mr. Smith tells you it's a ten minute thing, you're in you're out, you're done. I guess the interviewers are supposed to sit around the rest of the day drinking coffee or something, because if they only schedule 2 to 4 interviews a day I don't know what else you'd be doing. What are they filling that time with? It just doesn't make sense. Recall that they both told you the same thing. This is what we do; this is what was done with her. And they weren't in the courtroom during the others' testimony, so they couldn't hear what the other said and sit down and say exactly the same thing.
They both came up here and told you that on two dates a year apart, on 15 October 2007 Pete Jones interviewed him about the various benefits he was getting from State Agency and he answered no on the snipe hunting question. It gets put into the computer and he answers “no” again when they go over it verbally. The he has to scan it himself. All those opportunities to say “Yes, I've been convicted.”
18 November 2008, Mary Greene, same thing, they do the computer – and why would the workers cheat on the computer? It can't take that long to fill out the questions on the computer – they fill out all the computer stuff. She prints it out, goes over it with him. He again says, “No, I've not been convicted.” At least twice on that day he says, “No, I've not been convicted.”
Now, the big defense seems to be that, “They knew.” “They knew; they should have known.” Their one sheet of paper which seems to go anywhere near that is this one. This is the printout you've seen us arguing about up here. Now, this is, as it says here on the front, “Request to Be Made Payee.” This is from Federal Agency. You can tell it's from Federal Agency. Here they go on about “We are returning this application to you for your records” and telling that they store their copy electronically. This sheet was turned in the day after he told State Agency that he didn't have any snipe hunting convictions in 2006. It says that Federal Agency is giving him $176 a month from this date forward. And there's this part which says if you have any questions contact us at Federal Agency.
So, this is a Federal Agency document, which, by its own writings on page 2, was given back to Mr. Smith. Not given to anyone else at State Agency. And you'll recall that when Mary Greene was on the stand and defense counsel walked up and said “This is the form you get at the office” and she said “No” and he stopped asking questions real quick. She explained a little bit further, when prompted, that they get a different form than this. This is something that was given to Mr. Smith and if it had made its way into the State Agency's paperwork would have been stamped “received”, with a certain date, just like you see it stamped on the February 5 application Mr. Smith filled out and handed in. And, if he'd gone and gotten this copy from State Agency, like he told you today, it would have “received” such and such date on it. It doesn't - this is just his application from Federal Agency, to get money from them as well.
And, as far as it goes, for impeachment purposes, we have, March 22, 2006, the day before this application – see right here, it has March 23 – he was at State Agency and again said “Snipe Hunting Conviction: No.”
So, the whole “They knew” thing is a red herring and there are lot of red herrings, and that's [Mr. Defense Attorney]'s job. He's here to try to get his client not convicted. And he's tried to point out everything he can to get her not convicted. There's just nothing here which rebuts the paperwork and interviews.
Mr. Jones and Ms. Greene have no reason to be going after him. He couldn't state a reason that State Agency would be coming after him. No reason why Mr. Jones and Ms. Greene would be lying about it, going after him. Why would they make all this up? It doesn't make any sense at all. They're just doing their jobs and they're here today, rather than being at work dealing with their other clients because he lied. And that's it plain and simple ladies and gentlemen. There's not really a whole lot more to this. I wish I had some big rousing argument to make or statements to make.
He lied. He lied in order to get benefits. He's trying to do the same thing today by shuffling things at you like this application to Federal Agency and claiming he can't read anything despite the fact his initial application is filled out pretty well and on the other days he didn't really have to read anything. He got asked the questions. As a matter of fact, his inability to read is not what we're here for today because the two times he's charged are the times he was asked the questions by those folks and answered “No, I don't have any snipe hunting convictions.”
You'll get all this back there. Of course, here's the paper showing his snipe hunting convictions, 2003, before any of this started, before he applied at all to State Agency: felony snipe hunting.
I wish I had some sort of rousing statement to give you, like I said, but I think it's straight forward. I don't really think there's any reasonable doubt here folks. [Get charging instruction from judge] We have to prove he falsely stated in a document to get benefits from State Agency. That's what he did. He did it twice, and I ask you to find him guilty of that. Thank you ladies and gentlemen.
Sunday, October 25, 2009
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