Monday 30 September 2013

A New Hearing for the Lady in Blue

In a previous entry, I wrote about an appeal to be heard by Russia's new Intellectual Property Court involving images of the Thomas Gainsborough painting "Portrait of a Lady in Blue."  The case was filed against fashion designer, Ila Yots, by the owner of the painting, The State Hermitage Museum.  Yots appealed an unfavorable decision requiring that she stop using the images.  Last week, the IP Court, which has been operational since July of this year, ordered a new hearing for the designer.  The case has been remanded to the Commercial Court of Stavropol Territory.

Sunday 22 September 2013

Department of Transport strikes again

After taking aim at Texan art installation "Playboy Marfa", the Department of Transportation in Texas has struck again - this time at "Prada Marfa" (pictured below).

Playboy Marfa was an installation by Richard Phillips, as commissioned by Playboy Enterprises. The Texan authorities decided to remove it on the grounds that it was not art but advertising, since it comprised an enormous Playboy bunny image (see report here) and no outdoor advertising permit had been granted for the work.

Now Prada Marfa, another art work placed on a highway outside the Texan town of Marfa, is up for removal for the same reason. Unlike the relatively new Playboy installation, Prada Marfa has been in situ since 2005. The installation is a perfect copy of a small Prada shop situated in the middle of bleak desert landscape, complete with Prada products in the window and, of course, the Prada logo featuring prominently. It was designed by Scandinavian artists Michael Elmgreen and Ingar Dragse with Miuccia Prada's permission, but was not commissioned by her.

The installation is much beloved and it's easy to see why; the stark, clean Prada aesthetic complementing, yet completely subverting, the stark, clean beauty of the empty desert landscape it sits within. It is a strange and thought provoking sight drawing sightseers in their thousands. Ironically however it also breaches the 1965 Highway Beautification Act on the basis that it is "an illegal outdoor advertising sign".

Undoubtedly it does serve the purpose of advertising Prada, even if this is simply an unintended side effect common to pop culture art works. But on a practical level the decision to remove the artwork, if carried out, will deprive Texas of an art work that "hasn’t cost taxpayers anything and that has been elected one of the most-worth-seeing roadside attractions in the States", as co-designer Elmgreen put it.

Whether Prada Marfa goes the way of Playboy Marfa remains to be seen.

Friday 20 September 2013

Due diligence in art transactions: are informal authentications enough?

A painting said to be by Jackson Pollock and that was
discredited in 2003.
The scandle of art forgery involving the NY-based Knoedler Gallery is now turning  into a defamation suit at the New York State Supreme Court in Manhattan.

Ann Freedman, the former president of the now-closed Knoedler & Co. Gallery, has filed a defamation lawsuit against the famous art dealer Marco Grassi. He doubted on the New York Magazine whether the Knoedler dealer did any due diligence on the works she previously bought from Glafira Rosales, which turned out to be all fakes. 

Ms. Rosales, a Long Island art dealer, claimed to had got them from a previous collector she refused to identify. 

The Knoedler Gallery sold these works over the next few years to trusting collectors at high prices, based on the Rosales' assumptions that it was the collection of around forty unknown works of famous Abstract Expressionists such as Mark Rothko, Robert Motherwell and Barnett Newman.

The outcome was devastating to the art world, since it was discovered that the artworks were painted in a studio in Queens by a Chinese artist for few thousand dollars for each one. The Knoedler Gallery closed after 160 years of business, after many collectors had filed lawsuits for fraud and breach of warranty or some of them had requested their money back, as Jack Levy did in 2002. The Goldman Sachs co-chairman had bought an untitled Jackson Pollock for $ 2 million, bringing it to the International Foundation for Art Research for authentication. IFAR refused to attribute the painting to Pollock and Mr. Levy asked his money back.

Now the defamation suit challenges Mr. Grassi statements on the New York Magazine where he said that "A gallery person has an absolute responsability to do due diligence, and I don't think she did it. The story of the paintings is totally kooky. I mean, really. It was a great story and she just said, 'this is great".

Ann Freedman affirmed she was diligent in her transaction by receving informal authentications. In many case, the opinions that Ms. Freedman gathered were not official authentication, but opinions from 20 experts among which curators from the Museum of Modern Art, the National Gallery of Art and the Solomon R. Guggenheim Museum, that told her the paintings were all authentic based on their own evaluation. 

Is gathering informal authentication sufficient for complying with due diligence in art transaction?

Source: Wall Street Journal, September 11, 2013

Doig denies design

As reported here, earlier this year a lawsuit was filed in the US against Scottish artist Peter Doig by one Robert Fletcher, who claimed that Doig had given him a painting more than thirty years earlier, when he was known as Peter 'Doige'. Fletcher had filed the suit after Doig had refused to acknowledge the painting in question as his work.

Lawyers for Doig have now filed papers alleging that it is simply a case of mistaken identity. The National Post reports:
The painting over which they have brought suit was not painted by Peter Doig,” one of the artist’s attorneys, Chicago lawyer Shuyash Agrawal, stated bluntly in an Aug. 28 submission to an Illinois district court. 
And in the same submission, Agrawal delivered a potentially devastating blow to Fletcher’s claims: “We have now found the person who actually painted the work at issue.” Doig’s lawyer identified an Alberta man named Peter Doige — who had died in February 2012 and was memorialized on the website of an Alberta labour union — as the work’s true artist.  
A simple Google search for ‘Peter Doige’ revealed several Canadians with the first name of ‘Peter’ and a family name of ‘Doige,’” stated Agrawal. “Among these Google results was an ‘in memoriam’ listing on the website of the Alberta Regional Council of Carpenters and Allied Workers (ARC) regarding the passing of one of its members, Peter Doige in February 2012.” 
Furthermore, Doig's lawyers say that they have found Peter Doige's sister, Marilyn Doige Bovard, who has signed an affidavit stating that her brother was an artist and, more importantly, that he had served time at Thunder Bay Correctional Facilities, where Fletcher claimed to have met the artist of his painting.

Nevertheless, it seems that Fletcher is still convinced the work is by Peter Doig. His quest for the real truth continues, for now.

Source: National Post, 13 September 2013

Wednesday 18 September 2013

Sotheby's battles US Government over Cambodian statue

Another update, this time to the Cambodian art dispute reported here.

By way of reminder, in August 2011, the US government intervened in a claim by the Cambodian government in respect of an ancient sandstone statue that was listed for auction by Sotheby's. Sotheby's then withdrew the statue from sale.

In a latest development, both sides to the dispute have filed motions with the US District Court in Manhattan accusing the other of unethical behaviour.

On it's side, Sotheby’s is accusing the US government of intervening in their negotiations to sell the statue in a private deal which would have allowed for the return of the statue to Cambodia. Their claim is that the government blocked the deal as it wanted all the credit for the statue's return.

Meanwhile, the prosecutors have accused one of their former colleagues,  Jane A. Levine, who now works for Sotheby's, of providing them with “false and misleading information” in relation to the statue.

Sotheby's, additionally, filed further evidence disputing the ability of the US government to bring the case, and asked the judge to defer the further exchange of discovery until the court has ruled on on its motion to dismiss the case.

The court has set the next hearing for 14 October.

Source: The New York Times, 13 September 2013

Tuesday 17 September 2013

Update: Kunsthal loot and blue suede shoes

By way of latest news in relation to the saga of the paintings stolen from the Kunsthal gallery (reported here, here and here), where the lawyers for the accused had said that the paintings had not been destroyed and could be returned, now they have said that the accused thieves will not reveal where the works have been hidden following the refusal by the Romanian court of a request for the case to be tried in the Netherlands.

Bloomberg reports that at a pretrial hearing in Bucharest for the trial of Radu Dogaru, the alleged ringleader, his lawyer said that 'his client was trying to avoid a more-stringent sentence in his homeland by offering to return the five under his "control" in exchange for being transferred to Holland and, if convicted, serving his time there'.

Don't you criticise my shoes
Before the court could deal with this issue, however, there was apparently several hours of debate as to what it should do about the shoes of one of the lawyers for the accused. The man in question had reportedly made the sartorial decision to wear blue suede sneakers with florescent green stripes to court, which, understandably, enraged the judge. Ignoring the lawyer's protestations that the shoes were expensive and highly fashionable, and that the judge was clearly biased and should be replaced, the judge declined to replace himself and fined the lawyer 5,000 lei ($1,488).

Meanwhile, the Dutch foundation that managed the stolen pieces, seemingly despaired by the on-going saga, has given up on ever recovering the paintings, recovering €17 million from its insurers, and accordingly surrendering its ownership rights to the paintings.

Sources: Bloomberg, 10 September 2013, The New York Times, 10 September 2013

Friday 13 September 2013

Fate of "Big Mountain Jesus" Now Rests with the Ninth Circuit Court of Appeals

At Whitefish Mountain Resort in Montana, one may encounter Jesus--in the form of a six foot tall statue, adorned in a baby blue robe, and from time to time, ski goggles and mardi gras beads.  This iconic local statue remains the topic of an extended battle between an atheist group, the Freedom From Religion Foundation (FFRF), and the U.S. Forest Service and the Knights of Columbus.  The statue, known as Big Mountain Jesus, was placed in its current location in the 1950's by the Knights of Columbus.  Due to the passage of time and varying historical narratives, the precise reasons for the existence of the statue are unknown.  By some accounts the statue was meant to honor veterans of World War II who had served in the 10th Mountain Division, as they had encountered similar shrines throughout their time in the mountain communities of Europe.

Although Big Mountain Jesus stands atop a private ski area, the ski area's land is leased from the U.S. Forest Service.  Every ten years, the Knights of Columbus seek a permit for the statue to remain situated.  According to FFRF, a statue of Jesus on public lands violates the Establishment Clause of the First Amendment to the U.S. Constitution, which mandates government neutrality between individual religions as well as between religion and non-religion.

In June 2013 the U.S. District Court for Montana issued a decision upholding the Forest Service's decision to again approve the Big Mountain Jesus permit.  Acknowledging intense political pressure and involvement from the National Register of Historic Places in favor of reissuing the permit, but dismissing that pressure as a basis for its decision, the court held that the continued presence of Big Mountain Jesus was not a Constitutional violation.  The court relied on the principal that not all religious symbols run afoul of the Establishment Clause.  To the extent that the statue may have had religious significance, the court found that over the course of the last 60 years the statue had become a historic landmark and curiosity more secular in nature.  Ultimately, the court held that the U.S. Forest Service's discrete act of issuing a permit did not reflect governmental endorsement of any religious sect.  Further, the court reasoned that because the government neither owns the statue nor controls the land it stands on, Big Mountain Jesus was more aptly considered private speech by its owners that cannot reasonably be interpreted to reflect government promotion of religion.

FFRF recently appealed that decision to the Ninth Circuit Court of Appeals.  The matter is scheduled to be fully briefed by January 2014.

Thursday 12 September 2013

Artist faces child pornography charges

The recent federal elections may have overshadowed this latest art news out of Australia.

Australian artist, Paul Yore, was charged last week with producing and possessing child pornography. The charges were laid following the seizure by Victorian police of pieces of his art back in June of this year. The artworks were from one of his installations called "Everything's F..ked" - which was on display at a Melbourne gallery at that time.

One of Yore's allegedly pornographic pieces

The case is scheduled to be heard in the Melbourne Magistrates Court in November. If it goes to trial, it is likely to be a landmark case on the censorship of art.

Source: The Australian, 7 September 2013

Monday 9 September 2013

Art After Death: coming soon ...

From our friend and colleague Jani McCutcheon (Associate Professor in the Law School, University of Western Australia), comes news of this exciting event, which we are are happy to publicise.  We do hope that some kind soul who attends will be able to send Art & Artifice a report which we can publish on this weblog.

While this symposium is aimed at lawyers, we hope that plenty of artists will be there to express their views. 

Faculty of Law

Art After Death Symposium



  • Monday, 14 October 2013


  • 2.00pm-5.30pm



Registration closes Wednesday, 9 October 2013


Email:Jennifer Rhodes
Telephone: (08) 6488 2995


Pippin Drysdale, Boab (detail) 2006 A half day symposium exploring legal, financial and other issues affecting artists after death.
As an artist, your primary concern is developing your professional practise, in whatever guise that might take.  But, have you ever pondered what will happen to your work when you are no longer here?  Who will decide where your work can be shown, who can reproduce it and for what purposes can it be copied or used?
Like any other personal property, planning for your artwork, including who will own your work, administer your copyright and protect your reputation, after your death is an important but rarely discussed consideration.
Art After Death provides a unique opportunity to hear from prominent legal, accounting and arts professionals about the issues you may need to consider when planning for your will and estate.  You will also have the rare opportunity to ask questions and raise issues with the panel during the session.
Legal Professionals
If you are a practising legal professional, this is a fabulous opportunity to attend a unique CPD session covering aspects of intellectual property, estate planning law and ethical issues when dealing with artist estates.

Full attendance at the symposium entitles a practitioner to 3 CPD points.  1 point for each category: Legal Skills & Practice; Ethics and Professional Responsibility and Substantive Law/Legal Knowledge

Arranged and supported by The University of Western Australia Law School, The University of Western Australia Cultural Precinct and Artsource. The symposium will be led by Jani McCutcheon and a panel of industry experts, see brochure for details.

Public Talk

Following the symposium, participants are invited to attend a public talk by author Katrina Strickland in relation to her recent book, Affairs of the Art, which discusses how the reputations of some well know Australian artists have been managed by the galleries, agents, and other arts industry professionals entrusted with these significant Australian artist's estates. 
Time: 6.00pm - 7.00pm
Venue: Lawrence Wilson Art Gallery, UWA
register for the public talk