Dia challenge, a summary

Readers of this blog may have heard mutterings about the recent controversy surrounding the auction by Sotheby's of a number of artworks owned by the Dia Art Foundation. In brief, this is what happened.

Earlier this month, two of the founders of the Dia Art Foundation filed suit in the Manhattan state court to prevent the organisation from selling a number of artworks from its collection.

The Foundation, a nonprofit organisation, which was established in 1974 to initiate, support, present and preserve art projects, had decided to sell some of its works at Sotheby’s to raise money. Founders Heiner Friedrich and Fariha de Menil Friedrich, sought an injunction against the Foundation and Sotheby’s to prevent the sale of the artworks. At the time, it was reported:

Many of the works named in the lawsuit were donated by Mr. and Ms. Friedrich when they created the foundation with the art historian Helen Winkler. The lawsuit claims that selling the works to private collectors would remove them “from public access and viewing in direct contravention of Dia’s entire intent and purpose.” The auction would be a breach of an “implied covenant of good faith and fair dealing” with the Friedrichs and the artists who made the works, the suit states.

The case was, however, dropped. The New York Times reported:

The founders, Heiner Friedrich and Fariha de Menil Friedrich, said in a written statement through their lawyers on Tuesday morning that while they consider the sale “utterly wrong” and “against Dia’s mission,” the foundation is “our precious child, and we do not wish to continue to oppose it through legal action.”

Accordingly, the sale of the works went ahead. It appears, from Sotheby's catalogue that the foundation raised a significant amount of money. Indeed Cy Twombly's Poems to the Sea (below) raised almost $22 million alone. Let's hope the foundation puts the money to good use.

Source:   The New York Times, 7 November 2013 & 12 November 2013

Trying to make the MET pay

Ever been to the Metropolitan Museum of Art in New York City - better known as the MET? Did you pay to get in? Did you know you didn't have to? I have to admit the first time I went it was not clear that the entrance fee was not compulsory. It was only on a subsequent visit that I was asked what I wanted to pay that I realised that I had a choice. It turns out this is not uncommon. However, some appear to have had a more extreme reaction than myself.

Reuters reports that:

... a lawsuit filed on Tuesday against the museum complains that most museum-goers have no idea that the "recommended" $25 entrance fee is nothing more than a suggestion.

The plaintiffs include a member of the museum, along with two Czech tourists who purchased single-day admissions. They argue the museum employs misleading signs and other techniques to dupe its 6 million annual visitors into believing they must pay to gain access.

The museum's rent-free lease with the city mandates that it open its doors to the public for free on multiple days a week, although it is permitted to ask for a voluntary fee. But the lawsuit says the museum deliberately deceives its visitors into believing that the charge is mandatory.

Signs above the admissions desk that list the entrance fees feature the word "recommended" in small type below the word "admissions" in larger, bold type. The lawsuit also pointed out that visitors are funneled in lines to the admissions desks, where cashiers await to collect the fee.

"MMA has misled, and regularly misleads, members of the general public to believe, on all days of the week during times when the MMA is open, that they are required to pay the Admission Fees in order to enter Museum Exhibition Halls," the lawsuit claimed.

... [The] complaint asks for an injunction [requiring the museum to make its policy clearer to visitors] as well as unspecified damages for all museum visitors who, like the three named plaintiffs, paid to enter with a credit card.

This is the second lawsuit filed against the MET challenging its admission fee. Back in November 2012, two members of the MET (represented by the same counsel as this latest claim) brought a very similar claim for consumer fraud, and for charging unlawful admission fees in violation of New York State law.

A spokesperson for the MET says that the claims are unsustainable. It remains to be seen what the court thinks.

Source: Reuters, 5 March 2013, New York Post, 15 November 2012

Instagram's New Terms Cause Backlash and a Class Action Lawsuit

Photo sharing site Instagram found itself in hot water when it released updated terms of service on 18 December.  Users and commentators alike speculated that the shifts in the terms of service meant that Instagram intended to employ user content on the site for commercial purposes.  Essentially, the new terms give Instagram the right to use and the ability transfer its right to use, user content without compensation of any kind to users.  The new terms also simultaneously limited the rights of users to engage in class action lawsuits against Instagram, limited damages to $100, waived users' ability to obtain injunctive relief, limited the statute of limitations to one year, and required agreement to arbitration.  The announcement caused an outcry on the internet, and Instagram released a public statement on the site’s blog attempting to clarify the terms and quell the fear and fury surrounding the changes.  The terms have again been modified from the previous proposed version, however much of the terms users find most egregious remain present.  Although there is conflicting information, some reports state that as much as 25% of Instagram’s users deleted their accounts over the new terms, which are to come into force 19 January, 2013. 

However, a loss of users is not the only problem looming for the site—on 21 December, 2012, a class action lawsuit was filed against Instagram in U.S. District Court for the Northern District of California related to the new terms, Funes v. Instagram Inc., 12- CV-6482 (N.D. Cal.).  Essentially, the complaint theorizes that with its new terms Instagram is appropriating users’ property and then shielding itself from liability for doing so.  The plaintiff brings claims for breach of contract for violation of the implied covenant of good faith and fair dealing, for violation of California Civil Code §3344 (the statute protects the individual's ability control the commercial use of his or her name, image, likeness, or other aspects of one's identity), breach of bailment, and for violation of California business law.  The case also seeks declaratory relief regarding the lawfulness of Instagram’s conduct as well as injunctive relief and attorney’s fees.  The lawsuit appears to be the first of its kind.  

Even though Instagram amended its proposed terms of service, attempting to provide some clarification on 20 December, the new terms still grant Instagram “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service.”  It seems that many photo sharing, blogging, and cloud file storage websites have terms granting some sort of limited license related to user content to the hosting site.  However, the license Instagram proposes has much greater breadth than those included in most standard terms.   

Although it is unclear whether users will have any success in a lawsuit against Instagram, these events have important implications.  This case may signal a shift in the way user content is utilized by host sites, as well as in users’ ability to contest terms they find egregious through legal process.  As more photographers and artists rely on the internet for marketing and the ability to store images via cloud computing, the terms of service employed by hosting sites will be of critical importance to those who are concerned about how and where their images may be used in the future.