The Art Law Podcast: Recent Episodes
Steven Schindler & Katie Wilson-Milne
The Art Law Podcast hosts discussions about topics at the intersection of art and law with art lawyers Steve Schindler and Katie Wilson-Milne and their distinguished guests.
Steve and Katie speak with Swiss art lawyer Anne Laure Bandle about the subject of her book “The Sale of Misattributed Artworks and Antiques at Auction” - the problem of “sleepers,” or misattributed and undervalued works of art sold at auction. We all dream of buying a painting at a yard sale that we later discover to be worth millions of dollars. On this podcast, we discuss the market incentives and structures that prevent discovery of sleepers.
Notes for this episode: https://artlawpodcast.com/2025/04/24/the-problem-of-sleepers/
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Katie and Steve discuss topics based on news and magazine articles and court filings and not based on original research unless specifically noted.
Steve and Katie welcome back Professor Amy Adler to discuss the First Amendment’s free speech protections as they apply to artistic expression in the context of several recent incidents. Specifically, they discuss the police seizure of certain Sally Mann photographs from the Modern Art Museum of Fort Worth in the context of obscenity and child pornography laws, the removal of the For Freedoms billboard depicting the march on Selma in Montgomery, Alabama, and the lawsuit about the Nirvana “Nevermind” album cover depicting a naked baby.
Notes for this episode: https://artlawpodcast.com/2025/03/25/updates-on-art-free-speech-and-government-censorship/
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Katie and Steve discuss topics based on news and magazine articles and court filings and not based on original research unless specifically noted.
Katie and Steve speak with renowned German art lawyer Dr. Katharina Garbers-von Boehm about the law of title in Germany as it applies to art, including the concepts of good and bad faith in considering ownership, the legal primacy of possession, and the doctrine of adverse possession that allows possessors of stolen property, like Nazi-looted art, to take good title after a certain number of years. They discuss differences under U.S. law, particularly with respect to stolen property, soft laws that encourage voluntary actions that the law may foreclose, and recent German law developments surrounding Nazi-looted art.
Notes for this episode: https://artlawpodcast.com/2025/02/21/the-law-of-stolen-art-in-germany/
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Katie and Steve discuss topics based on news and magazine articles and court filings and not based on original research unless specifically noted.
Katie and Steve speak with their colleague Eden Burgess and guest Dr. Ndubuisi C. Ezeluomba, Curator of African Art at the Virginia Museum of Fine Art and an expert in Benin Bronzes, about the artistic history of Benin City in current day Nigeria, the fate of the Benin Bronzes that dispersed around the world after the British invasion and looting of Benin Kingdom in 1897, and how we should think about ownership and possession of these valuable objects today.
Notes for this episode: https://artlawpodcast.com/2025/01/13/who-should-control-the-benin-bronzes/
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Katie and Steve discuss topics based on news and magazine articles and court filings and not based on original research unless specifically noted.
Steve and Katie speak with former SCH colleague Rebecca Fine, now CEO of Athena Art Finance, about her career, how art finance is structured and diligenced, who art finance is for, and the risks that Athena and other lenders try to mitigate.
Notes for this episode: https://artlawpodcast.com/2024/11/18/the-ins-and-outs-of-art-finance/
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Katie and Steve discuss topics based on news and magazine articles and court filings and not based on original research unless specifically noted.
Katie and Steve speak with preeminent art advisor Megan Fox Kelly about the proliferation of resale restrictions in art transactions, what problems they seek to address, who they purport to help, how effective they are, and the legal issues they raise. They discuss the overlapping cultural, social, and legal aspects of these contractual terms.
Notes for this episode: https://artlawpodcast.com/2024/10/08/enforceability-and-effectiveness-of-art-market-resale-restrictions/
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Katie and Steve discuss topics based on news and magazine articles and court filings and not based on original research unless specifically noted.
Steve and Katie speak with two preeminent French art lawyers, Anne-Sophie Nardon and Olivier de Baecque, about disputes surrounding the authenticity of art and how French and US courts get involved in these disputes. Because many of the world’s greatest artists made their home in France, many of the experts on these artists and their work are in France, and French courts have long adjudicated disputes about the accuracy of opinions made by experts regarding authenticity.
Notes for this episode: https://artlawpodcast.com/2024/09/09/france-v-usa-legal-remedies-for-authentication-disputes/
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Katie and Steve discuss topics based on news and magazine articles and court filings and not based on original research unless specifically noted.
Steve and Katie speak with two preeminent French art lawyers, Anne-Sophie Nardon and Olivier de Baecque, about disputes surrounding the authenticity of art and how French and US courts get involved in these disputes. Because many of the world’s greatest artists made their home in France, many of the experts on these artists and their work are in France, and French courts have long adjudicated disputes about the accuracy of opinions made by experts regarding authenticity.
Notes for this episode: https://artlawpodcast.com/2024/09/09/france-v-usa-legal-remedies-for-authentication-disputes/
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Katie and Steve discuss topics based on news and magazine articles and court filings and not based on original research unless specifically noted.
Steve and Katie discuss several art law topics in this end-of-season episode. They talk about internal thefts at the British Museum, the ongoing Victorious Youth litigation between Italy and the Getty Trust, the Damien Hirst backdating scandals, the litigation between the Manhattan DA and the Art Institute of Chicago, and the recent litigation between the Donald Judd Foundation and Kim Kardashian.
End-of-season message from Steve and Katie: Thank you to all of our listeners for your support, and we look forward to bringing you season 8 in September!
Notes for this episode: https://artlawpodcast.com/2024/07/09/season-end-art-law-roundup/
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Steve and Katie speak with Italian lawyer Giuseppe Calabi and art historian Sharon Hecker about Italy’s cultural patrimony laws granting state institutions control over the use of images of cultural property long in the public domain. They discuss the legal, ethical, and practical issues with such laws and their specific application to uses of the Vitruvian Man by Leonardo da Vinci located at the Gallerie dell'Accademia in Venice and the statue of David by Michelangelo located at the Gallerie dell'Accademia in Florence.
Notes for this episode: https://artlawpodcast.com/2024/06/03/italys-expansive-control-over-cultural-heritage/
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Steve and Katie talk with their colleague, Tom Kline, about the Nazi’s program of remaking European culture, the enormous theft and displacement of art that occurred as part of that program, and the efforts of the heirs of Jews displaced during World War II to reclaim art and cultural property. The discussion focuses on the Washington Principles, the updated best practices issued upon their 25th anniversary, and how claims for restitution have changed over this time.
Notes for this episode: https://artlawpodcast.com/2024/05/13/the-25th-anniversary-of-the-washington-conference-principles-and-where-we-are-on-nazi-looted-art/
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Katie and Steve speak with colleague Eden Burgess about the Native American Graves Protection and Repatriation Act (NAGPRA), its history, purpose, and requirements to repatriate cultural property and human remains to Native American tribes and Native Hawaiian Organizations, as well as new regulations that are leading major museums to remove or close exhibitions of Native American and Hawaiian objects while taking action to implement NAGPRA in consultation with tribes that have ownership claims.
Notes for this episode: https://artlawpodcast.com/2024/04/02/the-native-american-graves-protection-and-repatriation-act-gets-some-teeth/
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Katie and Steve take a deep dive into the history and current status of the Parthenon Marbles with Alexander Herman, director of the Institute of Art and Law in London and author of the recent book The Parthenon Marbles Dispute: Heritage, Law, Politics.
Notes for this episode: https://artlawpodcast.com/2024/03/04/the-parthenon-marbles-dispute/
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Katie and Steve discuss three recent litigation updates. They discuss the outcome of the trial in the case brought by Dmitry Rybolovlev against Sotheby’s for aiding in the alleged fraud of Yves Bouvier, the most recent Richard Prince fair use copyright infringement cases brought by two photographers, and the Ninth Circuit decision applying Spanish law to deny return of a Pissarro painting to the family of Lily Cassirer, whose property was looted by the Nazis and is currently located in a Spanish museum.
Notes for this episode: http://artlawpodcast.com/2024/02/05/art-law-litigation-updates-fraud-fair-use-and-nazi-looting/
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Steve and Katie take a look at the many developments around generative AI and fine art, including debates and litigation on copyrightability and infringement as well as the policy concerns surrounding increased use of generative AI to create artworks.
Notes for this episode: http://artlawpodcast.com/2024/01/09/2023-ai-and-art-wrap-up/
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Katie and Steve talk with renowned art lawyer Pierre Valentin about the EU’s new and striking import regulations on cultural goods, including fine art and cultural property, that prohibit the import of applicable items not created in the EU into the EU if they cannot be shown to have been legally exported from their countries of origin. We discuss the impetus for these regulations, the problem with discerning ownership and export history of cultural property, and the key problems with the new regulation’s successful implementation and enforcement.
Notes for this episode: http://artlawpodcast.com/2023/12/06/new-hurdles-to-importing-art-in-the-eu/
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Steve and Katie talk with their colleague Tom Kline about his client, the Massachusetts Charitable Mechanic Association (MCMA), and its decades-long quest to reclaim the dramatic marble statue The Wounded Indian by Peter Stephenson, modeled after the Roman sculpture The Dying Gaul. MCMA was founded by Paul Revere in 1795 and was gifted the statue in 1893. After vacating its storied headquarters in 1958, MCMA was told the statute had been destroyed. Only in 2023 did it get the statue back.
Notes for this episode: http://artlawpodcast.com/2023/11/07/returning-the-wounded-indian-statue-to-massachusetts/
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Steve and Katie speak with Dr. Carina Popovici, CEO and Founder of Art Recognition, an art and technology startup that uses AI systems to evaluation the authenticity of artworks. They discuss the problems with authentication in the traditional art market and the promise and limitations of AI in solving these problems along with some real-world examples.
Notes for this episode: http://artlawpodcast.com/2023/09/06/ what-can-artificial-intelligence-offer-art-authentication/
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Katie and Steve speak with WIPO economists Alexander Cuntz and Matthias Sahli about their recent article, Intermediary liability and trade in follow-on innovation, published in the Journal of Cultural Economics in February 2023. Their research looks at how intermediaries in the art market altered their behavior after the Second Circuit’s decision in Cariou v. Prince, which was seen as greatly expanding permissible fair use in appropriation art. THIS PODCAST WAS RECORDED BEFORE THE SUPREME COURT’S DECISION IN THE WARHOL CASE, WHICH PULLED BACK ON THE TRANSFORMATIVE USE ANALYSIS FOR COPYRIGHT FAIR USE.
Notes for this episode: http://artlawpodcast.com/2023/07/05/do-market-players-react-to-court-decisions-impacting-art/
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Katie and Steve talk to Philippa Loengard, copyright expert and Director of the Kernochan Center for Law, Media and the Arts at Columbia Law School, about the much-anticipated Supreme Court decision in Andy Warhol Foundation v. Goldsmith,which resets and limits the applicability of “transformative” fair use as an exception to copyright infringement.
Notes for this episode: http://artlawpodcast.com/2023/06/05/scotus-says-warhol-not-so-fast-the-limitations-of-transformative-use/
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Katie and Steve talk to attorney Emily Poler, founder of Poler Legal, about the recent lawsuit between the iconic French fashion house Hermès and an NFT creator, Mason Rothschild, over Rothschild’s “MetaBirkin” NFTs. Hermès claimed that Rothschild infringed Hermès’ trademark in the name “Birkin.” Hermès prevailed on this claim (and others) in a jury trial earlier this year. Katie, Steve, and Emily discuss the contours of this lawsuit and the reach of trademark law to police fashion brands, copyright’s limitations, and trademark law’s applicability to artistic expression, especially in the context of NFTs.
Notes for this episode: http://artlawpodcast.com/2023/04/04/fashion-nfts-and-artistic-expression/
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Steve and Katie speak with Amy Whitaker about her new book with Nora Burnett Abrams The Story of NFTs: Artists, Technology and Democracy. Amy describes her vision for the promise of NFTs for artists and a more equitable art market and discusses the democratic incentives NFTs create in this world. They discuss NFTs in the context of the current moment of uncertainty around the future of cryptocurrency, the blockchain, and the value of NFTs in general and the potential problems and limitations of NFTs within the fine art ecosystem.
The Story of NFTs: Artists, Technology, and Democracy
Notes for this episode: http://artlawpodcast.com/2023/03/01/the-promise-of-nfts-for-artists-and-the-art-market/
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Katie and Steve talk to Spanish art lawyer and scholar, Patricia Fernández, about the history of thousands of artwork seizures during the Spanish Civil War and the Spanish government’s actions with respect to these artworks since then through today.
Steve and Katie speak with appellate litigator David Barrett about the story animating a recent Supreme Court case between the heirs of Lilly Cassirer, who fled Germany in 1939 after surrendering the painting Rue Saint-Honoré Après-midi, Effet de Pluie (Rue Saint-Honoré in the Afternoon, Effect of Rain) by Camille Pissarro to the Nazis, and the Spanish Museum known as the Thyssen-Bornemisza Collection. They discuss the journey of the painting in and out of the United States over a 60-plus-year period before it found its way into the collection of a Spanish museum, the Cassirer family’s efforts to find and reclaim the painting, and the decades-long litigation in California that led to the recent Supreme Court decision overturning a decision of the 9th Circuit applying the Spanish law of adverse possession in favor of the Spanish Museum.
Katie and Steve discuss some recent art museum-related legal(ish) developments, including New York’s new legislation requiring labeling of Nazi-looted art, the AAMD’s long-awaited changes to its deaccessioning policy, and an unusual gift/sale of part of MoMA’s collection.
To open Season 6, Katie and Steve discuss the shocking arrest of Jean-Luc Martinez, director of the Louvre in Paris from 2013 to 2021, related to his involvement in the alleged trafficking of antiquities for the Louvre Abu Dhabi with French criminal lawyer Sarah Arpagaus. They discuss cultural property crimes more broadly and take a detour into the world of French criminal law and its striking difference with the system here in the US.
Steve and Katie speak to anti-money laundering and sanctions expert Paula Trommel of Corinth Consulting about Russian sanctions and their impact on the art market in the short and long term.
Katie and Steve speak with Evan Beard, currently Executive Vice President at Masterworks, about fractional ownership of art and new art securitization trends and initiatives, who the issuers and investors in this space are, and what they can achieve through these alternative investment structures.
Steve and Katie give a brief update on New York City’s recent repeal of its regulations governing auctioneers and auction practices. These regulations provided consumer protections by enforcing a measure of transparency into the auction process, such as requiring auctioneers to publicly disclose when they had a financial stake in an object being sold. Interestingly, major stakeholders appeared surprised by the repeal, which they had not requested and seemed indifferent about.
Susan Mumford and Chris King, co-founders of ArtAML, return to the Podcast and talk with Steve about the recent release by the Financial Crimes Enforcement Network ("FinCEN") of its “Study of the Facilitation of Money Laundering and the Financing of Terrorism through the Trade in Works of Art." To the surprise of Steve and his guests, FinCEN concluded that there is limited evidence of money laundering and little risk of terror financing through the sale of high value art. The discussion focuses on the findings of the study, and its implications, particularly when compared with the existing AML regulations covering the art market in the UK and the EU. (Susan and Chris discussed these requirements with Katie and Steve on the November 1, 2021 episode entitled: “How Anti-Money Laundering Regulations are Hitting the Art Market in the United Kingdom and What Participants Can Do to Comply.”) Recorded just days after Russian troops invaded Ukraine, the conversation turned to the impact that sanctions against Russia and its oligarchs are likely to have on the high-value art market, and what art market participants must do to not run afoul of these sanctions.
With Katie on a parental leave, Steve speaks with Herrick Feinstein’s Victor Rocco about his firm’s representation of the Republic of Turkey in litigation brought by Turkey to possess a millennia-old Anatolian marble statue (the Stargazer) owned by Michael Steinhardt and sold by him through Christie’s. (We previously had counsel for Christie’s and Steinhardt on the podcast.) After a trial in the Southern District of New York, Turkey lost for the primary reason that they could not provide facts supporting their claim to ownership of the Stargazer, specifically that it was stolen from modern day Turkey after 1906. Turkey has appealed that decision, and Victor and Steve discuss the trial and Turkey’s arguments on appeal.
In a re-release of last June's episode, Katie and Steve speak (again) with digital art and NFT enthusiast Jason Bailey about the sudden rise of NFTs in the art world, what they really are, why they have value, and who is interested in them and why.
Katie and Steve speak with veteran cultural property and art lawyer, Tom Kline, about his representation of Christie’s and Michael Steinhardt in litigation brought by Turkey to possess a millennia-old Anatolian marble statue (the Stargazer) owned by Steinhardt and sold by him through Christie’s. After a trial in the Southern District of New York, Turkey lost for the primary reason that they could not provide facts supporting their claim to ownership of the Stargazer, specifically that it was stolen from modern day Turkey after 1906.
Steve and Katie talk to Susan Mumford and Chris King, co-founders of ArtAML, about the recent roll out of AML regulations covering art market participants in the United Kingdom, who is implicated, how they can comply, and what this means for art businesses and the culture of secrecy in the art market generally. The requirement to determine and seek documentation of the ultimate beneficial owner on each end of the transaction is something financial institutions have long done, but not art dealers. ArtAML is an online platform designed to help art market participants comply with their legal obligations of due diligence and documentation. This conversation is of particular interest to those in the United States as the United Kingdom is the second largest art market outside the United States, and we expect AML regulations to roll out to the art market in the United States soon.
Katie and Steve speak (again) with digital art and NFT enthusiast Jason Bailey about the sudden rise of NFTs in the art world, what they really are, why they have value, and who is interested in them and why.
Katie and Steve finally tackle the evolving area of fair use as a defense to copyright infringement with Luke Nikas, attorney for the Andy Warhol Foundation and Partner at Quinn Emanuel. Luke represents the Foundation in its ongoing litigation with photographer Lynn Goldsmith about Warhol’s use of Goldsmith’s photograph of the artist Prince as an artist study for a series of screen prints. Goldsmith claims Warhol infringed her copyright in the original photograph. The Warhol Foundation says Warhol’s use of the photograph is fair use under the Copyright Act. The trial court agreed with the Warhol Foundation and the Second Circuit recently agreed with Goldsmith. Katie, Steve, and Luke discuss this complicated area of law and how artists navigate (or don’t) around it.
Steve and Katie speak with legal scholar Mira Sundara Rajan regarding the international landscape for artist moral rights protections, including the adoption of moral rights laws in the developing world, common law versus civil law jurisdictions, and the connection between moral rights and cultural heritage concerns. Steve, Katie, and Mira dive into two case studies: the Indian case Amar Nath Sehgal v. Union of India (2005) involving government removal of and damage to famous murals from a government building and the more recent controversy surrounding the removal of the Picasso stone murals on the Y-Block government buildings in Oslo, Norway.
Steve and Katie speak with British art lawyer and General Counsel of Phillips auction house Martin Wilson about European anti-money laundering regulations applicable to art market participants and their recent implementation in the UK. Generally, these regulations require art dealers, galleries, and auction houses to register with the government and undertake due diligence on every art transaction over a certain threshold amount, including with respect to the identity of all ultimate beneficial owners of the transacting parties. Steve, Katie, and Martin discuss the practicalities of compliance, the general secrecy of the art market and the reasoning behind such regulations, and Martin’s recently published book, Art Law and the Business of Art. Steve and Katie also discuss the anti-money laundering regulatory environment in the United States as it applies to the art market and what may be just around the corner.
Steve and Katie end 2020 with a few updates on past podcast episode topics, including 5Pointz and moral rights litigation, the Painted Bride mosaic mural battle, deaccessioning in Baltimore, and pandemic related litigation. We look forward to many more interesting topics in 2021!
Resources:
https://news.artnet.com/art-world/5pointz-additional-2m-attorney-fees-1927310
https://www.inquirer.com/arts/isaiah-zagar-murals-philadelphia-painted-bride-court-case-20201022.html
https://whyy.org/articles/isaiah-zagars-painted-bride-mosaic-could-survive-in-new-plan-for-old-city-site/
https://www.theartnewspaper.com/news/aamd-sends-a-warning-note-to-museum-directors-on-deaccessioning
https://www.artnews.com/art-news/news/baltimore-museum-of-art-deaccession-called-off-sothebys-1234575295/
https://www.latimes.com/entertainment-arts/story/2020-10-29/baltimore-museum-art-deaccession-sale-warhol-marden
https://www.nytimes.com/2020/10/30/arts/design/baltimore-museum-brooklyn-art-auction-sothebys.html
https://www.washingtonpost.com/entertainment/museums/baltimore-museum-warhol-sale/2020/12/04/1643859e-3317-11eb-8d38-6aea1adb3839_story.html
https://www.latimes.com/entertainment-arts/story/2020-12-29/deaccession-museum-art-auctions-2020
Steve and Katie discuss the recent deaccessioning controversies at the Brooklyn Museum, Baltimore Museum of Art, and Everson Museum of Art in light of the ethical guidelines, new AAMD guidance, and the economic and social climate. They also discuss the recent postponement of the Philip Guston retrospective at the National Gallery, Tate Modern, Museum of Fine Arts Houston, and Museum of Fine Arts Boston due to its depiction of white nationalism and the criticisms of that decision. Please note there have been developments on all these topics since our recording, so please see the resources links for up to date information.
Resources:
AAMD:
https://aamd.org/for-the-media/press-release/aamd-board-of-trustees-approves-resolution-to-provide-additional
https://www.theartnewspaper.com/news/aamd-sends-a-warning-note-to-museum-directors-on-deaccessioning
Brooklyn Museum:
https://www.nytimes.com/2020/09/16/arts/design/brooklyn-museum-sale-christies-coronavirus.html
https://www.theartnewspaper.com/news/brooklyn-museum-steams-ahead-on-deaccessioning
https://www.artforum.com/news/brooklyn-museum-continues-deaccessioning-spree-84242
https://www.artmarketmonitor.com/2020/10/16/brooklyn-museum-to-sell-monet-miro-degas-and-more-at-sothebys-in-second-deaccesioning-round/
Everson Museum of Art:
https://www.latimes.com/entertainment-arts/story/2020-09-14/syracuse-museum-jackson-pollock-auction
https://www.wsj.com/articles/an-art-museum-sells-its-soul-11600808127
https://www.christies.com/features/Expert-view-Jackson-Pollock-Red-Composition-10893-7.aspx
https://www.syracuse.com/entertainment/2020/10/everson-museums-jackson-pollock-painting-sells-for-12-million-at-auction.html
https://www.theartnewspaper.com/news/to-mirror-and-support-community-everson-museum-board-chair-defends-deaccessioning-of-a-pollock
Baltimore Museum of Art:
https://www.nytimes.com/2020/10/02/arts/design/baltimore-museum-deaccessioning.html?smid=tw-nytimesarts&smtyp=cur
https://www.artnews.com/art-news/market/baltimore-museum-of-art-deaccessioning-works-sothebys-1234572422/
https://www.theartnewspaper.com/comment/bma-curators-letter-response-to-deaccessioning
https://www.artnews.com/art-news/news/baltimore-museum-of-art-deaccession-open-letter-1234574032/
https://www.theartnewspaper.com/news/former-trustees-and-donors-ask-state-to-block-sale-of-three-important-works-by-the-baltimore-museum-of-art
https://hyperallergic.com/595171/baltimore-museum-of-art-deaccessions-condemn/?utm_campaign=Daily&utm_content=20201019&utm_medium=email&utm_source=Hyperallergic%20Newsletter
https://www.latimes.com/_preview?_cms.db.previewId=00000175-37f8-da10-a57d-b7f976590000&_date=
Philip Guston:
https://www.artnews.com/art-news/news/philip-guston-postponement-tate-national-gallery-directors-1234572527/
https://docs.google.com/document/d/1LVXTB30hp2oNz1Vm4P8jpXgg4sIieWNbdaqWqffHcN4/edit
https://www.washingtonpost.com/entertainment/museums/national-gallery-postponement-guston-show-klan-images/2020/10/07/a35adb32-0831-11eb-a166-dc429b380d10_story.html
https://www.newyorker.com/magazine/2020/10/19/philip-guston-and-the-boundaries-of-art-culture
https://www.nytimes.com/2020/10/28/arts/design/philip-guston-retrospective-date.html
https://www.theartnewspaper.com/news/tate-suspends-senior-curator-over-guston-controversy
Additional:
https://www.latimes.com/entertainment-arts/story/2020-10-07/palm-springs-art-museum-deaccession-frankenthaler
https://www.artnews.com/feature/most-controversial-museum-deaccessioning-plans-1234575019/
Steve and Katie speak with old master art dealer and scholar Robert Simon about his discovery of the painting Salvator Mundi attributed to Leonardo da Vinci and sold by Christie’s in 2017 for almost half a billion dollars. They discuss Simon’s purchase of the painting from an obscure New Orleans auction house, the painting’s painstaking restoration and scholarly review, and what we know and don’t know about its history over the last 500 years.
Resources:
https://www.robertsimon.com/leonardos-salvator-mundi
https://salvatormundirevisited.com/
https://www.nationalgallery.org.uk/exhibitions/past/leonardo-da-vinci-painter-at-the-court-of-milan
https://www.christies.com/lotfinder/Lot/leonardo-da-vinci-1452-1519-salvator-mundi-6110563-details.aspx
We are re-releasing our podcast with journalist and author Ben Lewis in anticipation of our forthcoming discussion with Robert Simon. We talked with Ben in depth about his book, The Last Leonardo: The Secret Lives of the World’s Most Expensive Painting, about the history and ultimate sale by Christie’s auction house in November 2017 for just over $450.3 million of the painting Salvator Mundi attributed to Leonardo Da Vinci. Our next episode with Robert Simon will revisit this story from a different perspective.
Resources: https://www.amazon.com/Last-Leonardo-Secret-Expensive-Painting/dp/1984819259 https://www.christies.com/features/Leonardo-and-Post-War-results-New-York-8729-3.aspx https://www.theguardian.com/books/2019/apr/17/last-leonardo-secret-lives-worlds-most-expensive-painting-ben-lewis-review https://www.thetimes.co.uk/article/the-last-leonardo-by-ben-lewis-review-is-salvator-mundi-really-worth-450-million-vqvk2gjx5 https://www.nytimes.com/2019/03/30/arts/design/salvator-mundi-louvre-abu-dhabi.html
Katie and Steve speak with Michael Weinberg, the Executive Director of the Engelberg Center of Innovation Law and Policy at NYU Law School, about 3D digitization of gallery, library, archive and museum (“GLAM”) institution collections, the goals and motivations for such projects, and how digitization implicates (or doesn’t) rightsholders. They also discuss the open access framework in which these digitization projects occur, the difference between 2D and 3D copying, and the legal and ethical frameworks at play.
Resources:
https://glam3d.org/
https://www.law.nyu.edu/centers/engelberg
https://www.law.nyu.edu/centers/engelberg/team/weinberg
https://law.justia.com/cases/federal/district-courts/FSupp2/25/421/2325910/
Katie and Steve speak with Jay Sanders, Executive Director and Chief Curator of Artists Space, a vanguard artist-centered arts nonprofit, founded in 1972 and located in New York City, about the devastating impact of the pandemic shutdown on small arts nonprofits, as well as the inspiration and community being cultivated in this moment of hardship.
Resources:
https://artistsspace.org/about
https://www.americansforthearts.org/by-topic/disaster-preparedness/the-economic-impact-of-coronavirus-on-the-arts-and-culture-sector
https://www.artnews.com/art-news/news/arts-organizations-coronavirus-losses-report-1202687488/
https://hyperallergic.com/565254/covid-19-unesco-icom-study/?utm_medium=email&utm_campaign=D052120&utm_content=D052120+CID_5b52f14555a5e4874a6468534c7b8eb5&utm_source=HyperallergicNewsletter&utm_term=13%2520of%2520Museums%2520Worldwide%2520May%2520Close%2520Permanently%2520Due%2520to%2520COVID-19%2520Studies%2520Say
Katie and Steve welcome back to the podcast museum director, art commentator, and art historian Max Anderson to discuss what art museums (now closed) are dealing with during the Covid-19 crisis in terms of mission, funding, audience engagement and an uncertain future. They discuss structural issues and practices pre-existing the pandemic that put pressure on museums’ stated missions and appeal, as well as potential shifts in focus and priority that may come out of this current moment of reorganization and prioritization.
This is the first of several episodes of the Art Law Podcast discussing the impact of the pandemic and its accompanying shut downs on the art world.
Resources:
http://www.maxwellanderson.com/about http://docplayer.net/15254796-Metrics-of-success-in-art-museums.html
https://aamd.org/our-members/from-the-field/museums-and-covid-19 https://aamd.org/for-the-media/press-release/aamd-board-of-trustees-approves-resolution-to-provide-additional https://www.washingtonpost.com/entertainment/museums/this-is-how-bad-things-are-for-museums-they-now-have-a-green-light-to-sell-off-their-art/2020/04/29/b5492a5e-899e-11ea-8ac1-bfb250876b7a_story.html
https://abcnews.go.com/Business/coronavirus-exposes-vulnerability-nyc-museums-museum-workers/story?id=69957903 https://www.bloomberg.com/news/articles/2020-05-06/the-moma-has-taken-a-chainsaw-to-its-staff-budget-and-exhibitions https://www.theartnewspaper.com/news/whitney-and-new-museum-lay-off-staff-members-as-economic-fallout-continues https://hyperallergic.com/558008/metropolitan-museum-lays-off-81-employees-now-estimates-150m-in-losses/
In this bonus episode, Steve analyzes the recent Second Circuit decision affirming the 2018 decision awarding $6.75 million to the artists of 5Pointz, whose works were whitewashed and torn down by the building’s owner in 2013. To put this important decision into a broader context, we have re-released our April 2018 episode on 5Pointz, where we discuss the district court case in which the aerosol artists asserted violations of their moral rights under the Visual Artist Rights Act, the U.S. moral rights statute. In that episode, Steve and Katie discuss the origin and contours of moral rights, how they fit into U.S. copyright law, the story of 5Pointz and the laws around street art and graffiti. They are joined by famous aerosol artist Jonathan Cohen (Meres One), 5Pointz event planner and artist representative Marie Cecile Flageul, and Renee Vara, the artists’ expert in the 5Pointz trial.
This month, we are updating and rereleasing one of our most popular episodes, Art of the Chase: Inside Art Auctions. In this episode, we take a close look at art auctions – how they work, their place in the art market and the rules and regulations that confine/define them. Auctions at Sotheby’s and Christie’s now regularly net tens and sometimes hundreds of millions of dollars for a single work. Christie’s sold Leonardo da Vinci’s Salvator Mundi painting for $450 million in 2017, still, by far, the highest price ever garnered by a piece of art at auction. At the same time, much about the auction process remains secret. The identity of the buyer and seller is often known only to the auction house, and the reserve price (below which an artwork will not be sold) is known by the auctioneer but not the bidders. While the auctioneer may not sell a work of art below its reserve price, it can bid on the work below the reserve to get the auction going. Steve and Katie discuss these issues and others having to do with regulation, transparency and potential conflicts, and welcome famous Sotheby’s auctioneer Oliver Barker to take us behind the scenes of a big auction.
Resources:
http://www.sothebys.com/en/specialists/oliver-barker/bio.html
https://www.nytimes.com/2013/01/28/arts/design/as-art-market-rise-so-do-questions-of-oversight.html
https://www1.nyc.gov/assets/dca/downloads/pdf/about/auctioneer_law_rules.pdf
https://www.princeton.edu/ceps/workingpapers/203ashenfelter.pdf
https://insight.kellogg.northwestern.edu/article/place_your_bids
http://blogs.cornell.edu/info2040/2015/10/15/auction-psychology-emotions-behind-bidding/
https://mindhacks.com/2012/09/19/bbc-column-auction-psychology/
https://www.thecut.com/2016/12/inside-the-mind-of-a-million-dollar-art-bidder.html
Steve and Katie discuss two recent art world controversies involving small, local nonprofits seeking to raise money through asset divestment. The di Rosa Center for Contemporary Art in Napa Valley is attempting to deaccession most of its permanent collection of Bay Area art works in the face of vocal art world opposition. In Philadelphia, the proposed sale of the Painted Bride Art Center building by the organization’s board, including its one of a kind mosaic mural façade, has raised public protest and legal challenge. Both entities claim they need funds to continue their mission, while critics say the act of selling off the assets at issue in each case directly undercuts such mission. Resources: di Rosa Center for Contemporary Art: http://www.dirosaart.org/history/ https://datebook.sfchronicle.com/art-exhibits/napas-di-rosa-center-to-sell-most-of-its-fabled-art-collection https://nonprofitquarterly.org/napa-museum-plan-to-deaccession-art-works-raises-art-communitys-ire/ http://www.artnews.com/2019/08/20/dirosa-foundation-open-letter/ http://www.artnews.com/2019/08/28/di-rosa-foundation-deaccessioning-support/ https://www.artforum.com/news/di-rosa-contemporary-art-center-director-responds-to-concerns-over-plan-to-sell-holdings-80550 Painted Bride Litigation: https://paintedbride.org/about-us/ https://philly.curbed.com/2017/11/28/16709332/painted-bride-building-theater-for-sale https://observer.com/2019/09/philadelphia-painted-bride-art-center-condos/ https://philly.curbed.com/2018/9/14/17861972/painted-bride-building-art-center-old-city-philadelphia https://whyy.org/articles/judge-old-citys-painted-bride-cant-be-sold-for-condos/
Steve and Katie have a wide ranging conversation with art historian and former lawyer, Joan Kee, about the topic of her new book, Models of Integrity: Art and Law in Post-Sixties America. Their conversation probes artists’ embrace and rejection of legal structures in contemporary America, as well as artistic indifference about and dependence on the law.
Resources: https://lsa.umich.edu/histart/people/faculty/jkee.html https://www.amazon.com/Models-Integrity-Art-Post-Sixties-America/dp/0520299388 https://christojeanneclaude.net/artworks/realized-projects http://www.suzannelacy.com/early-works
CORRECTION: After the recording of this podcast, the San Francisco School Board, in the face of community protest, reconsidered its decision to remove the George Washington murals from George Washington High School and will instead cover them.
Against the backdrop of global museums distancing themselves from the Sackler name, two highly controversial Whitney Biennials involving activist calls for the destruction and removal of an artwork and, more recently, calls for the resignation of a Board member who made a fortune building a network of defense equipment companies, and numerous other controversies in the United States about the identity of board members, museum donors and artists, Steve and Katie speak with Max Anderson about controversial board members, donors and works of art. Max is currently the President of the Souls Grown Deep Foundation and was previously the Director of the Whitney Museum of Art and the Dallas Museum, among other leading museum director roles.
About Max Anderson: http://www.maxwellanderson.com/about Souls Grown Deep Foundation: http://www.soulsgrowndeep.org/ Resources: https://www.theartnewspaper.com/news/what-price-philanthropy-american-museums-wake-up-to-public-concern https://www.nytimes.com/2019/07/25/arts/whitney-warren-kanders-resigns.html https://int.nyt.com/data/documenthelper/1509-warren-kanders-resignation-whitney/41cf3263664a16cf1a29/optimized/full.pdf#page=1 https://www.nytimes.com/2019/05/15/arts/design/met-museum-sackler-opioids.html https://www.nytimes.com/2019/07/26/arts/design/george-washington-san-francisco-murals.html https://www.nytimes.com/2019/08/21/arts/design/alice-walker-defends-george-washington-murals.html https://www.nytimes.com/2017/09/13/arts/design/walker-art-center-scaffold.html http://www.artnews.com/2018/07/19/following-sam-durant-controversy-walker-art-center-forms-indigenous-public-art-selection-committee/ https://hyperallergic.com/382141/after-protests-from-native-american-community-walker-art-center-will-remove-public-sculpture/
Steve and Katie talk about and compare two recent Holocaust-era art cases decided in New York, one in state court on summary judgment and one in federal court on a motion to dismiss grounds. Both cases involve the claims of heirs to recover artwork that left the hands of Jewish owners persecuted by the Nazis, but they otherwise greatly differ.
Resources: Reif v. Nagy, Index No. 161799:15 (First Dep’t July 9, 2019) http://artlawpodcast.com/wp-content/uploads/2019/08/Reif-v.-Nagy-Index-No.-16179915-First-Dep’t-July-9-2019.pdf
Zuckerman v. The Metropolitan Museum of Art, No. 18-634 (2d Cir. 2019)
http://artlawpodcast.com/wp-content/uploads/2019/08/Zuckerman-v.-The-M etropolitan-Museum-of-Art-No.-18-634-2d-Cir.-2019.pdf
http://artlawpodcast.com/wp-content/uploads/2019/08/Brief-and-Special-Appendix-for-Plaintiff-Apellant-Dkt.-51-May-25- 2018.pdf
http://artlawpodcast.com/wp-content/uploads/2019/08/Brief-for-Defendant-Appellee-Dkt.-102-Jul-20-2018.pdf
http://artlawpodcast.com/wp-content/uploads/2019/08/Reply-Brief-for-Plaintiff-Appellant-Dkt.-105-Aug-3-2018.pdf
Katie and Steve talk with Ben Lewis, author of the new book, The Last Leonardo: The Secret Lives of the World’s Most Expensive Painting, about the history and ultimate sale by Christie’s auction house in November 2017 of the painting Salvator Mundi which they attribute to Leonardo Da Vinci for just over $450.3 million.
Resources: https://www.amazon.com/Last-Leonardo-Secret-Expensive-Painting/dp/1984819259 https://www.christies.com/features/Leonardo-and-Post-War-results-New-York-8729-3.aspx https://www.theguardian.com/books/2019/apr/17/last-leonardo-secret-lives-worlds-most-expensive-painting-ben-lewis-review https://www.thetimes.co.uk/article/the-last-leonardo-by-ben-lewis-review-is-salvator-mundi-really-worth-450-million-vqvk2gjx5 https://www.nytimes.com/2019/03/30/arts/design/salvator-mundi-louvre-abu-dhabi.html
Katie and Steve speak with Laura Patten and Michael Shepard about financial crimes, including money laundering, involving art. They discuss high profile examples of art-related financial crime, the reality and challenges of compliance for galleries, dealers and other art market participants, and the regulatory landscape in the U.S. and Europe. Laura formerly worked with the CIA and FBI on high stakes art crime investigations. Michael has worked for years on anti-money laundering and financial crimes investigations and programs. Both now work with Deloitte’s art and finance initiative and financial crimes practice.
Resources: https://www2.deloitte.com/us/en/profiles/lpatten.html https://www2.deloitte.com/us/en/profiles/mshepard.html https://www.natlawreview.com/article/art-and-money-laundering https://www.theartnewspaper.com/news/us-anti-money-laundering-bill-could-reappear-early-next-year https://www.natlawreview.com/article/new-application-anti-money-laundering-rules-to-art-transactions http://responsibleartmarket.org/ https://www.ft.com/content/03b9a598-2136-11e8-8d6c-a1920d9e946f
In this episode of the podcast, Steve and Katie are in conversation with Jason Bailey, the founder of the Artnome blog and host of the Dank Rares blockchain art podcast about technology and fine art. With a background in art and tech, Jason is one of the foremost authorities on art and technology. The conversation with Jason is wide-ranging from blockchain, provenance, smart contracts, digital art, cryptocurrency, blockchain-driven auctions, privacy, and generative art.
Resources: https://www.artnome.com/ http://dankrares.com/ https://www.christies.com/exhibitions/2018/art-and-tech-summit-exploring-blockchain https://superrare.co/ https://www.cryptokitties.co/ https://portion.io/ https://hyperallergic.com/468060/christies-sells-ai-generated-art-for-432500-as-controversy-swirls-over-creators-use-of-copied-code/ http://rarepepedirectory.com/ https://www.theparisreview.org/blog/2018/01/23/much-pepe-scenes-first-rare-digital-art-auction/
This month Katie and Steve talk about a few important art law cases from 2018 ranging from Nazi looting, to Italian fisherman discovering an ancient Greek statue, to the risks catalogue raisonné committees face when offering even indirect opinions on authenticity. The specific cases discussed are Von Saher v. Norton Simon Museum of Art at Pasadena, No. 16-56308 (9thCir. 2018); the Getty Bronze case decided by the Italian Court of Cassation; and Mayor Gallery Ltd. v. The Agnes Martin Catalogue Raisonné LLC, No. 655489/2016, 2018 WL 1638810 (N.Y. Sup. Ct. Apr. 5, 2018).
Resources: https://cases.justia.com/federal/appellate-courts/ca9/16-56308/16-56308-2018-07-30.pdf?ts=1532970120 https://www.scotusblog.com/case-files/cases/von-saher-v-norton-simon-museum-of-art-at-pasadena/ https://www.theartnewspaper.com/news/cranach-norton-simon - https://www.nytimes.com/2018/12/04/arts/design/getty-bronze-italy-ruling.html https://www.theartnewspaper.com/news/italian-court-says-getty-museum-must-surrender-a-prized-bronze - https://news.artnet.com/art-world/judge-dismisses-lawsuit-agnes-martin-committee-1260539 http://www.artnews.com/2018/04/06/dismissing-suit-agnes-martin-catalogue-raisonne-committee-judge-bolsters-embattled-art-authentication-field/ 2018.04.05 Order Granting Martin Motion to Dismiss
Katie and Steve speak with Nanne Dekking, the founder and CEO of Artory and Chairman of the European Fine Art Fair, about Artory’s efforts to use blockchain to create a transparent registry of art sales, the general challenges to transparency in the fine art market, the problem of detecting fakes and forgeries and trustworthy counterparties, and blockchain’s limitations.
Resources: https://www.artory.com/about-us/ https://news.artnet.com/market/christies-artory-blockchain-pilot-1370788 https://www.businesswire.com/news/home/20181115005195/en/Artory-Launches-World%E2%80%99s-Publicly-Art-Collectibles-Registry https://www.forbes.com/sites/zoharelhanani/2018/12/17/how-blockchain-changed-the-art-world-in-2018/#16774ef83074 https://www.christies.com/features/Blockchain-and-the-art-market-9318-3.aspx https://www.ft.com/content/1c5062d8-900b-11e8-bb8f-a6a2f7bca546
Katie and Steve speak with Philip Hoffman, founder and CEO of The Fine Art Group, about art funds, art financing, and financial guarantees of auctions sales. They also explore how art is performing as an asset class. Philip started the first “art fund” in 2002, and he is one of the world’s leading experts on the financialization of art.
Resources: The Fine Art Group - https://www.fineartgroup.com/en/ http://www.artfundassociation.com/index.html https://www.nytimes.com/2018/06/08/arts/art-financialization-blockchain.html https://www2.deloitte.com/us/en/pages/financial-services/articles/art-and-finance-report.html https://www.ft.com/content/0d4a50f0-cbff-11e5-a8ef-ea66e967dd44 https://www.artsy.net/article/artsy-editorial-art-loans-popular-ultra-wealthy-good-economic-times-bad https://www.theartnewspaper.com/news/guarantees-the-next-big-art-market-scandal
Artist Aviva Rahmani speaks to Steve and Katie about her artistic practice investigating and using the law. Her current work, Blued Trees Symphony, is a musical and visual art work installed along miles of proposed pipeline expansion on land subject to possible eminent domain. Rahmani has copyrighted the work and plans to use the Visual Artist Rights Act to prevent the art’s destruction, thereby frustrating the building of pipeline. Resources: You can learn more about Aviva Rahmani and Blued Trees Symphony here: http://ghostnets.com/# http://ghostnets.com/projects/blued_trees_symphony/blued_trees_symphony.html http://www.abladeofgrass.org/fellows/aviva-rahmani/ http://www.abladeofgrass.org/events/mock-trial/ https://hyperallergic.com/439553/aviva-rahmani-cardozo-school-of-law-stop-a-pipeline/ Episode Transcription: Steve Schindler: Hi, I’m Steve Schindler. Katie Wilson-Milne: I’m Katie Wilson-Milne. Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law. Katie Wilson-Milne: And vice versa. The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City. Aviva Rahmani: So if you look down on any of the measures it recapitulates a simple refrain (singing). Steve Schindler: So, Katie, do you want to tell our listeners about the new idea that we have to have some shorter interviews with artists who engage with the legal world? Katie Wilson-Milne: Yeah, so we are going to be releasing a series of podcasts intermittently in which we interview artists who tell us about how their work engages legal structures. So, rather than Steve and I and a guest examining the art world through law and legal structures, we are going to flip it and ask artists to tell us about how their art is inspired by and reflects the law. Okay, we are here today with the artist Aviva Rahmani, who is going to share with us some information about her practice and her work using law as a medium and a tool in her work. Aviva began her career as a performance artist founding and directing the American Ritual Theater, performing throughout California. She graduated from the California Institute of the Arts and received a Ph.D. from Plymouth University in the United Kingdom. She has presented workshops on her theatrical approach to environmental restoration and her transdisciplinary work has been exhibited internationally at many prestigious museums and exhibition spaces. So, Aviva, thank you for being with us. Aviva Rahmani: I am honored to be here with you. Thank you for inviting me. Katie Wilson-Milne: So just for our listeners who are not familiar with your work can you talk about your artistic practice and then also maybe when the legal system first entered your practice. Aviva Rahmani: Well what’s interesting about law is that it’s a system to preserve civilization. And I often think about the role of art in the anthropocene as the glue that may hold us together through this very perilous time. So if you think about systems that way, it’s a hop, skip, and a jump between law and the judicial process and any other system that preserves culture. My interest specifically in the kind of law I’m working with now developed in the late 70s when a lot of artists were using appropriation. And what I noticed was that appropriation was very often an excuse to rip off other artists, other people in general, and very often women. That really incensed me. So I began to inform myself and follow some of the arguments. So when I had this opportunity that came up that became the Blued Trees Symphony I jumped on it because I thought, “wow, that will be really, really interesting.” Take the concept of copyright law and culture jam it so that it serves the society as the law for Eminent Domain, which is supposed to protect property, is supposed to protect land owners and actually serves corporations right now. Katie Wilson-Milne: So what is the Blued Trees project? Aviva Rahmani: The Blued Trees project began when a small group of activists, who called themselves “fracktivists” and were fighting fracking, looked for an artist who could work with them. They had been inspired by Peter von Tiesenhausen in Alberta, Canada who had copyrighted his entire ranch when the natural gas pipelines wanted to go through. And that intimated them enough that they backed off, but that was a few years ago and it was never tested in the courts. So they came to me and said, "Can we somehow copyright the trees that are in the path of these corridors?" And I said, “no, that’s what Monsanto does. We are not going to do that.” But we could copyright the relationship between the trees, the community, the people, and the habitat. And then I looked at where the pipelines were projected to go and I thought well that would be interesting. Think of it as a miles long installation. And if you are looking at it aerially you could think of it as a musical line. So that was the beginning. And then I designed a series of designated trees in those corridors that would represent musical notes but also would represent an obstacle to any heavy machinery that might want to go through. And if you look down on that line it creates an actual musical score that can be sung and performed and I’m now using it as the basis for a complete symphony and an opera. Katie Wilson-Milne: So the idea is if you took an aerial view of the path of a proposed pipeline you are creating an art project along that path. Aviva Rahmani: Within that path. Katie Wilson-Milne: And there is no pipeline yet so this is sort of anticipatory. Aviva Rahmani: Correct. Yes. And I specifically only work with landowners whose land has not yet been condemned by the corporations. That’s really important, because if the land has been condemned and they were to act on this project it becomes designated only as activist art which can’t be defended under copyright law. And the landowners are liable to prosecution. They could even be jailed. Katie Wilson-Milne: So you have the permission of the landowners to create this project on these trees. Aviva Rahmani: Correct. In every case we are invited by private landowners and are given their permission and then we work with them to develop the project. Steve Schindler: And do you feel this as the work of visual art or a work of musical composition and does it matter for your purposes? Aviva Rahmani: I think it matters a great deal but I would rephrase that and say that this is a synsthetic project. I’m not a synesthete but this is a cross over between audio, sound, music and the visual and the sculptural. It was copyrighted as sonified biogeographic sculpture which would be a new category under the Visual Artists Rights Act, VERA. Katie Wilson-Milne: Right. So the part of the copyright law that you are referring to invoking here is the Visual Artists Rights Act, right? Aviva Rahmani: Correct. Katie Wilson-Milne: And that’s different than standard copyright law which just gives you a right to the creative aspects of your work so someone couldn’t make a poster of your work without your permission or something like that, which is also true -- that’s still true if it’s copyrighted. But what the Visual Artists Rights Act does -- and tell me, if I’m wrong -- that you think you are invoking is this idea that the work, the physical work not just the image, can’t be destroyed without the involvement of the artists somehow. That even though you don’t own the land, you don’t own the trees -- so it’s as if you have sold the painting and you no longer own it -- you still have some rights to that work of art because you created it and that’s what the Visual Artists Rights Act gives you that, that reach as the artist to control work that’s not necessarily located on your property. Aviva Rahmani: Well it becomes a flying wedge into a lot of interesting legal problems. For example, as you know the copyright law was initially created during the French Revolution. The phrasing then was to protect the spirit of art. That is very operational in Europe but it hasn’t really been tested in the United States. So that’s one part. Katie Wilson-Milne: The moral rights, yeah. Aviva Rahmani: Yes. Steve Schindler: We tend to view copyright more in a sort of property scheme… Aviva Rahmani: Yes. Economically versus the droit morale. Correct. So that’s one big issue. What does the culture value? Is it only economic? According to the IPCC and the United Nations, no. There is the cultural piece. The cultural piece is just as important as the economic. And then as you also know, there are many suits that are being moved along to the Hague that represent protecting rivers, mountains, other sacred places that all go to the question of Earth Rights. In this case because the way the project was developed was specifically to make it integral with the local habitat, it cannot be moved. So this would become an entirely different category, which is another interesting point, but also, it immediately comes up against Eminent Domain Law and that’s the part that’s really, really interesting. Katie Wilson-Milne: So yeah you are predicting or setting up this collision between Eminent Domain and our baby moral rights statute in the United States. Aviva Rahmani: That’s correct. And baby is probably the right way to put it because as people living in the anthropocene if we want to survive we better grow up and get really adult about what we are protecting and why. Katie Wilson-Milne: So where is this project physically right now? Aviva Rahmani: It started in Peekskill, New York. Each section of the project which I call a measure in the symphony is one-third mile long. In Peekskill we sent Spectra Corporation a Cease and Desist law which they promptly ignored. Rather they sent me a Dark Money Letter. A Dark Money Letter is something that says, “we are going to destroy you if possible. Whether it’s possible or not we will destroy you.” Katie Wilson-Milne: This is the company that has plans to build the pipeline and take over this land? Aviva Rahmani: Correct. And they are the same company which the present president has heavily invested in that destroyed Standing Rock in North Dakota so they have a long history of ignoring community rights and limits and specifically the water. Steve Schindler: You said Eminent Domain has not been exercised yet and that’s really a governmental function. What legal right does this private company have to be writing letters and ignoring your Cease and Desist letter? Aviva Rahmani: This is where it gets more complicated. Steve Schindler: I’m sure. Aviva Rahmani: And even more important and interesting. Originally Eminent Domain Law was set up to protect “the scared home” and to support the public good. And public good became more and more narrowly defined in the past maybe 20 to 30 years to mean the economic interests of large corporations. And actually besides the question of whether the economic interests of large corporations truly serve the public good it’s been the conservative judges like Clarence Thomas who have taken exception to that interpretation and specifically used the term “a perversion” of the intention of Eminent Domain. It’s also very interesting because when you talk about the scared home you immediately open the door to the question of Earth Rights and the sacred in general. Then you go back to the spirit of art and what is the function of art? And again, what is the public good? Is it possible that the public good could include a spiritual aspect that is interpreted and expressed in art? Katie Wilson-Milne: You raise an interesting point and there are many areas in the law where politics and legal interpretation don’t neatly align the way I think we think they do on the hot button issues today. But you are right. There is expansion of Eminent Domain where the government can take more and more land for private purposes and not public purposes. We have seen that evolve over time and it is some conservative judges who have said wait that is an expansion of government power. I don’t like expansion of government power. So they are the ones who are really against that. That is an interesting pattern that is something to think about. Aviva Rahmani: It would be particularly interesting with Kavanaugh because he touts himself as a conservative. Will he then come into conflict with some of the other judges like Thomas? Katie Wilson-Milne: Or will he agree? Aviva Rahmani: Or will he agree? Correct. From a political point of view one would anticipate that he couldn’t possibly disagree since he has allied so strongly with this president. Katie Wilson-Milne: Yeah. I don’t know. I mean I could see that he would take the Clarence Thomas view that this is an expansion of government power since he likes to say he is an originalist and a literal interpreter but we will see, Aviva, we will see. Aviva Rahmani: We certainly will. Katie Wilson-Milne: So in this project are you working with lawyers? Aviva Rahmani: Yes. Katie Wilson-Milne: I mean it sounds like part of it is the statement of the project and what the emotional impact of viewing the work and thinking about it. But part of it actually has an activist function. You are planning to actually do something. Aviva Rahmani: I’ve been very careful about the term ‘activist’ because if it’s termed activist in the courts, it’s immediately disqualified. So I have worked very hard on establishing the evidence that it’s permanent. That it has been very carefully thought through as an esthetic project, that I have the support of art professionals. For example, in the mock trial, Ben Davis was the person who swayed the judge. And he swayed her on the basis of defining what is important art? The mock trial came about because although we really wanted to litigate the project and we had several miles by then that we wanted to litigate, and we were hoping that we might have done a test case in Virginia because we had over 200 trees that had been painted as part of the project. Katie Wilson-Milne: Meaning you would bring claims under the Visual Artists Rights Act to prevent the destruction of that land because it would also have destroyed the art work? Aviva Rahmani: Correct. So in Virginia what happened was that FERC, Federal Energy Regulatory Committee in effect ignored all the community input and rubber stamped the corporations to simply go forward. When we spoke with the lawyers there what we realized immediately was that we needed local lawyers because of the jurisdictional details. The lawyers there were afraid that they didn’t have enough experience with copyright law. The copyright lawyers I was already working with like Gale Elston in New York and Patrick Riley who was working out of California didn’t feel that there was enough case law for them to be able to say to the local lawyers, “go forward on this and then we can stand on our advice without being held liable.” So in the end we put in letters and testimonials about the importance of the project culturally, locally to the community and so on and so forth but we could not go forward legally. Steve Schindler: Right, because isn’t one of the requirements of invoking VERA in the way that you would like to invoke it - and we have discussed this on a prior episode relating to the 5Pointz street art - is that you have to show that the work that you are trying to protect is of a recognized stature. Aviva Rahmani: Exactly. Steve Schindler: That’s a very vague term and it’s not specifically defined in the statute. But how did you go about trying to make that case? Aviva Rahmani: That was actually my priority from the beginning. Patrick Riley was the lawyer who filed the initial copyright registrations. And the advice he gave me then was, “win this in the court of public opinion before you step into the court room.” Steve Schindler: That sounds like good advice. Aviva Rahmani: It was really good advice. So I would say the first 2 years of the project my entire focus besides actually expanding the project was to get articles written, to see films made, to do interviews like the one we are doing right now so we could build up a body of evidence to bring to trial. The mock trial came about because we had not been able to find a lawyer who was willing to litigate and I was really angsting about this with Deborah Fisher at a Blade of Grass and she said, “why don’t we just a mock trial?” And I had thought if we went to trial, that in itself would be a fascinating performance. Katie Wilson-Milne: Yeah. Aviva Rahmani: But this was another way of coming at it. I know you participated Katie. You did a phenomenal job. Everybody did a phenomenal job in pulling that off. We had April Newbauer, who was the federal judge from Queens. We had real jury, we had real lawyers, we had real witnesses. There are lots of wonderful photographs we got out of it. And the upshot was that we did get an injunction. Katie Wilson-Milne: So how was it set up? Did you know how it was going to go ahead of time? How spontaneous was it? How scripted? Aviva Rahmani: It was not scripted at all, but the roles were very clearly defined. So, for example, we brought in one of the trees that had been cut down and we had some somebody be a witness translator for the tree. And we piped in the sound of part of the symphony and then she translated what that music meant. What it meant to the forest to be cut down to the rest of the tree’s family, to the water and so on and so forth. Steve Schindler: And did you videotape this? Of course. Aviva Rahmani: Of course. Steve Schindler: So here’s an interesting at least observation from my point. As lawyers, when we get ready to go to trial and have a case we often do mock argument or mock trials. The reason that we do them is so that when we go to court we can refine our arguments. Sometimes you have a mock jury to understand how jurors are going to relate to the arguments that you have been making to lawyers during the case. But do you view the mock trial as part of the work of art or a predictor? Aviva Rahmani: Absolutely. A minor detail on the mock trial was I don’t know how to put it in my CV. It can’t be categorized as a one person show. It was initiated by A Blade of Grass. It wasn’t an exhibition in any conventional sense. It’s not even part of a group exhibition. Steve Schindler: And who was the author? I mean I guess it’s a group project of some sort. Aviva Rahmani: Yeah. So it goes to copyright questions. Katie Wilson-Milne: It’s a performance with many authors. Aviva Rahmani: It was definitely a performance. So all I do in my CV is I have an initial paragraph of narration that says, “and we had a mock trial on April 20 and we got an injunction.” Katie Wilson-Milne: So, one interesting thing about your work, Aviva, is how closely you are working with lawyers. That you are not just sort of using some legal concept as an inspiration to expose an injustice or just draw attention to an issue. You are actually working with the law with the idea that you are going to do something within the legal system. Aviva Rahmani: Right. Katie Wilson-Milne: And we find we work with people in the art world and artists as well and you know there can be a real difference between how an artist looks at an issue and the way a lawyer looks at an issue. And I’m wondering how you feel in your collaborations with lawyers? If you have observations about coming to these issues from different places, how easy it has been to work with lawyers or you know what you noticed about the different places you are coming from? Aviva Rahmani: Well as you mentioned at the beginning, I started as a performance artist, and I started in performance art from a conceptual point of view. So it’s very easy for me to segue into any other discipline because they are all systemic issues. I find the question of what does the law do very parallel and very equivalent to the question of what does art do? What does music do? What does a forest do? It’s all functional questions. These are fascinating questions but they all feed into each other. I think the great mistake that many of us have made in trying to function in the anthropocene is that we stay in our silos, we stay in our disciplines. We think that if it’s a policy issue then it’s just going to be politicians that deal with policy and see how effective that is. Steve Schindler: I think lawyers are brilliant in staying within their silos. It’s amazing that you can get them to come out. One of the interesting things to me just in terms of craft is when you think about the craft of law, you think about writing in a way that tries to narrow and be very specific about meaning. You don’t want to draft a contract and have multiple possible interpretations even though sometimes you inadvertently do whereas art is all about multiple meanings and layers. And I think it lends itself to be a more flexible way of looking at the world than law can sometime be. Aviva Rahmani: I’m not sure that’s true. Steve Schindler: Okay. Aviva Rahmani: And one of the things that somebody said to me when I was feeling particularly despairing about this whole process was judges are people. They are just as influenced by the media and the conversations they have at dinner as anybody else. As far as how specific the details are in the law versus in art there were a lot of ideas I had to think through about exactly where is the permanence of the project? Exactly where is the art world conversation about the project which was really what swayed the judge. But in art you do the same kind of thinking. How wide must the mark on the trees be in relation to the trunk? Exactly what pigment am I using? Exactly how will there be an acoustic ecology that evolves because the paint has buttermilk in it. Steve Schindler: That was a question I had speaking of the paint. The paint that you are using, I assume that it is friendly to the trees in some way - that just slapping oil paint on trees would probably be inconsistent with what you are trying to do. And yet there is a notion in the Visual Artists Rights Act and Copyright in terms of permanence. And how does the pigment relate to this sort of notion of permanence? Aviva Rahmani: From the point of view of being an artist that was one of the most exciting parts of the whole project. The slurry that was used to paint is a casein. Casein means a pigment that’s mixed with milk. In this case we were mixing non-toxic ultramarine blue, which was translucent, with buttermilk. And, buttermilk is one of the ways you grow moss in Japanese gardens. The mark on these trees we photographed lasted for maybe 2 years, maybe 3 years. But because it had the buttermilk it became part of the ecosystem of the tree, of the roots, of the canopy. And therefore, in effect, it had a second life that emerged from the tree’s interaction with the art project. Steve Schindler: And did you consider, I mean it’s interesting because one of the early cases involved in the Visual Artists Rights Act comes out of Chicago and Kelley Chapman and the case about the gardens. And the courts observation in not applying VERA was that these were works that were subject to sort of natural change and evolving and therefore not sufficiently fixed. Aviva Rahmani: Ephemeral. Steve Schindler: And so is that something that you considered in selecting the paint? Aviva Rahmani: Absolutely. One of the first lawyer that we spoke with after I had spoken to Patrick was Jonathan Richman, and that was one of the first case studies that he brought up and said well that was a ephemeral. How are you going to prove that this is permanent? That’s when all these issues came in. The permanence of the trees themselves, which is the base for the project, the permanence of the relationship to the water shed, to the entire habitat, the permanence of the paint, and how the paint then became integral into a longer term project and how the entire project became the basis for this other much more complex performable piece which is symphonic and operatic. Katie Wilson-Milne: So what’s next? Are you expanding the project physically? What is on the table for bringing legal action? Aviva Rahmani: Absolutely. Well the first task is to continue to expand the project. So this interview helps expand the project, because it reaches a wider audience, a wider circle of public opinion. The symphonic aspect is very structured conceptually so the very first measure in Peekskill was the overture. The first movement of the symphony is the painting and that continues. We just did a measure in Canada - Saskatchewan - and there are other inquiries about doing it elsewhere across this continent and some interest outside this continent. There is interest in Japan, for example. Katie Wilson-Milne: Is there a fracking problem in Asia or in Europe in the same way? Aviva Rahmani: There are fracking problems everywhere one way or another. Steve Schindler: And does the fact that the legal system is different require you to sort of start the study anew? Obviously Japan has a different legal system than we do. Aviva Rahmani: There are different details but the two ideas legally that hold no matter where you are in the world are whether or not the government has the right to take land for private purposes and what protection is there for art and culture in general? Then you come up against a lot of big issues. For example, someone was interested from China. I hate to think what I might come up against there but it would be very interesting. Katie Wilson-Milne: There might not be as much process involved, but it would be interesting. But you know to Steve’s point you might have a different kind of success in Europe where these moral rights are really engrained in the legal system in a way they are very unfamiliar in the United States even though we have this small protection for visual art. Aviva Rahmani: On the other hand all these pipelines in this country are going to Europe to compete as a resource with Russia. Katie Wilson-Milne: So there may be more material there for you. Aviva Rahmani: Yeah. So it gets complicated as we go along and it goes deeper and deeper to the question of Earth Rights and the relationship between Earth Rights and art and culture in order to survive this incredibly ominous period in human history. Katie Wilson-Milne: Do you think you will actually bring a lawsuit? Aviva Rahmani: I would love to. I would love to. Whether that will happen or not, I don’t know. Katie Wilson-Milne: All right. We’ll have you back to talk about these other projects. Steve Schindler: Thank you so much. Thanks for joining us today. And that’s it for today’s podcast. Please subscribe to us on iTunes or wherever you get your podcasts and send us feedback at podcast@schlaw.com and if you like what you hear give us a 5-star rating. We are also featuring the original music of Chris Thompson. And finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good. Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne. Steve Schindler: And I’m Steve Schindler bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law. Katie Wilson-Milne: And vice-versa. The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.
Katie and Steve get an update from attorney Nicholas O’Donnell about the status of the lawsuit he brought on behalf of certain members of the Berkshire Museum for breach of fiduciary duty, among other claims, in relation to the Museum’s sale of much of its valuable art collection to pay for operating and capital expenses. While much of the art has been sold, the members fight on. Nick explains the unusual posture of the case to our listeners. *Note: On Monday, the Massachusetts Appeals Court ended the Berkshire Museum deaccessioning legal saga by upholding a decision by the court that members of the Berkshire Museum do not have standing to sue the Museum challenging the conduct of its Board of Directors.
Resources: https://berkshiremuseum.org/2015site/wp-content/uploads/2018/09/September-12-Update-on-second-tranche-sales.pdf https://www.berkshireeagle.com/stories/two-unsold-berkshire-museum-works-slated-for-november-auction,551589 https://blog.sandw.com/artlawreport/berkshire-museum-tries-to-end-run-pending-appeal-but-member-plaintiffs-decline-to-be-bullied https://www.berkshireeagle.com/stories/justices-tease-out-nuances-in-berkshire-museum-appeals-case,549457 https://www.berkshireeagle.com/stories/court-3-from-lenox-dont-have-right-to-challenge-museum-boards-conduct,552017
Steve and Katie discuss the Nazis’ complicated and perverse relationship with fine art with attorney and author Nicholas O’Donnell. Nick is the author of the recent book, A Tragic Fate: Law and Ethics in the Battle Over Nazi-Looted Art, which tells the story of stolen and appropriated art in World War II Europe and how the U.S. legal system has been instrumental in dealing with claims for restitution decades later. Steve, Katie and Nick start with the historical landscape in 1930s Europe, and discuss some the most contentious and ongoing disputes.
Resources: https://www.sandw.com/professionals-Nicholas-ODonnell.html https://www.amazon.com/Tragic-Fate-Ethics-Battle-Nazi-Looted/dp/1634257332 https://www.amazon.com/Rape-Europa-Europes-Treasures-Second/dp/0679756868 https://www.state.gov/p/eur/rt/hlcst/270431.htm https://www.nytimes.com/2015/03/31/arts/design/the-story-behind-woman-in-gold-nazi-art-thieves-and-one-paintings-return.html https://www.theartnewspaper.com/analysis/cranach-s-adam-and-eve-timeline-of-a-decade-long-legal-battle https://www.smithsonianmag.com/history/true-story-monuments-men-180949569/
On this bonus episode, Katie and Steve discuss the recent SCOTUS case Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018). In this case, a baker claimed his First Amendment free exercise and free speech rights were violated when he was found in violation of a Colorado statute prohibiting disparate treatment based on sexual orientation in public accommodations for refusing to make and sell a wedding cake to a gay couple. The baker refused to make the wedding cake because of his religious objections to gay marriage. Although the controlling decision of the Supreme Court only dealt narrowly with the baker’s free exercise, religious discrimination claim, free expression issues lurked in the background and were taken up directly and forcefully in Justice Thomas’ partial concurrence. Katie and Steve discuss the free expression part of the case and its real or imagined relationship to artist’s rights and government censorship of art.
The Art Law Podcast is excited to showcase new musical compositions by Chris Thompson. Chris is a New York City-based music producer, arranger, and percussionist, who has been a longstanding member of the renowned contemporary music ensemble, Alarm Will Sound. Chris has also performed, recorded, or arranged for a long list of internationally recognized artists and ensembles. You can learn more about Chris and his music on his website, www.chrispthompson.com, where you can also listen to and purchase his most recent album, Lot Hero. Resources: https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf
On this month’s episode, Steve and Katie dive into the charged topic of censorship. With guest Professor Amy Adler they talk about government and non-government attempts to censor art, what the legal boundaries are and where the law actually has little if nothing to say about censorship of art. They describe applicable First Amendment doctrine, apply it to art and examine particular examples of art “censorship” from the culture wars of the 1990s through today, from both the political right and left.
Cases: NEA v. Finley, 524 U.S. 569 (1998) https://supreme.justia.com/cases/federal/us/524/569/ Brooklyn Institute of Arts v. City of New York, 64 F. Supp. 2d 184 (EDNY 1999) https://law.justia.com/cases/federal/district-courts/FSupp2/64/184/2578531/ Miller v. California, 413 U.S. 15 (1973) https://supreme.justia.com/cases/federal/us/413/15/case.html More on Professor Amy Adler: https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.publications&personid=19731 https://its.law.nyu.edu/faculty/profiles/representiveFiles/AAdler%20-WhatsLeft_07384796-06AF-3DCE-319D61EB85F8DEE0.pdf https://its.law.nyu.edu/faculty/profiles/representiveFiles/AAdler%20-ArtofCensorship_072BB4FD-0B4D-10ED-EBBCFBD203509CC8.pdf Articles on topics discussed: https://www.nytimes.com/2000/03/28/nyregion/giuliani-dropping-his-bitter-battle-with-art-museum.html https://www.smithsonianmag.com/history/when-art-fought-law-and-art-won-180956810/ http://www.washingtonpost.com/wp-dyn/content/article/2010/11/30/AR2010113004647.html https://conversations.e-flux.com/t/hannah-blacks-letter-to-the-whitney-biennials-curators-dana-schutz-painting-must-go/6287 https://hyperallergic.com/368290/censorship-not-the-painting-must-go-on-dana-schutzs-image-of-emmett-till/ https://news.artnet.com/art-world/dana-schutz-controversy-recent-protests-changed-museums-forever-1236020 https://www.nytimes.com/2017/03/27/arts/design/emmett-till-whitney-biennial-schutz.html https://news.artnet.com/art-world/walker-sculpture-garden-to-remove-sam-durant-scaffold-977447 https://www.nytimes.com/2017/09/13/arts/design/walker-art-center-scaffold.html https://www.nytimes.com/2017/09/26/arts/design/guggenheim-art-and-china-after-1989-animal-welfare.html https://www.nytimes.com/2018/01/28/arts/design/chuck-close-exhibit-harassment-accusations.html https://www.theartnewspaper.com/analysis/museums-too-what-should-institutions-do-when-artists-are-accused-of-abuse
Katie and Steve give an update on the first round of auction sales as part of the Berkshire Museum’s court sanctioned deaccessioning plan. They discuss the results of the sales, the museum’s current stance, and where that leaves us (hint: dissatisfied).
Resources: https://berkshiremuseum.org/newvision/the-road-ahead/ https://berkshiremuseum.org/2015site/wp-content/uploads/2018/04/pr.Berkshire-Museum-to-offer-13-works-at-auction.pdf https://www.nytimes.com/2018/05/27/arts/design/berkshire-museum-sanctions-aamd.html https://aamd.org/for-the-media/press-release/aamd-statement-on-sanction-of-berkshire-museum-and-la-salle-university
On this month’s podcast, we take a close look at art auctions – how they work, their place in the art market and the rules and regulations that confine/define them. Auctions at Sotheby’s and Christie’s now regularly net tens and sometimes hundreds of millions of dollars for a single work. Christie’s recently sold Leonardo da Vinci’s Salvator Mundi painting for $450 million, by far the highest price ever garnered by a piece of art at auction. At the same time, much about the auction process remains secret. The identity of the buyer and seller is often known only to the auction house, and the reserve price (below which an artwork will not be sold) is known by the auctioneer but not the bidders. While the auctioneer may not sell a work of art below its reserve price, it can bid on the work below the reserve to get the auction going. Steve and Katie discuss these issues and others having to do with regulation, transparency and potential conflicts, and welcome famous Sotheby’s auctioneer Oliver Barker to take us behind the scenes of a big auction. Resources: http://www.sothebys.com/en/specialists/oliver-barker/bio.html https://www.nytimes.com/2013/01/28/arts/design/as-art-market-rise-so-do-questions-of-oversight.html https://www1.nyc.gov/assets/dca/downloads/pdf/about/auctioneer_law_rules.pdf https://www.princeton.edu/ceps/workingpapers/203ashenfelter.pdf https://insight.kellogg.northwestern.edu/article/place_your_bids http://blogs.cornell.edu/info2040/2015/10/15/auction-psychology-emotions-behind-bidding/ https://mindhacks.com/2012/09/19/bbc-column-auction-psychology/ https://www.thecut.com/2016/12/inside-the-mind-of-a-million-dollar-art-bidder.html
Episode Transcription Steve Schindler: Hi, I’m Steve Schindler. Katie Wilson-Milne: I’m Katie Wilson-Milne. Steve Schindler: Welcome to the Art Law Podcast a monthly podcast exploring the places were art intersects with and interferes with the law. Katie Wilson-Milne: And vice versa. The art law podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier ligation and art law boutique in New York City. Oliver Barker: There was that element of, you know, great excitement coupled with complete fear in terms of – kind of the very live nature of that performance, and that’s something which has always appealed to me as an auctioneer. You know, there’s a very live entertainment kind of perspective of that role. Steve Schindler: Katie, I received some feedback on the podcast from listeners this weekend, and one of the comments that was made to me was with respect, particularly to the Berkshire Museum Deaccessioning episode, that this listener didn’t think that we were necessarily impartial enough or that we were taking sides. And I thought about that a little bit and one of the things that I feel is that we're not journalist. We're not pretending to be journalists and we have points of view, and I think we're going to express them. What I think is also important, though, is where possible to have people aligned with different points of view, and we are very open to that. So, I would say if somebody from Berkshire Museum who listened to our podcast, a representative or a member of the Board of Trustees, would like to come on and present their point of view in conversation with us – Katie Wilson-Milne: We would love that. Steve Schindler: We would love that. And similarly with respect to the 5Pointz episode, we spent a lot of time with the artists and people involved in 5Pointz, but certainly if Mr. Wolkoff wants to come on and talk about what motivated him – Katie Wilson-Milne: To develop the site. Steve Schindler: We're happy to have him on – and have the conversation. We will still have the same view points that we have, but we certainly would like to engage with people who have other view points. Katie Wilson-Milne: Right and our goal with this podcast is to raise interesting issues that people may not have thought about in the way that we talk about them that connect the art world and the legal world. But it’s not to provide a completely even handed news article about these topics, it’s to have an interesting discussion between -- mostly the two of us, and we are who we are and we think what we think what we think. I think, actually, it may evolve over time depending on who we talk to, how we present certain issues. We're also constrained by the guests who come on the show, and we want to be respectful of those guests by honoring their opinions and what they have to say. Steve Schindler: So, if you want to come on the show – Katie Wilson-Milne: Send us an e-mail. Steve Schindler: Let us know. Katie Wilson-Milne: So, Steve on this month’s podcast, we're going to talk about auctions. We have the May auctions coming up at the big houses - Christie’s, Sotheby’s and Phillips - both in New York and in other international locations, mainly London, in early May. So, it’s a good time to talk about this. Auctions tend to dominate the art world both in terms of the publicity they get, the prices that come out of auctions, and obviously they are public in a way that private sales are not. So, it’s an exciting topic. Steve Schindler: And we're going to be joined in our podcast by the Sotheby’s auctioneer Oliver Barker who is one of their top auctioneers in the area of contemporary art. Katie Wilson-Milne: Yes, so he is going to give us an insider’s view on what it feels like to be in an auction, what an auction house like Sotheby’s does to prepare for a big auction and what he notices has changed over time in the auction world. So, to back up and give our listeners a little bit of background the art market itself is said to be worth between $40 to $60 billion right now. Auction sales from the main auction houses - which are Sotheby’s, Christie’s and Phillips - make up about $11 billion of that, that was the figure in 2017. Only beat, I think, by the results in 2007, which were over $12 billion. So, it’s a big chunk of the overall art market takes place at art auctions in these three big houses. The biggest group of auctions sales take place in the United States. Although the auctions in London and in Hong Kong are also incredibly significant in terms of the profile works that are sold and the types of buyers that are there. One thing that makes auctions interesting is how psychological the selling format is. So unlike a private sale, where a dealer – whether its Sotheby’s or in a gallery or private dealer – will call a client or a contact and say, “look, I have this work for sale,” you know, “here's what the seller will take it for it.” At an auction you get the atmosphere of people bidding against each other, which seems to have great psychological effect, and there have been sales in the recent past that have taken off tremendously and sold for way more than anyone could have imagined. The most famous example of that is the Salvator Mundi, Da Vinci sale at Christie’s that happened last November, where we had two buyers in the end bidding against each other. And the work ultimately sold for around $450 million, which is far and away the most expensive work that's ever sold at auction ever, ever, ever. Right, Steve? Steve Schindler: Right and in that case you had two buyers who were bidding against each other who each thought that they were bidding against somebody else, as its been reported. And so it drove the price up even higher than any one even contemplated. Katie Wilson-Milne: Well, because of who those two bidders were. Steve Schindler: Sure. Katie Wilson-Milne: So, the story is actually pretty interesting right. We found out after the auction that the ultimately winner of the work was a Saudi prince, and he had been bidding against a friend, actually, from the United Arab Emirates who wanted the work for the new Louvre in Abu Dhabi. They both thought they were bidding against someone from Qatar instead of each other. When they found out that they weren’t and they bidding against each other, which is the only reason it went for $450 million, they apologized to each other and the Saudi prince said, “oh actually you can take the work for the new Louvre in Abu Dhabi in exchange for a yacht.” So, it actually all worked out and the great anxiety about that sale, which is that this masterpiece would go into private hands, now resolved and hopefully it will be see at the Louvre Abu Dhabi. Steve Schindler: I’m not sure what that whole transaction means for art or auctions, but it was amusing. Katie Wilson-Milne: But it happened. Steve Schindler: And – but from the point of view of a seller, you see these incredible bidding wars for certain kinds of objects, but the auctions can be a little bit terrifying for a seller, because you never know what the market is going on any given night. You know at least if you're selling a work at a gallery you have a lot more control over the situation and you can wait until a buyer comes along with a price that you're asking. But in auction one possibility is that the bidding is good and strong and you get a very good price; the other possibility is that there isn’t any bidding that night for a variety of reasons. Katie Wilson-Milne: Right. Steve Schindler: And the work is publicly not sold. Katie Wilson-Milne: Right, so unlike a private sale where something isn’t sold, well, you just wait and you sell it later. But at auction if it doesn’t go well, that can really taint the marketability of the work. Steve Schindler: And now the rules require that the auction houses announce that a work has not been sold. Then, the word that's used for it sometimes is that the work is burned. And then can't really be sold, at least not at auction, for some period of time. Katie Wilson-Milne: I would totally take advantage of a burned work if I could -- Steve Schindler: Well, of course and the auction houses then do try to sell the work privately afterwards and sometimes they know, because they know who the bidders are. You know, what the interest is and then they are broker a sale immediately after the auction. Katie Wilson-Milne: Just maybe not for as high a price as they could have before. So, Steve we've talked a little bit on this podcast and certainly between ourselves about the level of or lack of regulation in the art market and sort of the increasing concerns over transparency, either in terms of money laundering or just transparency about the provenance of a work. Auctions do function a little bit differently than private sales, right? I mean there’s more transparency if not complete transparency. Steve Schindler: Well, auction houses are much more regulated than private sales and -- Katie Wilson-Milne: Which are not regulated at all. Steve Schindler: Which are not regulated at all, and there is certainly a lot more transparency in an auction process. I’m not sure that we can say that there’s 100% transparency. But there are a lot of rules that the auction houses have to comply with, and they do comply with, that at least ensure a certain fairness and openness in the process. Katie Wilson-Milne: But one of those things is not who the seller is often, right? That's the one thing that's still not transparent -- Steve Schindler: That's right and there was a case that ran all the way up to the court of appeals a few years ago. Katie Wilson-Milne: In New York. Steve Schindler: In New York, where we had a buyer at an auction who decided that he didn’t want to pay for the work after the fact and challenged the auction house rules on the theory that there needed to be a written disclosure of the identity of the buyer. And actually that case went up to the highest court in New York and in the court below, much to the unhappiness of the entire auction industry, the court below actually found for the purchaser and invalidated the sale because there was no written record of who the seller was. And the court of appeals decided to overturn that much to the relief of the auction industry. Katie Wilson-Milne: Yeah, there have been efforts over time to require dealers to disclose the identity of the seller to the buyer, but those have not been successful, though. The art world seems somewhat allergic to idea of disclosing who the owner of a work is. Steve Schindler: There are really two big secrets now at an auction: one is, sometimes, who the owners are. I mean, not at every auction. Sometimes it's in fact a huge selling point. Katie Wilson-Milne: Like the big Rockefeller sale coming up. Steve Schindler: Right exactly, so the provenance of those works is incredibly important to the value, but sometimes collectors don’t want the world to know what they’re selling. And so they insist that their identities be kept private and often those works are offered as the works of a private collector or European collector, an American collector. And the other big secret at auction is this reserve price. Katie Wilson-Milne: So, what is the reserve price? Steve Schindler: Well, the reserve price is the secret price that's agreed to between the seller, or the consigner of the work, and the auction house. And it’s the price below which the work cannot be sold. And what's not a secret and what has to be disclosed is the fact that there is a reserve, and that is clearly disclosed in all auction catalogues. And typically in the major auction houses they disclose that all of the sales are with reserve unless they say otherwise. And the other thing that means is that, the way that the auction is conducted, is that the auctioneer is allowed to submit bids on behalf of the seller up to the secret reserve price. Katie Wilson-Milne: Why would they do that? Steve Schindler: Well, it’s really – some people have criticized the practice, the practice is sometimes called chandelier bidding on this idea that the auctioneer is sort of taking bids off the -- Katie Wilson-Milne: The ceiling, yeah. Steve Schindler: -- the chandelier in the ceiling, but really it’s just a question of creating some theater and drama, because up until the reserve price is hit, the work can never be sold. So, even if the auctioneer is engaging in some bidding up to the reserve price, until you hit the reserve price, it really has no real impact, accept to sort of -- Katie Wilson-Milne: Confuse everyone about what the reserve is. Steve Schindler: -- or to warm up the room if you're taking it from the auctioneer’s perspective. Katie Wilson-Milne: So, how does the concept of a reserve interact with this other concept of a guaranty? And what is a guaranty? Steve Schindler: Well, a guaranty, which is often used now by major auction houses to entice collectors of works to consign the works to them, is basically a contract of promise by the auction house to pay a set amount of money to the consigner of the works regardless of what happens at the auction, and regardless of whether the reserve price is hit. Katie Wilson-Milne: The seller knows 100% they are going to get at least that amount of money. Steve Schindler: Right, sometimes that's important to a seller the thing that the seller normally gives up when they agree to take a guaranty, is some of the upside of the auction if the price goes above the guaranty and the reserve price. Katie Wilson-Milne: So, the auction house would split the profits above the guaranty. Steve Schindler: Yeah and in some proportion and very often now the auction houses, if they are giving a guaranty will in a sense syndicate that risk to other parties who put up the money and are willing to make the guaranty. Katie Wilson-Milne: So, it’s a third party that – if the bidding didn’t go higher than the guaranty price they take the work. Steve Schindler: They would take the work at whatever price they guaranteed it at – most of the individuals or institutions that give guaranties would prefer not to have the work. What they are doing is making a financial bet that the work will sell at a price that is higher than the guaranty in which case they receive a return on their investment. Katie Wilson-Milne: So, Steve let’s talk to an auctioneer who actually works at these big night auctions and see what they have to say about how they work. Our guest today is Oliver Barker. Oliver is a senior director at Sotheby’s auction house and co-chairman of Sotheby’s Europe. He is also one of the auction world foremost auctioneers. So, he is both behind the scenes and in front of the camera at Sotheby’s, which he joined in 1994 moving through roles in contemporary art as a senior international specialist, among others. He has overseen some market-defining auction sales, including two major sales of Damien Hirst works, including one that set the world record for single artist sale. He has a particular interest in post war British art, which he has promoted at Sotheby’s. And he was the auctioneer at the May 2017 auction in which a Basquiat work sold for record-breaking $110.5 million. Steve Schindler: Welcome to the podcast Oliver. So, what kind of skills do you think a good auctioneer has? Oliver Barker: Yes, well you know, in any given sort of auction, obviously the auctioneer’s role is to try and help proceed the kind of trading from the consigner to the purchaser. So, the ability to remember, without slavishly looking down at kind of the auctioneer’s book, which is obviously there as a working tool during an auction, exactly what the estimate is for a particular work and also its protective reserve price, and therefore also it’s kind of opening bid, there’s a number of kind of key financial things in play.
And, equally, there are so many means of bidding in this sort of modern day. So, I suppose most traditionally, the easiest way to bid is actually in the room, whether it’s a private client or whether you choose to bid through an agent who’s sitting there executing bids on your behalf. And there are also kind of the execution of bids via the telephone through a Sotheby’s representative. There may also be commission bids, and the commission bids are always ones which are lodged in the auctioneer’s book.
So, whilst starting off on a particular – you hear auctioneers say footing, the auctioneer’s footing — one has to be aware where the reserve price is, where a commission bid might be and more importantly where the commission bid ceiling is. Whilst also kind of orchestrating multiple bids that might come in depending on what the level of interest is in a particular lot.
Katie Wilson-Milne: So, we definitely want to ask you about the stages of an auction, so we’re going to get back to a lot of the items you just mentioned. But maybe first we should ask you to explain to our audience how you decide what goes into an auction versus a private sale. I mean, big houses like Sotheby’s and Christie’s do both, maybe there’s a movement towards more private sales now. So, what is the determination of what goes up for auction and what doesn’t?
Oliver Barker: Well, I think it’s a really interesting question. I think at the moment because the market is ostensibly very strong, and particularly in the area of contemporary art with which I’m most focused. I think we have the luxury in contemporary, to a great extent actually, to curate the auctions that we’re handling.
In other words, there are far greater more voluminous supplies of great objects of the Post-War period, which is how we loosely define Contemporary, then there might be say of old master, kind of masterpieces. We use our global network and the conversations that we’re having with museum curators or dealers or gallerists or collectors to really have a insider’s knowledge, if you like, of who are the artists sort of being — sort of collected and who are in high esteem in a particular moment.
But then also amongst those artists works, what are the key periods or what are the most rare objects? And what are the ones that the market has seen a real hiatus of? And quite quickly, you sort of figure out that, okay you have the real estate of a certain amount of exhibition space prior to an auction. You have the real estate of a Sotheby’s catalogue, which is a major marketing tool that we use, but equally is one that takes a huge amount laborious work in preparing.
One has the audience’s attention span, which generally doesn’t last beyond a certain amount of time and then also you have key experience. So, we tend to have in an evening sale a context probably not more than about 75 lots. That will probably be your maximum. I mean, there’s no hard and fast rule. But I think much beyond 75 lots you know, it’s hard to keep an audience’s attention and focus. But at the same time you want to be able to curate a sale so that — there are lesser value things that which you know, are going to be short fast sellers.
And you want also want pepper the ordering of the catalogue, which is also particularly critical, to introduce the high value lots at the commercially most optimum moments. And I think at the end of the day also we’re getting very closely judged both by Wall Street and by the collector community in terms of how many unsold lots we’re handling. I mean, I think it is fair to say that it’s a rarity to have sales which are 100% sold. When putting a sale together one intends to try and sell everything as best one can, but market forces obviously and a variety different reasons may mean that things go unsold. But there may well be through price expectation or physical condition issues, problems of some sort of conservation for example, that on the day the market turns its back. So, we would like to have a fairly tightly trimmed unsold rate obviously of a percentage as low as possible.
Steve Schindler: Maybe talk us through sort of setting the stage of what it’s like, the atmosphere is like, at one of the big evening Contemporary art auctions that you preside over.
Oliver Barker: No, I mean the big auctions really are you know an amazing spectacle. I think it’s fair to say that the evening sells are very much the summation of a very intensive three month period since the last set of auctions. And in many cases, the fruition of many years of engagement with a particular collector, meaning that we have put together an auction of what we believe to be the finest works of art in that particular sale season.
So, there’s a tremendous sense of anticipation from a number different perspectives whether it’s the vendors. Whether it’s the market itself responding to the quality of the objects that we are offering, whether it’s the people within the room itself, in other words the people who attend, whether they be private collectors or consigners or potential purchasers. From Sotheby’s perspective obviously, there are the management and the financial expectation of the sales and there maybe even be our shareholders or our board members or even Wall Street that are looking in as well.
So, I think it’s fair to say that there’s quite a lot of eyes coming from many different disciplines, all of whom are very clearly focused on that start time of 7pm. when we kick off. And being in a live business as we are, it’s very exciting that all of our presale marketing is conditioedl, obviously to that deadline and approaching that kick off point.
So, that we have done our absolute utmost on behalf of the vendor to reach out to the world’s collectors and — you know, I think it’s interesting, in previewing the next major sale season, New York in May, where there are so many superlative objects that are coming to the market at the same time. You will find that the orchestration of marketing these sales, and therefore how well the auction does, is really crucial in making sure that the world’s global collecting community is very, very focused on participating and being focused from New York at 7pm when we kick off that sale.
Katie Wilson-Milne: So, what do you do in the lead up to an auction? What are the key things you do to drive up interest in the sales ahead of time?
Oliver Barker: Well, there are kind of three elements, I suppose, in terms of how we best raise interest and therefore the kind of the excitement around a particular object and particularly trying to get somebody to actually come participate in that and bid in an auction. First of all, there’s the announcement of the sale itself, and actually normally that is the sale catalogue. So, that’s the very first time that the market’s actually been able to have a very holistic view on all the objects that we’re going to be selling in that particular moment.
Sometimes preceding that, sometimes following that, are a series of well-orchestrated marketing campaigns, which might include taking a particularly important object to Hong Kong, for example. I actually think a very good example is the announcement today, in fact, is the wonderful Modigliani Nude of 1917, which was actually launched online in a live web cast on Sothebys.com but from Hong Kong. With a very deliberate view that you know, the unlikely buyer for an object like that may very well come from that region of the world.
But at the same time you know, that is an object which will now return to the New York to be viewed in the next couple of weeks in a presale exhibition you know, within our building on York Avenue, and that’s the other key part of the exhibition, of suddenly going into an auction. You know, we have a – usually 10-day, or sometimes longer or sometimes a little bit shorter, preview before a particular sale, which enables collectors to come in and look at the pictures, but I think also most importantly to really do due diligence and talk to experts at Sotheby’s or take their own independent advice and come in with somebody who has some particular knowledge in an artist’s work. Even seek the opinion of a third party conservator, you know somebody who’s able to come look at an object, take it off the wall. I mean in the same way that you wouldn’t acquire a house without having a full structural serving on it, collectors do very much the same thing with paintings. I mean, they like to come onboard and actually have a look at conservator’s reports and get a sense of is it in the original condition from which it left the artist studio? Have there been some kind of repaintings? Are there any loses anywhere? And then obviously, you lead to the auction itself, and that might be proceeded by dinner parties or press releases as well.
But as I mentioned a moment ago obviously the sale tends to kick off at a very particular time. Nowadays also because our auctions are broadcast online, it’s even more important that we kick off in sort of a timely manner. And we’ve had going on behind the scenes throughout the whole auction process a number of internal meetings at Sotheby’s, which are called interest meetings, which are designed to help orchestrate and choreograph, what are the levels of interest that the works of art that we’re selling are driving in the market place. In other words has that first lot in the sale had the kind of feedback that we thought it might, because it’s such a rare object, and that it seems to carry comparatively conservative estimates? So in other words, has it driven three or four people to look as if they’re making the signs they might decide to make a bid on the auction?
Steve Schindler: So, Ollie, when you start the bidding you already have a sense, I gather, of who is interested and what level of interest they have.
Oliver Barker: Right, I think it’s fair to say that you know, auctioneering is a very irrational process, it’s not a fixed price. I think to a perspective purchaser of art who’s never bought at auction before, there is some level of discomfort. I mean by comparison to walking into a gallery, where quite often there is a published price or you know it’s known what the end user price might be, and of course barring any room for negotiation, you’ve got a fairly clear idea what you are going to be likely paying for a certain transaction. When you walk into an auction, obviously, there is absolutely no guaranty that the object is going to be acquirable at a particular level of price, because of course it just – it entirely depends on who ends up bidding against you. Having said that, what we are trying to do is to make the irrational as a rational as we possibly can. In other words we are using our experience to try and understand what the likely outcome out of a particular auction might be.
Now, obviously we would love to supersede our expectation and know that on the night you know, something might double or sometimes triple or if we’ve done our jobs correctly and we know we’ve got a wonderful object and equally it’s being well marketed and it’s highly desirable in the marketplace and you have been able to drive great interest in that particular object, you might probably might find that something will take off and make a really superlative price that has no precedence in the market to date.
Katie Wilson-Milne: How often does that happen that there’s sort of a runaway bid, bidding on a work that just takes everyone by surprise?
Oliver Barker: Well, I mean, Katiem you know, I wish I could say on every single lot. I mean, I think that buyers now are particularly savvy. And I think you know, we would expect them to also be fully aware of and advised of what comparable objects make in the market place. So, depending on what you’re selling you know, there may be one sale. And we had a great example of something which did superlatively well last May when we sold a Basquiat painting for $110 million —
Katie Wilson-Milne: Right.
Oliver Barker: — it had an estimate somewhere in the region of just over $50 million, so that was a really great example of something which completely superseded what our presale expectations were.
Steve Schindler: And you were presiding over that auction, Ollie, as I remember.
Oliver Barker: Yeah, I had the great privilege of holding that auction.
Steve Schindler: How did that feel at the time?
Oliver Barker: It was terrifying. I think that because I very much love the entertainment aspect of the auction, it was something, which seems to go very slowly. Albeit I think time actually sometimes slows down actually when you’re dealing with such high figures. And particularly when kind the freestyle excitement of two very determined bidders like that kind of really gets going.
But it was a great privilege, it was tremendous work of art. And I think also the signs in the presale activity have been that the market – this is the picture that market was really looking for. I think you have the trilogy of a great object by a great artist, which is entirely fresh to market. Really truly all those kind of the elements choreographed together to make a phenomenal price. And I think in fairness to Sotheby’s also — I think we did a tremendous job in terms of marketing in that work and just making sure that on the night the two most likely bidders or end users ended up sort of fighting against each other and there was a real sort of gladiatorial kind of contest which went on between them.
Katie Wilson-Milne: It’s really interesting how much of the excitement I think of the auction actually happens before the auction, which you’ve talked about in terms of the press and the social media and the events. And I wonder has that changed over time, in your experience?
Oliver Barker: You know, it’s really interesting to me that you know, well Sotheby’s is actually the – I think we’re the oldest company that’s listed on the American stock exchange. We’re a company that was founded in 1744 in London by somebody who was a bookseller. And I think the reason that we remain, or rather, auctioneering remains a really contemporary activity is that I still think it’s one of the most effective ways of selling works of art from one entity to another. And I think you know, that we’re fortunate you know, being Sotheby’s — and Christie’s and Phillips could say very much the same thing — that we are deemed to be kind of very credible marketplaces for the sale of the greatest works of art and the thing that we particularly handle. Having said that, I think that you know, particularly with the new opportunities afforded by the internet and social media etc., I think the abilities to market what we’re selling have grown massively within the last two years.
And continue to kind of change all the time. And I think that we as a business are very much at the forefront in terms of kind of trying to get technical innovation, very much front and center in terms of how we get objects sort of into the minds of the prospective purchasers out there. I think it’s fair to say at that actually auctioneering in a way remains a very, you know — it’s quite an old school form of actually selling something. You know you have a finite amount of time to sell something, it has to be in a particular city, it has to start at a particular time, and you’re somewhat reliant on your audience actually being available and focused at that particular moment. Having said that, you know and again to use another analogy, I think that’s race horses tend to run a little bit faster when they can hand the hooves of other horses beside them and I think very much —
Katie Wilson-Milne: Right.
Oliver Barker: The same with bidders. You know I think that there is something very compelling to a major collector to feel that there is a competition for a work, which very much validates that quality of that particular work. I mean I think in a way to sort of buy something against a reserve price or with no other bidder or under bidder can to a lot of people be quite a difficult situation. It suggests that your taste has not been validated on the day of acquisition.
Steve Schindler: And some of the language that you use in an auction also is — seems adversarial, you know, when you say to a bidder “against you” or you know it’s —
Katie Wilson-Milne: You’re setting up a competition almost.
Oliver Barker: I think there are people who are very determined when it comes to auction to actually try and acquire something. So I think the auctioneer’s role is very much to help translate that kind of rigorousness on a bidder’s behalf to really acquire that trophy and acquire that sort of particular masterpiece. I mean, I think I prefer to use the word cajole in a way, rather than kind of adversarial. I am not —
Steve Schindler: Fair enough, fair enough.
Oliver Barker: I am not sure how many bidders are overly adversarial —
Steve Schindler: Fair enough.
Oliver Barker: If I am cajoling them well enough. And if that means kind of questioning their virility of bidding, then that’s definitely something that we like to kind of use as a means. And I think the audience is very receptive to it as well.
Katie Wilson-Milne: Well, it makes it very exciting, and Steve and I in preparing for this podcast did some reading about work that’s been done on the psychology of the auction, and it’s — it’s really interesting.
Oliver Barker: Yes, yes.
Katie Wilson-Milne: I mean, people just react completely differently in an auction setting than they would in a private sale. And you know I was thinking of you sort of as this psychological master leading the auction. Now do you think about —
Oliver Barker: Yeah.
Katie Wilson-Milne: You know. Do you do any research on that, or how do you think about the psychological?
Oliver Barker: No, very much so, and I think that it’s very hard to kind of really define it particularly when you’re in a live environment like that. You know, there are examples and you know one sticks to my mind probably more than any was when we did the big Damien Hirst “Beautiful Inside My Mind Forever” Sale in 2008. I mean in terms of a presale environment, you could not have got a more heady mixture than the imminent collapse of Lehman Brothers happening during the presale exhibition of that sale and then the eventual collapse of the bank and kind of the financial tsunami in the stock exchanges that was the direct result of it, which happened on the 15th of September 2008. And that was the kind of the back drop to which we then held the sale that evening in London at 7pm.
So you know from the announcement first thing in the morning that the bank, or rather the central bankers in America had chose not to support Lehman Brothers and it fell into administration, you suddenly saw opening in the Turkey stock exchange this sort of financial malaise that spread west around the day. So by 7pm that evening in London, of course there was, you know, this front page news in the Evening Standard. We were incredibly worried about what would happen and how the transition would affect the auction. But I think it’s fair to say that you know in any auction environment there is a kind of a vacuum-like opportunity or intensity if you like where the outside world is somehow put on hold and people are particularly focused on the auction itself and I think actually, because the auction of Damien Hirst works was a completely unmitigated success. I think there was an element of, you know, yes, psychosomatically people were very involved and very engaged with those objects, but as an auctioneer, you know, I was hopefully able to get their real attention that night and there are no rules — I mean, I think also — no rules in terms of what a bidder’s limit might be. I mean, depending on what their financial means are. I mean, a lot of our bidders are very astute and they come in with a very fixed idea of what they want to spend on a particular object. There may be those who on the night have a particular limit, but then blow straight through depending on their mood.
Katie Wilson-Milne: I was going to ask you just that, right, do they stick to it?
Oliver Barker: Yeah. Well, it’s you know I — I can only speak for my own experience you know when I bid in auctions outside of Sotheby’s, quite honestly you know you set yourself a limit, and I did this actually buying my wife’s engagement ring, you know I set myself a limit and then I just blew straight through it, because it was just an object I had to have. And I think that’s also dependent on you know the high into the market, you know when you’re dealing with kind of unique Rothko’s or Modigliani’s or Francis Bacon paintings or Picasso’s, and you saw it clearly with the Leonardo painting that came up at Christie’s. You know I think in that case, when there is an element of scarcity and rarity and kind of you know a one-offness in the marketplace, there’s much more likely and to be a kind of stellar auction price, which will be very hard to replicate.
Steve Schindler: So, Ollie, you’ve been very generous with your time. And we’re sad to let you go, but I would like to ask just one more question before we conclude. You are an auctioneer in London, you are an auctioneer in New York. Is there difference between auctions held in Europe and the United States, or even Hong Kong, just in terms of the atmosphere and the —
Katie Wilson-Milne: The buyers?
Steve Schindler: The buyers?
Oliver Barker: I think the short answer is yes. But I think as an auctioneer I am very conscious about trying to engage a different audience in a different geographical location. I mean I think that in New York, in particular, with the auction room at Sotheby’s, it’s a vast space, it seats many more people than our London auction room. And I think that they are obviously the stakes in terms of the values of the works tend to be a lot of higher. There is arguably more participation actually from the telephones than there are in any other auction location. And I suppose for me, being based in London, it’s a slight cultural nuance just on the, in the basis of being in a different city.
But you know it’s now become very familiar to me. I mean, I certainly as an auctioneer I remember the first time I got up in New York to take an auction it really felt as if I was sort of entering in a tremendous environment, a huge kind of stage and obviously with works to kind of back that up. I think in London just by definition our building here is a little bit more quaint, albeit the auction itself is still to an audience of possibly up to six, seven hundred people. But I think, you know, one has to be attuned to the kind of the audience that is looking as well as the people who are likely to be tuning in. I mean, it’s very difficult as an auctioneer to know exactly who is on the end of a telephone line or who is watching from the comfort of their own home in terms of online bidding for example, but — because there are more numerous ways of actually pricing bids these days, we have to be accountable for each for each possible one.
Katie Wilson-Milne: Great. Well, thank you so much for speaking to us today. I know our listeners will enjoy hearing your perspective.
Steve Schindler: Thank you, Ollie.
Oliver Barker: My pleasure. Thanks, Steve. Thanks, Katie.
Katie Wilson-Milne: Well — so let’s talk about the rules, rules are obviously exciting to us because we’re lawyers.
Steve Schindler: We are lawyers and we love rules.
Katie Wilson-Milne: And auctions, I mean auctions do feel a little bit like the wild west, right, they are theatrical, you have people acting on impulse, it’s really exciting, bids go up 10s of millions of dollars at a time, but there is actually rules to it and regulations, so Steve what are some of those rules?
Steve Schindler: Well, there are really two sets of rules that govern auctions in New York. One is the uniform commercial code, which is a code of laws that are adopted across all 50 states that governs the sale of goods. And art is really a fancy kind of good. So, UCC Section 2328 provides a contractual framework for auctions. And it basically says that a contract is formed and a sale is complete when the auctioneer’s hammer falls. And there are some specifications in the UCC about what happens, for example, if the hammer is falling.
Katie Wilson-Milne: Right.
Steve Schindler: And another bid comes in, and the UCC says under those circumstances the auctioneer has discretion to in a sense open up the bidding again. The other thing that the UCC provides are some rules relating to whether or not there is a reserve or not. If an auction goes forward without a reserve price, then once the bidding starts, the lot can never be withdrawn. So if the bidding is $5 or $10, it doesn’t matter what the object is worth, at that point the seller is kind of stuck with it and when the hammer falls that’s it. If there is a reserve then, of course, the object can always be withdrawn from sale unless the reserve is hit.
The UCC provides for two kinds of warrantees that are important in the purchase of art. One is a warranty of title and the other is a warranty of authenticity. A warranty of title, whether you’re buying from an auction house or from a dealer, is implicit in any sale. The second warranty is a warranty of authenticity. A warranty of authenticity, unlike the warranty of title, has to be expressed. You need to say what you’re warranting in some fashion, and the way that works under the UCC with respect to an auction catalogue is if the work is listed in the catalogue as the work of a particular artist, that constitutes a warranty —
Katie Wilson-Milne: That it is.
Steve Schindler: That it is the work of that artist as supposed to other ways of formulating the catalogue description, such as something is “the school of” or “in the style of,” but whenever it is that you sell something and you list it in the catalogue as being the work of an artist, you are and the auction house is warranting that the work is authentic. Warrantees of authenticity and title carry with them a four year statute of limitations, but one of the things that the auction house does with respect to its warranty of authenticity is to provide for a five year guarantee of the authenticity of the work, so they actually give you one more year than you normally get.
Katie Wilson-Milne: Right. So if there is a problem with the work you buy at auction, you can go back to Sotheby’s or Christie’s within five years pretty much no questions asked as long as you have some backup for your concern. They’ll give you your money back, take the work, and then it’s up to them to go to the consigner or the seller to sort things out with them.
Steve Schindler: Right. And one of the things we know from working with auction houses is that they do a very thorough job on the consignment side. So —
Katie Wilson-Milne: Well they have a lot at stake.
Steve Schindler: They have a lot at stake, and so you know that they are working very diligently to make sure that the works that they are selling have title and that they are what they are purporting to be.
Katie Wilson-Milne: And even if something comes up after the contracts have been signed, after the catalogue has been out, if something comes up that one of the auction houses doesn’t feel good about prior to auction, they can withdraw their work at their complete discretion. And we have seen that a number of times that they’re really cautious, and they’ll pull something at the last minute.
Steve Schindler: Right. And it’s a very difficult decision to make, because obviously it’s not great for the consigner. In New York, the New York City Department of Consumer Affairs also has a set of rules for licensing auctioneers and regulating public auctions. And interestingly these rules were substantially revised in the 1980s, particularly in the aftermath of a scandal that hit Christie’s as an auction house, where a number of works were not in fact sold because reserves were not met, but in order to boost the market, Christie’s and its then chairman falsely reported that the works were in fact sold.
And after that happened, the chairman of Christie’s at the time was forced to resign and the Department of Consumer Affairs decided that they needed to get a little bit tougher with the regulation of auctions just to make sure that the public would feel secure in bidding at an auction. After their obligations to the vendors and the consigners, which, Katie, I know you’ll talk about a little bit, the main obligation the auction house has to the buying public is to really ensure that the bidding is fair and that the sale conditions are transparent and that everybody knows the rules.
So a few of the things that were changed at the time that these rules were overhauled was that the existence of the secret reserve price now must be disclosed, not the amount of it, but the fact that there is a secret reserve price must be disclosed. Also when we talked about guarantees before, if there is a guarantee that is given on a lot, that also must be disclosed. We know that auctioneers under the rules are never allowed to bid for their own account unless that bidding is disclosed and except up to the reserve price. We talked about chandelier bidding, for example. If there is to be chandelier bidding, it has to be disclosed, and all of these disclosures are normally made in the big auction catalogues with —
Katie Wilson-Milne: With little symbols.
Steve Schindler: With little symbols, when you look at the terms of sales, it goes through all these types of items and then indicates whether there are guarantees, whether there are financial incentives of any kind being offered to the sellers. And the idea is that this kind of information will help inform the market in their bidding. And sometimes, in fact, when these conditions change even at the last minute, the auction houses will post notices outside the auction room with any disclosures that have to be made.
Katie Wilson-Milne: So the New York City Consumer Affairs rules also require that there be a written contract for every auction between the auction house, or the auctioneer, and the seller, commissions that are charged have to be disclosed. There has to be a disclosure of any interest that the auction house or any related party has in the work, whether they own a part of the work or, you know, have an interest in a guarantee on the work. The auctioneer cannot disclaim warranty of title even though under certain circumstances the UCC would permit that, which is what Steve was just talking about, and the consigner has to make a warranty of title. So there is two ways that the buyer is protected in terms of the title.
So there is also this concept in auctions of an enhanced hammer price. And that means, in the old model, auction houses made most of their money from consigners paying them a fee. So if I owned a work of art and I went to an auction house and sold it, I would give them a percentage of what I got from the sale. For a variety of reasons I think mostly, Steve, because of competition among the auction houses to get sellers to consign amazing works, the auction houses for certain clients charge very little if anything of a seller’s commission. And now they seem to be getting most of their money from what’s called the buyer’s commission.
Steve Schindler: And the buyer’s premium is something that’s set out in the — very clearly in the terms of sale and the buyer’s premium, unlike the seller’s commission, is really never negotiable.
Katie Wilson-Milne: The amount of the buyer’s premium changes depending on the price of the work.
Steve Schindler: Right.
Katie Wilson-Milne: Right so —
Steve Schindler: As the price of the work goes up, the percentage of the premium goes down.
Katie Wilson-Milne: Goes down a little bit. And so, but it’s even beyond that now right, Steve? So now the competition is so fierce for sellers or consigners that sometimes the auction house will promise the seller a share of the buyer’s premium which is the original fee that’s supposed to go to the auction house.
Steve Schindler: Right. And that’s known as an enhanced hammer.
Katie Wilson-Milne: Or under the New York Consumer Affairs Laws a rebate. So auction houses are agents. They work for the seller technically, so they are a fiduciary of the seller, not of the buyer. Although the regulations and rules that we just talked about, the UCC and the New York Consumer Affairs Rules, really mostly serve to protect the buyer. So it’s sort of an interesting relationship in that is a fiduciary relationship. The auction house is a fiduciary of the seller, which means that they have to act in the utmost good faith and in the interest of the consigner throughout their relationship, meaning they have to take care of the consigned work, they have a duty to disclose details that influence what the work can sell for, how auction-able it is, if there are any issues that come up in due diligence about the work, then the proceeds from the auction sales are really held in trust for the seller they belong to the seller and the auction house holds them as a fiduciary meaning it can’t use those proceeds for other business purposes.
So those basic fiduciary laws exist in the auction-consigner relationship, but they’re overlaid with practices and rules that come up in the UCC and the Consumer Affairs Rules that really make the relationship one towards the buyer as well. And I think this is unique to the auction world that the auction is facing the seller as a fiduciary, as an agent, and the buyer with all these rules of disclosure that come out.
Steve Schindler: Yeah. So it’s a little bit different than a sort of gallery situation. I mean, there you have the same technical legal relationships. You have a consigner of works to a gallery is in a fiduciary relationship with the gallery owner, and the customers or the clients at the gallery are not, but you don’t have that same level of regulation governing —
Katie Wilson-Milne: Right.
Steve Schindler: The sort of practices vis-a-vis the client.
Katie Wilson-Milne: It seems to be more clear in the private sale world who is responsible to whom, that the gallery is a fiduciary of either the artist whose work they’re selling. Or if they take a work from a collector to sell, they are the agent of that collector and it’s a little more clear. In the auction world, there are all these regulations. Some of the practices that seem to conflict with traditional fiduciary-like obligations are guarantees where the auction house has an incentive to make money on its own account if it can sell work for above the guarantee, right?
Steve Schindler: Right.
Katie Wilson-Milne: And then it’s dealing with this potential third party who also has an interest in the outcome of the sale and it’s not the seller.
Steve Schindler: Right. And I think the other really important fiduciary obligation that the auction house has to the consigner of works is this question of auctionability, of looking at a work and deciding —
Katie Wilson-Milne: Yeah.
Steve Schindler: is this something that should really be in an auction or in an auction this May or November or is it something that really should be sold privately, because if you put something up for auction that isn’t right, then the consequences to the seller are pretty severe. It’s a sort of public shaming of the work and that is you know very difficult for an entity who lives —
Katie Wilson-Milne: Makes all it’s money —
Steve Schindler: On selling people’s works at auction. So, it’s a really important fiduciary duty. It’s one that I think that the auction houses try to live up to, but it does create a natural tension.
Katie Wilson-Milne: Yeah. And I think we would call these things potential conflicts of interests, the guarantee, the fact that auction houses want things to go to auction even while they’re fiduciaries of the seller and it may not make sense for something to go to auction at a certain time. And then there is the buyer’s premium, where the auction house is getting paid by the buyer and is incentivized to sell work at a certain price or a certain time so that they can get the buyer’s commission. And then what about art loans does that — how does — how do art loans fit into the fiduciary obligations of the house? How do art loans work in the auction?
Steve Schindler: So, art loans now are fairly common. They can either be made by the auction houses themselves. For example Sotheby’s has a significant loan and finance department, and what it typically does is offer advances to consigners who were selling works at an auction. So if I put my work up for auction in May, but it’s January and I’d like to have some cash in advance, typically they will loan you 50% of the low estimate. What’s problematic here is that if the work doesn’t sell at auction then you still have to pay back the loan. And — so I would say that the interfacing of the auction house and their making of the loan, that that’s not a fiduciary relationship that that is an arms length relationship no different than if you went out to a bank or to a special purpose financing company and sought a similar kind of loan.
Katie Wilson-Milne: The buyer is paying interest to the auction house too, so it’s a profitable enterprise —
Steve Schindler: Yeah and —
Katie Wilson-Milne: theoretically.
Steve Schindler: And it started out really as an accommodation business. I think it’s grown a little bit past that, but the idea would be if you were Sotheby’s or Christie’s and you are competing for prized consignments, one of the incentives that you would offer your consigners would be an advance.
Katie Wilson-Milne: And now they can make a loan, that’s in a more traditional lending format and gets some interest in the process.
Steve Schindler: Right.
Katie Wilson-Milne: It sounds like we should do a whole episode on art lending and —
Steve Schindler: Maybe we should —
Katie Wilson-Milne: art finance.
Steve Schindler: I think we will.
Katie Wilson-Milne: So another way or a way that the auction houses and the auction system gets around this potential conflict between fiduciary obligations to the seller and rules of disclosure to the buyer is in their contracts. And as is always true, having a contract that lays out the terms of a relationship is a great idea and it prevents other legal claims such as breach of fiduciary duty. So it’s pretty clear in the law that you can modify fiduciary obligations by contract. And that is just what the auction houses do, so they have consigner agreements with the seller and they have terms of sale. And both of those are contractual obligations, either between the seller and the auction house, in the case of the consignment agreement and in terms of sale between all three parties the auction house, the seller, and the buyer.
So what are the main contract terms that are laid out in a consignment agreement in terms of sale? One is the commissions to make clear who is benefitting from what that the seller knows there may be a buyer’s commission, if they have a share in that or not. That’s all laid out. So any potential conflict of interest is disclosed and accepted by both parties. The seller, the consigner makes representations and warranties with respect to clear title, the ability to sell the work or authority to sell the work if it’s an entity selling, authenticity of the work etc., and the contract will lay out the consequences to the seller if those warrantees and reps are not true.
And that’s because as we’ve just said the auction house has a duty to the buyer which is both governed by the UCC and under the auction house’s contractual obligation to take work back within five years, if there is an issue with authenticity. The contract with the seller means they can go back to the seller and sue them if need to be to recover the value they lost from accommodating the buyer.
Steve Schindler: And what happens now if the buyer doesn’t pay? There have been a couple of lawsuits that have been in the headlines lately about buyers who have made bids and then just decided not to pay.
Katie Wilson-Milne: It’s kind of incredible to me that that happens that you could be a high profile enough bidder to be at a big night auction at Sotheby’s or Christie’s, that they would vet you financially ,which we know they do, and they have to. That’s smart. And it would still happen that the buyer’s like, “no actually I changed my mind, I’m not going to pay.” So —
Steve Schindler: So then what happens if you are a seller?
Katie Wilson-Milne: So if you’re a seller, the contract says that the auction house is under no real obligation to go and collect money for the sale.
Steve Schindler: Right.
Katie Wilson-Milne: Like they’re going to do their best to sell it. It’s clear you know what reps and warrantees are being made, but if the auction house doesn’t get the money, they can’t give it to you. So the seller really does bare the risk of that. Now, both the seller and the auction house may have civil causes of action where they can go after the so-called buyer who didn’t pay for breach of contract, and that is in fact what happens. If it’s enough money that it’s worth it, the auction house will sue.
Steve Schindler: Right. And even they don’t have a legal obligation to do it, they probably in order to just to preserve the integrity of their auction and to entice other people to sell with them, they need to sometimes enforce the promises of buyers.
Katie Wilson-Milne: They could also have a 20% interest in —
Steve Schindler: That’s right too.
Katie Wilson-Milne: The sale price, so it might be — it might be financially worth it for the auction house, too.
Steve Schindler: Right. And what about do auction houses now concern themselves with money laundering and source of funds?
Katie Wilson-Milne: They do greatly. And we deal with this a lot. There is increasing oversight I think from banks with large amounts of money moving in and out of accounts. So there’s some financial regulation, which is not regulation of the art world though, which overlaps with the art world, just because it’s about movement of funds. There is also, we know, for Chinese buyers pretty strict regulations in China with respect to how much money can leave China every year, and it’s a really low number. So there are reasons that the auction house is going to want to check into the type of client they’re dealing or the type of potential buyer to make sure that they’re not going to get caught up in some kind of regulatory investigation or lawsuit or third party subpoena where they’re going to have to turn over their records and be scrutinized.
Steve Schindler: So I think it’s fair to say, and it’s not obvious, that you can’t just stroll into a high-profile auction in the evening for major pieces of Contemporary Art and pick up a paddle and then just sort of raise it away.
Katie Wilson-Milne: Indeed no.
Steve Schindler: That there is a lot of due diligence both on the seller’s side and the buyer’s side that the auction house is performing. That’s one of the things that —
Katie Wilson-Milne: Before you get the paddle.
Steve Schindler: Exactly.
Katie Wilson-Milne: Yeah. And that’s probably something that’s changed dramatically and increasingly as the art market has taken off and become you know a $60 billion industry, that it becomes harder and harder to take part in one of these auctions because there is too much at stake if you don’t pay, or it’s going to get the auction house in trouble. So the contracts that the auction houses has with the seller also protects the auction house by providing a broad indemnification from the seller. So just like we were talking about a minute ago, if something goes wrong with the sale, there is a title issue despite the fact that the seller warranted there wasn’t or there is an authenticity issue, the seller says, “I am going to cover those costs for you, the auction house, including your legal fees. I’ll refund you the work.” Now, enforcing it is a different matter, but the seller does indemnify the auction house. It doesn’t directly protect the buyer. The buyer will still go to the auction house and the auction house will protect the buyer, but they can then turn around and go to the seller. It also provides that the seller is going to pay certain expenses, that there’ll be reserve prices, what happens if the reserve isn’t met, that it will be bought in, that it will be announced publicly.
And then, too, I think the most significant contractual modifications of the fiduciary relationships, which are that the auction house maintains until the date of sale the right to rescind in its sole judgment if it thinks there is any liability possible. So it doesn’t even have to explain to the seller. It might want to, because they want to maintain that client relationship, but the auction house has the right until right before auction to pull a sale for any reason if it feels that there is some liability involved. And they do. They do do that.
Steve Schindler: Right. And sometimes it doesn’t seem entirely fair. There was a case a couple of years ago involving a consignment of a work of Katie Nolan to Sotheby’s —
Katie Wilson-Milne: Right.
Steve Schindler: And Katie Nolan had prior to the sale disclaimed authorship of the work because it had been in her view improperly conserved —
Katie Wilson-Milne: Was she the consigner or she —
Steve Schindler: No, she was not the consigner, but she was — she was —
Katie Wilson-Milne: She was the author of the work.
Steve Schindler: The author of the work and we know under the Visual Artists Rights Act that the author—
Katie Wilson-Milne: If you listened to our last episode.
Steve Schindler: Yes. That the author of a work has the right to disclaim authorship of the work if she believes that it has been damaged in a way it would reflect poorly on her honor and integrity. And in this case, Katie Nolan had viewed the work, observed that it had been improperly conserved, in her view, and publicly disclaimed authorship of the work, at which point Sotheby’s felt compelled to pull the work from the auction because it no longer could in its view give a warranty of authenticity —
Katie Wilson-Milne: Of authenticity.
Steve Schindler: That Sotheby’s could no longer make the warranty that this was a work of Katie Nolan even though it was indisputably by her hand. Sotheby’s was ultimately sued by the consigner for pulling the work in that way, and unfortunately because of the contract that you just referred to giving Sotheby’s the right and its sole discretion to remove a work from a sale anytime prior to the sale, the court sided with Sotheby’s.
And that’s it for today’s podcast please subscribe to us on iTunes or wherever you get your podcasts and send us feedback at podcast@schlaw.com. And if you like what you hear, give us a five star rating. And finally we want to thank our fabulous producer Jackie Santos for making us sound so good. Katie Wilson-Milne: Until next time, I’m Katie Wilson Milne. Steve Schindler: And I’m Steve Schindler, brining you the art law podcast, a podcast exploring the places where art intersects and interferes with the law. Katie Wilson-Milne: And vice versa. The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of company council in the relevant jurisdiction.
Produced by Jackie Santos.
Katie and Steve update listeners on the Massachusetts Supreme Judicial Court’s decision approving the settlement reached between the Attorney General and the Berkshire Museum, which allows the Museum to sell 40 of its most valuable works of art through Sotheby’s with some (minor) conditions. Katie and Steve go over the terms of the settlement and discuss their reservations about the form (if not substance) of this resolution. Since the recording of this bonus episode, it has been reported that the yet to open Lucas Museum in Los Angeles will purchase the painting Shuffleton’s Barbershop, Norman Rockwell’s iconic masterpiece. The rest of the works will be sold gradually at auction until a total of $55 million in proceeds is reached.
Memorandum of Decision Resources: https://berkshiremuseum.org/newvision/ago-summary/ http://lucasmuseum.org/news/lucas-museum-announces-acquisition-norman-rockwells-shuffletons-barbershop
On this month’s podcast we discuss the non-economic “moral rights” of artists in the context of the famous 5Pointz aerosol art mecca in Long Island City, Queens that was whitewashed and torn down in 2013. In the ensuing litigation, the aerosol artists asserted violations of their moral rights under the Visual Artist Rights Act, the U.S. moral rights statute. In a surprise to many, they recently won $6.7 million in damages after succeeding on these claims. The art, however, was permanently lost. Steve and Katie discuss the origin and contours of moral rights, how they fit into U.S. copyright law, the story of 5Pointz and the laws around street art and graffiti. They are joined by famous aerosol artist Jonathan Cohen (Meres One), 5Pointz event planner and artist representative Marie Cecile Flageul, and Renee Vara, the artists’ expert in the 5Pointz trial.
Resources: https://www.nytimes.com/2018/02/12/nyregion/5pointz-graffiti-judgment.html https://news.artnet.com/art-world/judge-awards-6-million-5pointz-lawsuit-1222394 http://nymag.com/daily/intelligencer/2018/02/artists-won-at-5pointz-but-the-decision-was-terrible-for-art.html https://www.google.com/search?q=photos+of+5pointz&rlz=1C1GGRV_enUS753US753&source=lnms&tbm=isch&sa=X&ved=0ahUKEwiZ5PiEtqbaAhUSuFMKHbrMCd8Q_AUICigB&biw=1920&bih=949 https://untappedcities.com/2014/10/14/35-photos-from-inside-the-demolition-at-5-pointz/ http://www.meresone.com/about/ http://meventusa.com/ms/marie-cecile-flageul/ https://www.varaart.com/ 5Pointz Opinion Denying Injunction 5Pointz Decision
Scientist Jamie Martin talks with us about wine forger Rudy Kurniawan, his work investigating wine fraud and the similarities between wine and art. Resources: https://www.netflix.com/title/80029708
Transcription: Katie Wilson-Milne: So we would be remiss to let you leave without talking about another type of good that Steve and I like a lot, wine. So you worked on the famous Rudy Kurniawan Wine Fraud case, and I'm curious how you transitioned from art to wine and how they’re similar or dissimilar? Jamie Martin: Yeah, the first experience with wine that I recall was working for Bill Koch for his civil case. Bill Koch had amassed vast wine cellar some of which was determined to have been fake wines and he unleashed to series of lawsuits against various wine auctions and auction houses and dealers. And he brought me in as a forensic expert to examine the bottles, to examine the labels, to examine the capsules, corks for evidence of historically inaccurate materials. Looking at a wine label is not a lot different than looking at a printed or painted work on paper. Something I was trained to do and I had done many, many times before. Looking at glass is not that different than looking at a vase. Looking at capsule is not that different than looking at something made of a malleable level. So in that case I was able to determine that the labels on many of the fraudulent bottles had been applied with modern adhesives. In some cases Elmer’s Glue and other cases glue stick, which was not available at the time that these vintages purportedly were bottled. Katie Wilson-Milne: Not used in Burgundy in 1890. Jamie Martin: Not typically, no. Some of the papers were papers that were coated with a modern material called styrene, which postdated the vintages by decades. Some of the labels had optical brightening agents in them, which under a black light, would make the labels glow. And many of the labels were printed with inks. And the colors of those inks weren’t invented or used at the time of the vintages. There was also deliberate aging of the labels. Material was used to cut out or clip out corners of the labels to make it look as if they’ve been slid back and forth in a rack. And then there was suspicious material rubbed over the label and bottled to make it look old. And in some cases we found synthetic material was used for that. Some of it was directional. Essentially it was not consistent with the deposition of grime or mold that you would expect if a bottle was conventionally stored in a wine cellar. That case carried over to the Rudy Kurniawan case where I was sent a large number of labels that were ceased in Kurniawan’s apartment in California, and I hope you provide a link to Sour Grapes on Netflix. And it – Katie Wilson-Milne: I will. Great movie. Less of an apartment and more of a large wealthy person’s house. Jamie Martin: It was essentially a wine – a fake wine factory, and there were a large collection of labels yet to be dated, and the FBI sent those to me. And when you look at some papers and hold them up to light, sometimes you see a watermark. You often see this on good stationary. Probably stationary from Steve and Katie’s law firm has a watermark – and watermarks can be traced to companies and watermarks can be traced to the introduction of a kind of paper. So just doing basic detective work, I was able to trace the paper to an Indonesian paper company who said, “Oh yeah, this is our paper. Would you like to know when we started making it?” And I said, “sure.” And they said, “1980s.” Katie Wilson-Milne: So good. Wow! Jamie Martin: So that was proof positive that Kurniawan was using a material that postdated his latest vintage by 20 or 30 years. Steve Schindler: Right and there is an analogy between wine and art in this sense, which is the value that we place on authenticity, on the thing being real. Because even in Knoedler case, there were collectors, purchasers who were perfectly happy to enjoy the works of art on their walls before they knew that they were fakes and in the wine case all of these very sophisticated collectors of wine sat around and drank these bottles and were ecstatic about them and raved about them and enjoyed them until they learned that Rudy was making them in his sink, mixing sort of common wines together to form what he was selling as a rare Burgundy. Katie Wilson-Milne: That’s one thing I think Knoedler really brought to the surface for a lot of people too. I mean, this was still the art they bought from Knoedler. I mean, it’s not like someone swapped out a painting on their wall. It was the art, they went to see that they loved, that they brought home, that they thought was worth it. Just when they found out it was by someone else, it was worthless to them. And same with wine. Makes you think about why a work of art is really valuable. What is it about the work of art we care about?
Produced by Jackie Santos.
On this month’s podcast we discuss the role of science in fine art. Specifically, what can science tell us about a work of art’s origin and authenticity? Can science help us discover fakes and forgeries undetected by traditional connoisseur style observation? We are joined by the famous art scientist Jamie Martin to discuss these issues, recount famous forgery scandals, and delve into his techniques and practices. Resources: http://orionanalytical.com/media/ http://www.sothebys.com/en/news-video/blogs/all-blogs/sotheby-s-at-large/2016/12/scientist-art-world-james-martin.html https://www.wired.com/2016/12/how-to-detect-art-forgery/ https://www.artsy.net/article/artsy-editorial-the-8-most-prolific-forgers-in-art-history-that-we-know-of https://www.vanityfair.com/culture/2012/10/wolfgang-beltracchi-helene-art-scam https://news.artnet.com/market/forger-wolfgang-beltracchi-exhibition-296551 http://www.nytimes.com/2012/07/19/arts/design/ken-perenyi-art-forger-now-sells-his-work-as-copies.html
Episode Transcription: Steve Schindler: Hi. I'm Steve Schindler. Katie Wilson-Milne: I'm Katie Wilson-Milne. Steve Schindler: Welcome to the Art Law podcast, a monthly podcast exploring the places where art intersects with and interferes with the law. Katie Wilson-Milne: And vice versa. The Art Law Podcast is sponsored by the Law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City. On this episode of the podcast we will be discussing the role of science and fine art. Specifically what can science tell us about the work of arts origin and authenticity? Can science help us discover fakes and forgeries that would be undetected by more traditional connoisseur-style observation? Steve Schindler: We’re here today with Jamie Martin, Senior Vice President and Director of Scientific Research at Sotheby’s auction house, a title that really doesn’t do Jamie justice. Jamie is an artist, art conservator and forensic scientist. In 2000, he founded a company called Orion Analytical that became the preeminent materials analysis and consulting firm, specializing in the scientific analysis of art and cultural property. Working at the intersection of art and science, Jamie has revealed multimillion dollar forgeries in the art market, taught at The Getty Conservation Institute and the FBI, and conducted more than 1800 scientific investigations for museums, galleries, insurance companies, and private collectors around the world. Katie and I have both worked closely with Jamie and it is a genuine pleasure to welcome him to the podcast. Welcome to the podcast Jamie. Jamie Martin: Hi! Katie Wilson-Milne: Yes, thanks for being here Jamie. So what can science tell us about art? Jamie Martin: The way I like to phrase it is, is that science helps art tell its own story. Science can reveal the structure of the work, its composition and its condition. Steve Schindler: How Jamie would you say that science intersects with questions about authenticity and fraud? Jamie Martin: Well, in about 2009, the College Art Association codified guidelines and standards for authentications and attributions. Steve Schindler: What is the College Art Association? Jamie Martin: I'm not a member, but my understanding is that it’s a national association of art historians principally in colleges but also working privately or working in museums as well. Steve Schindler: Okay, so they came out with some guidelines? Jamie Martin: They did and in codifying guidelines they identified three essential elements involved in the authentication attribution process. The first oldest most important and never to be replaced is stylistic connoisseurship, which is examination with learned eye of the scholar. The scholar is the person or the entity that attributes and actually authenticates work of art. The second essential element is the provenance of the work or the documented history from the time it left the artist studio to present day. And usually that’s fractured or incomplete in some way. The third essential element which has been part of these kinds of studies for at least a 100 years, but was codified in this document, is scientific or technical examination. And the role of science and technical examination in authentication and attribution studies is twofold, one is to test the claimed attributes of the attribution of the work and also test the claimed attributes of the provenance. In other words to see if the physical substance of the work is consistent with its attribution and provenance, the other principle aim of science and technology is to provide investigative leads, so to better understand the object – essentially to let the object tell its story about where it was, when it was, what it was. And those leads can help art historians and researchers better place the object in time, in some cases in a particular artist studio. Katie Wilson-Milne: So what is the analysis of the work actually look like in terms of what you’re doing, maybe walk us through a typical examination of a painting? Jamie Martin: So generally speaking from start to finish, every exam would start with visual inspection of the work in bright white light, the same way that a connoisseur would examine the work. They want to see the composition, or the design. They want to see the color, the opacity, essentially the facture of the work, the way the work is constructed. They’ll then move the light to the side, which is called raking light, and that reveals information about the texture of the work. And often identifies the presence of restoration or alteration, because in an authentication study a scientist doesn’t want to inadvertently identify restoration as original, find a problem and reach a wrong conclusion. Scientist and conservators then use ultraviolet light which, when I was a teenager these were lights on the ceiling of my room that illuminated Led Zeppelin posters. Steve Schindler: I had the same posters and the same lights – by the way. Jamie Martin: Alright. So we use the same lights now to illuminate works of art and materials have inherent fluorescence which allows us to see the distribution of different materials and often the distribution of restoration and alteration. We then use infrared light. We can't see infrared light as humans, but we can use cameras to detect it and record it and create an image. And with that we can often better see restoration, but more importantly we can see through the paint. We can see through some materials to see what lays beneath, so artist underdrawings. We can see inscriptions that have been obliterated or erased. And all of those are noninvasive techniques that basically tell us about the object as a whole. We then take the object and we put the object under what’s called a stereo binocular microscope – a microscope that gives us a three dimensional color image of the work and magnifications up to about 90 times – and with this we can look at the fine detail of the work. We can begin to understand its structure and its condition. We create a mental inventory of the number of different materials. We account for the presence of restoration. And this process helps guide the subsequent analyses that we do. The best most reliable way to analyze the work from a statistical point of view is to take the work of art, put it in a blender, destroy it, mix it up into a powder, take a pinch and analyze it. We obviously can't do that. So we have to select visually representative areas of our work and conduct our analyses on that. We have a range of noninvasive techniques that we can use. Not taking a physical sample, actually not touching the work of art, we can identify the elemental composition, so the elements like sodium or lead or mercury, we can identify where they are in the work. In the case of Remington sculpture, that can help determine whether the work was cast before Remington died or if it was cast after the artist died. And if after, whether it was authorized or unauthorized. If it’s a work of art like a painting or a painting on paper or a drawing, we can map the elemental composition of the work. So we can look for elements that stand out. Given the attribution, let’s say an artist who’s painting in 1800, if we find concentrations of elements associated with original material that is part of the object and those elements only became part of paints after 1800, then that raises red flags about the work. And then we can use other techniques to identify what those materials are. In variably however in most cases we need to take a sample and we need to analyze the sample so that we understand the full composition of the material to give you an idea of the kind of sample, the sample size that we need are typical sample sizes range from about 1/1000th of a millimeter to about 40/1000ths of a millimeter, which is about the width of a human hair. Katie Wilson-Milne: How do you even collect a sample that small? Jamie Martin: It’s good question. You collect it using the same microscope that you use to find the sample location, so using a microscope that’s analogous to a surgical microscope, same kind of microscope a neurosurgeon would use. And we actually use neurosurgeon tools. I use a scalpel. And I’ll use the scalpel to remove such a tiny piece of material, I can only see it with a microscope, but that one little tiny microscopic specimen can be used for one or two or five or ten separate analyses depending on what the questions are. Katie Wilson-Milne: Jamie I think one question we shouldn’t let go by for too long is how are you qualified to do this work, right. I mean the way you described the analysis of the art, presupposes a certain amount of knowledge when you look at the piece under the light initially and you’re sort of doing the visual analysis. How do you know how to do that? Jamie Martin: Well, conservation scientists have different backgrounds, some are PhDs who have advanced degrees in chemistry or engineering. Others come from the conservation ranks. And that’s the route I took. My background is a little different. It’s a bit unique in the field, when I was 13 my father gave me a microscope, a chemistry set and sent me to art school. And so from a very young age I was taught how to mix different powdered pigments together to make paint. And how to stretch canvases much the same way it was done in old master days in workshops. And at the same time I was blowing little things up in my bedroom with my chemistry set and beginning to explore the world with a microscope which sits on the desk I have now. After high school I attended a traditional art school in Baltimore. And we were taught to emulate the techniques of the old masters and one thing I became very proficient at doing was doing copies in museums where I could create works in some cases that were indistinguishable from the originals. I did a copy of William Merritt Chase of the Baltimore Museum of Art. And as I was walking out with it one day, the director of the museum asked me if I was taking it back to storage. And I sort of laughed. Steve Schindler: You were in training either to be a conservation professional or a forger – Jamie Martin: Well that – that’s very interesting when I applied to the conservation graduate programs which included Winterthur, the admissions committee raised questions and flagged me, because my art portfolio was so strong and my ability to copy was so good. They were concerned if they trained me as a conservator and a scientist that I would be a master forger. It turns out and I didn’t know at that time, I'm a bit of a master detective at catching forgers. So I got a graduate degree in art conservation at the University of Delaware, then I went on to postgraduate work at University of Cambridge. Then I set about creating the first two fee-for-service conservation analytical labs in the United States, one in a museum and one privately and they were both setup to provide basic conservation science services to conservators and museums that didn’t have scientists. So what equips me to take samples and what equips me to interpret the data and reach reliable, accurate conclusions is having taken about 15,000 samples and having conducted about 13,000 FTI or analyses. It’s just a lot of experience, the good luck, good fortune of working with really good scientists over the years who were able to teach me the tools of the trade. And then being surrounded by excellent people in museums and the conservation field and interestingly also in the art law field. Steve Schindler: So let’s talk about your detective skills, because one of the ways that we met was in connection with a case involving fakes and forgeries. How prevalent are fakes and forgeries in your view in the art market? Jamie Martin: Well, we really don’t know. We read in newspapers and magazines from time to time that it’s been estimated that 50% of works are fake or 80% of works are fake, but if you dig a bit deeper into those articles it’s often someone trying to make the claim to attract business and create a fear that everything is sold in the market place is potentially a fake. Katie Wilson-Milne: Yeah, I feel like I've read articles, “half the works on every museum all are fake, you just don’t know it.” Jamie Martin: Yeah, we just don’t know, there’s been no study done. There’s no data to look to. What we know publically is probably a small fraction of the art forgery case isn't fakes that are in circulation or from cases like the Beltracchi case or the Knoedler case or the Rudy Kurniawan case that dealt with wine, there are lot of investigations being done behind the scenes by law enforcement that we’ll probably never know about. And a lot of investigations I did were done under confidentiality agreements that I can't discuss. Someday I hope the FBI will get on to it, burst the forgery ring and make people whole. I would say that forgeries can be a significant problem, depending on what is being forged or faked and where it’s being sold. So generally a ring of forgers has a target market in sight. They more or less know the market that they want to create the works for and sell the works for. There is some evidence to suggest that forgeries pertaining to a particular artist spike up after a big exhibition on the artist or after publication of the catalogue raisonné, because there’s a lot of technical information and a lot of visual information that a forger can take and create a pastiche – using some of the materials that are disclosed in the publication. It’s one of the reasons why scientists like I, scientist in museums often don’t disclose everything we find, but withhold some important information, so that we don’t give away all the secrets of detection or we don’t disclose publically all of the stupid mistakes that forgers are making. We like them to continue to make those stupid mistakes. Katie Wilson-Milne: So can you tell our audience briefly about the Beltracchi case? Jamie Martin: Yeah, so Wolfgang Beltracchi and his wife devised a really sinister scheme to create a large group of fake works that reportedly created in Europe, say between 1910 and 1930. And they would use publications that sided exhibitions of works by known artist that didn’t give illustrations, didn’t give sizes. They gave the artist name, the date, and the title of the work. And that was the basis of the provenance for the work. They could create a work, point back to that publication and say, “Oh, here’s the work.” What was particularly clever was that they created the false provenance of the so-called “Jagers collection” and Jagers happened to be Beltracchi’s wife Helene’s maiden name. And what Beltracchi did was to create framed posters of his fakes, he put them in a room. He had period furniture. Katie Wilson-Milne: I love this part. Jamie Martin: And his wife dressed up as her grandmother and posed with the works. Beltracchi used an old box style camera that would make the image a little blurry. He printed the photographs on deckled paper, which would have been period, photocopied them. And then you can imagine when Helene would take the painting and present the perspective owner with the photograph of the painting photographed with her grandmother, people would say, “Oh my God, the family resemblance! You look so much like your grandmother.” And as this often the case with fakes and forgeries it doesn’t take much to nudge someone to the point of accepting what is false as true. They didn’t look deeper. That was enough for them to believe the story that Beltracchi assembled. Steve Schindler: It always seems in these cases that the purchasers and fakes so much want to believe. Whether it’s in the Rudy Kurniawan case that you just eluded to before – passionate collectors of wine want to believe that they’re getting these rare vintages so much that they overlook obvious clues. In other cases, they buy works where the signatures are misspelled, as we’ll get to, so part of it just seems to be tremendous excitement and passion on the part of the purchasers. Katie Wilson-Milne: Well and there’s no incentive for anyone in that chain to want something to be fake, right? The buyer wants it to be worth what they paid for it. They want it to be by the artists they think it’s from. So who in that chain wants to disrupt that? Jamie Martin: Well, in a very clever way of introducing the fakes is to introduce the fakes that art fairs or dealers where there’s a real time pressure to purchase. So for example in an art fair, a fake might be exhibited, and you might get two people in the span of two or three days looking at the work, basically competing for who’s going to purchase the work. There really isn't the time to step back to examine the claimed attributes, so the work is attributed to artist X in year Y. I think I’d like to step back, look at some books published on the artist perhaps the catalogue raisonné and see if this work really fits. And then I want to look at the provenance. And I want to find out if there was actually a Jagers collection. And if not, those are going to raise red flags for me. Katie Wilson-Milne: So how did he get caught? Jamie Martin: Beltracchi got caught, because the Doerner Institute in Munich, Germany was given a painting by the police to examine and they found two things working with an art historian who probably was the first person to break the case. He noted that the fake labels that were applied to the back of many of the works were of a gallery that didn’t exist at the time the works were purportedly dated. So the gallery label dates were mismatched. The Doerner Institute then examined the painting and they found that the painting contained historically inaccurate materials. So pigments that weren’t introduced and used at paints at the age of that particular work of art. And that’s enough to conclude that the work couldn’t have been – could not have been constructed at that time, and that raised huge flags. At that point I understand that police began to assemble lists of works that were likely Beltracchi fakes. I became involved through looking at a number of works for private collectors and auction houses and was commissioned actually by 60 Minutes to examine a fake Beltracchi work in the style of Ernst, so I could explain to Bob Simon how Beltracchi created the work, but more importantly how Beltracchi got caught. Now Beltracchi was very careful about his materials. He would purchase old canvases that would have been used in the same period, so if you tried to date the canvas, it would be appropriate. And he tried to select paints that contained pigments that would be used at that time. So he would go to the store and he would look for Winsor and Newton paint and he would turn it around and look at the label. And it would say Zinc White. And that was the limit of Beltracchi’s knowledge of paint manufacturers. Now because paint manufacturer from time to time hired me to reverse engineer their competitors’ products to tell them what they were using to make paint, I was aware that manufactures often topped off or added materials to paints. And in this case the manufacturer added a little bit of a very opaque pigment called Titanium White to the Zinc White. And they used modern synthetic organic pigment called Phthalocyanine Blue that they used to top off or make the blue paint that Beltracchi used more intense. And those two materials were very easy to detect. And they proved that that those works were not authentic. Beltracchi himself I think was quoted saying, “Ah yeah, the Titanium White.” Katie Wilson-Milne: We should probably interject, Steve, to explain the legal background that it’s obviously not illegal to copy something that’s in the public domain, if you say it’s a copy and you tell people that you painted it and it’s not by the original artist. What is illegal is fraud and pretending that a work authored by you is by another person and leading a buyer, inducing a buyer to buy that work based on that fact. Jamie Martin: Correct. Steve Schindler: And so one question, Jamie, is – you mentioned before that you, one of the things you search for are these anomalies and you’re able to determine whether a work could have been created at the time that it was purported to be created, but do you actually authenticate works? Jamie Martin: No, rarely will scientific or technical examination unilaterally attribute or authenticate a work. And -- Steve Schindler: Why is that? Jamie Martin: Well, because there isn't a chemical or material fingerprint that would allow you to individualize a work to one and only one artist at a particular time. Katie Wilson-Milne: So science can't tell you something is authentic, but it can tell you something is fake? Jamie Martin: It can tell you that something is fake. From time to time, you can form a conclusive, reliable, durable opinion that a work is fake based on science. It can also buttress an attribution more provenance, but it will never substitute for the absence of or a defect in provenance or stylistic connoisseurship. Steve Schindler: Do you think in the area of stylistic connoisseurship which, is often criticized as being sometimes objective, insular, elitist, whatever you will – whether there is a place for science or an opportunity for science to replace the work of the connoisseur and I'm thinking particularly about advances in artificial intelligence the type of technology that makes an Apple iPhone work, the facial recognition. Do you sense that there is a place for that kind of technology in making attributions or authentications? Jamie Martin: For probably about 10 years there’s been an emphasis in the computer science and physics disciplines to use image processing, computer analysis and things like fractal analysis, sparse coding analysis to essentially replace what – in some cases is viewed as the subjective eye of the kind of connoisseur – with the more “objective eye” of the computer looking at a photograph. There’s been some interesting and promising research done which I believe can enhance the work of authenticating or dating works, that is, clearly showing that something is inconsistent with the work of an artist. Or in the case of Dürer drawings – comparing Dürer drawings to see how closely the strokes and the pressure applied to the implement and the basic composition is. However I haven’t seen any technology at this point that is able to accurately attribute works absent the human input of a scholar, of a conservator, of a scientist. I think it’ll probably happen in my life time. It’ll hopefully happen before I retire. Katie Wilson-Milne: You describe a very complimentary process, but there has been some suggestion that there’s a tension between a traditional connoisseur – a PhD in art history, works at a museum – and scientific analysis that, I don’t know, there’s a perceived fear that science is replacing that scholarly expertise. Is that something you come in contact with or you also perceive? Jamie Martin: Well, so there are a universe of conversations probably that are going on and they’re informed by different experiences and backgrounds and opportunities. I haven’t experienced that tension myself, before or since coming the Sotheby's, but I come from an old school conservation science background where I'm one of three players. I view it as a three legged stool. And that first most important leg of this stool is the curator, is the catalogue raisonné author, is the independent expert. The second leg is the provenance leg, and I'm the third leg. My job is there just to steady the stool. Steve Schindler: You’re telling yourself short Jamie but – Katie Wilson-Milne: You’re creating a stool, but yes we take your points. Steve Schindler: Yeah, one of the things that also dawns on me because we – we have experienced the problem in what we do of authenticators being reluctant now to authenticate work for reasons that we’re all well aware of: they get sued. They get sued by people who view themselves as possessing authentic works and they disagree with authenticators’ opinions. Katie Wilson-Milne: What would be the basis for a lawsuit on those grounds? Steve Schindler: Well, we’ve seen a lot of different theories, most of which had been rejected. It could be a theory of negligence, there have been reasons as wild as antitrust theories that have been set out. And the interesting thing is most of the lawsuits against authenticators end up either being settled or dismissed favorably towards the authenticators, but they have to spend an awful lot of money defending themselves, which is why they – in many cases, foundations and authenticating boards have stopped authenticating, and experts who are not paid a great deal of money typically to give opinions and find themselves tremendously at risk and we’ve been working in the art law community trying to remedy that legislatively at least in New York, but it does dawn on me that machines can't get sued probably, not yet. And so if there was a room for science to provide a clear or more objective authentication, it might alleviate some of the burdens on the whole process, I don’t know if you have any reactions to that. Jamie Martin: I do I guess, I think the Knoedler case was probably a textbook case of where an expert in good faith working first for the Knoedler gallery and its director in providing reliable, accurate opinions on the attribution of authenticity of works and then subsequently working for a number of people who purchased works from the gallery – again in good faith providing accurate, reliable durable data and conclusions got caught up not in a lawsuit but in a flurry of subpoenas. Katie Wilson-Milne: This expert is you, Jamie. Jamie Martin: This expert is me. And I had never heard of a third-party expert having to retain legal council to produce documents and to represent the expert in court to answer allegations of obstruction of proper discovery and handling of evidence before. Katie Wilson-Milne: So even the scientist can get caught up in these legal issues. Jamie Martin: And it had a chilling effect during the Knoedler case. Before Knoedler, I could pick up the phone and call someone of the National Gallery and ask if I could come in and look through the research files on a particular case. Once the subpoenas went out and Knoedler, which included the director of the National Gallery – I would call the National Gallery and I was told by my colleagues, “We’ve been instructed by the legal counsel not to answer the phone when you call.” Now since Knoedler, that’s gotten better but the chilling effect in Knoedler was that you could be caught up in this and your life could be turned inside out. And other scientists who you know could say horrible things about you that had no basis in fact. And that was just the way the system worked. Katie Wilson-Milne: Let’s talk about the famous Knoedler case which, you were involved in it, we were also peripherally. Steve Schindler: Full disclosure – I guess at this point, since Jamie brought it up. We were representing Jamie and that’s how we were – fortunate enough to meet him and to be sitting here with him today. Katie Wilson-Milne: There were many, many lawyers involved in the Knoedler case. All right, so the Knoedler Gallery was the oldest and one of the most respected art galleries in New York City and the United States. It had been a business for 165 years in a beautiful town house on the Upper East Side. And in 2011, at the end of 2011, it abruptly shut down declaring bankruptcy. In the background of this declaration of bankruptcy in going out of business was a brewing scandal over the sale of about 40 works of art that Knoedler sold and had alleged work created by who’s who of modern masters: Jackson Pollock, Lee Krasner, Motherwell, Barnett Newman, Mark Rothko, William De Kooning, and others. There was one other dealer, Julian Weissman, who had sold 23 similar works of art. But we’ll focus on the Knoedler aspect of this. These works were said to have brought in up to $80 million in profits for the dealers and following the galleries, closing this started to come out. There were rapid succession of lawsuits that were filed by collectors, alleging that these works were fake. And not to give away the end of the story they were fake. The provenance of these works had been sketchy. The works had all been brought to Knoedler by a Long Island art dealer, her name was Glafira Rosales who claimed to have obtained these works – never before seen on the market – from the children of a European Jewish collector, who wanted to remain anonymous for a variety of tantalizing reasons which people can look up in the newspaper. This collector had supposedly bought these works through a dealer and friend of these artist directly from the artist studios in the ‘60s – the ‘50s and the ‘60s. So that’s why the works had never been seen on the market before. The story changed slightly over time and no documentation was ever provided by Rosales substantially in these origins, but that was the story that gallery retold to the buyers of these pieces and then later when they were brought in to these lawsuits. So Knoedler and its President, a woman named Ann Freedman did maintain that the works were genuine through the beginning of many of these lawsuits, notwithstanding the fact that Jamie demonstrated that many of them, conclusively were not genuine. But in August 2013 in a parallel criminal investigation at the U.S. attorney’s office was involved in, Rosales was indicted and the FBI raided a house in Queens, where a very talented Chinese immigrant artist had been creating all these works. He had been creating these De Kooning’s and Motherwell’s and Rothko’s and the evidence was right there. Steve Schindler: He had an amazing repertoire. Katie Wilson-Milne: Yeah it was incredible and it – and when law enforcement got at the house the doors were open, someone told me that or I read somewhere that a cereal bowl was half full and this artist had just fled. Nothing had been really taken or disturbed, so it was pretty conclusive, after this Knoedler and Ann Freedman changed their story. They admitted the works were fake. And then they argued that they had also been defrauded, that they had no way of knowing that the words would have been fake. So there were series of civil litigations, most of them have settled, no criminal charges were ever brought against the gallery or Ann Freedman. Glafira Rosales was indicted. She pled guilty. Steve Schindler: She pled guilty and was given a very lenient sentence, which was house arrest, I believe, and some restitution. Katie Wilson-Milne: Yeah and the Chinese artist is no longer in the United States and that’s all we know. So Jamie tell us how you were involved in the Knoedler case? Jamie Martin: Well, I was first hired by Ann Freedman and Knoedler Gallery to look at two purported Robert Motherwell paintings. And what became clear early on is that the works were created over old paintings, part of which had been removed with an electric orbital sander which was not a practice that Motherwell used. So that was one clue. Another clue was that the works had a series of white grounds that were materials that Motherwell was not using in the 1950s. One painting was signed and dated ‘53, the other was dated ‘56 is I recall. So I was finding materials that Motherwell wasn’t using till late ‘60s and I was finding pigments that weren’t introduced in paints until the ‘70s. So that work concluded and some years later I was asked to examine Jackson Pollock painting that was purchased for around $17 million. Katie Wilson-Milne: Also by the gallery or as – Jamie Martin: Yeah, it was sold by the gallery as a work by Jackson Pollock and within just a few days I was finding acrylic paint and I was finding pigments that weren’t being used and artist paints until the 1980s and 1990s. I issued a report, the attorney gave it to Knoedler, and Knoedler closed the next day. Katie Wilson-Milne: And so you were hired by a collector, a buyer to do that analysis? Jamie Martin: Yeah. I then became involved in a series of other works including a purported Mark Rothko painting and that painting was a fake based on a number of features, the principle one being that the Chinese forger used a white ground underneath the paint. Mark Rothko never used white grounds in the 1950s. Katie Wilson-Milne: What are white grounds? Jamie Martin: A ground would be like a primer, it would be like a base coat that was applied to the canvas. In the 1950s Rothko was using a transparent colored ground and in this case it was an opaque white ground and it was a white ground that you could see at the edges, if you’re new to look for it. So that was a tip off on that work and they were whole selection of other works that I examined. For collectors, also for the U.S. attorney’s office and FBI, and to put it in a nutshell, what I was finding in this group of more than 20 works was a pattern of reuse of old paintings to make new paintings, so that the backs of the paintings looked appropriately old. Katie Wilson-Milne: This is a common technique right? Beltracchi was doing this too. Jamie Martin: Very common technique. Take something that’s old and recycle it and on the front paint something that’s new and make it look old. So that was another thing I was finding – that material was being applied to the front of the works to make it look artificially old. I was also finding co-occurrence of the same material. So many of these works painted by more than five artists over a period that spanned about three decades from the late ‘40s to the early ‘60s contained the same white grounds. I mean, the same white paints. Katie Wilson-Milne: By different artists. Steve Schindler: So this was a case where you were fortunate to be able to have tested a number of works by the same forger and even though each work in itself had anomalies that led you to conclude that they were fakes, when you looked at them collectively and it was overwhelming? Jamie Martin: Exactly, so it was pointing to a common source for all of the paintings and that work continued. I was asked to examine the materials that were ceased from the Chinese forger’s garage which was an interesting process to go through for about six months. Katie Wilson-Milne: So you were working with the FBI for then. Jamie Martin: I was. I was working for the FBI and U.S. attorney’s office on the case as well. So I was able to look at the evidence that they ceased. I was able to examine practice paintings that the forger had created to try to achieve something that look convincing. Katie Wilson-Milne: You described several anomalies, what was the real smoking gun for you in the Knoedler case? Jamie Martin: Well, it was a different smoking gun for different works, I mean we – we knew for example that Jackson Pollock died in 1956, so when I'm finding polymers and when I'm finding pigments that were first discovered and patented and first used in paints decades after his death, the only explanation would be time travel – which I'm not a big fan of, so these were obviously fraudulent works. There were also features that contradicted the provenance. One thing that was mentioned in the provenance was that the works were collected over a period of a few years. And they were stored for decades and they were stored in a “hermetically sealed room,” which implies a room that had stable conditions – clean, archival – and many of the works showed paint transfers. They showed accumulation of debris and grime, which was just inconsistent with the story. And that’s one of the features we look at. We not only look at the composition of the work that we’re studying, but we look at the provenance. We look at the story to see if we see evidence of that or evidence that speaks against it. Katie Wilson-Milne: Am I remembering correctly that you found a fleece fiber in one of the paintings? Jamie Martin: Oh, that was a different painting. Katie Wilson-Milne: Oh okay, I love that. Steve Schindler: That was a different case, but that’s also one of my favorite stories. Why don’t you share that with us? Jamie Martin: This is a work that was signed and it was dated 1932 and the work was fairly large. As I recall, it was about 24” by 36” or 32” by 48” and as usual, I went through all the first steps with the work: technical imaging, stereo microscope exam. I made an inventory of all the materials used to create the work, from the canvas to the primer to all the different paints in the pallet. I analyzed all these materials, and I found that the binders and the pigments were consistent with paints that could have been used in 1932. And that’s the point at which a lot of scientists or labs would stop and they would write a report. Katie Wilson-Milne: It looks good. Jamie Martin: It looks fine, we find nothing to speak against it. That wasn’t my style, that wasn’t my practice, in part, because it’s informed by a forensic approach. So at that point whenever I engaged in a study and I find a result like that I start over. And I look at every square millimeter of the painting under the stereo microscope and I look for what’s called adventitious material, material that doesn’t belong there. Something that wasn’t part of the paint, something that the artist didn’t intend to include in the painting and I got – I started the bottom and by the time I got to the top two thirds of the painting, I found a fiber in the paint. And I knew it dried in the paint because two ends stuck out and the center was deeply embedded in dried paint. And I took a very small sample of that fiber and analyzed it and I found polypropylene. Polypropylene fiber was first discovered and introduced in 1958. So on the basis of finding one fiber I was able to conclude that there was no way that that work was painted in 1932. I had to spread out, I had to be sure that all the paint was integral across the surface. Fast forward to 2015, there’s a book published in Paris called The Forger. And it’s a story of a young man who meets a master forger who teaches the young man all the tricks of the trade and the last trick of the trade is: when you’re creating a fake you should always wear a cotton or linen smock, because if one synthetic fiber falls from your clothing and becomes embedded in the painting a good scientist will find it and declare the work a fake. That’s been part of a lecture I've given that was on the Columbia Art Law School website for eight years. And I suspect the person writing the book has internet connection. Katie Wilson-Milne: Yeah, I do just want to say before we get off Knoedler that it would be hard to overestimate how significant this scandal was for the art world. I mean the art world is a very secretive place deals happen privately, there was not a lot of paperwork and the fact that this scandal was going on and being covered up so well for – well over a decade and that 10s of millions of dollars were being made off the sale of these fake works was really disturbing and even art world people who certainly don’t follow legal claims and cases know about this case, because of the amount of money and the number of forgeries, but also because of the significance of the Knoedler gallery to New York, it really pioneered the art gallery world and it had been at the forefront of the art gallery world in the United States for really long time. So if a buyer went to Knoedler they felt like, “well, if there’s anywhere I can go and I can trust what they’re going to tell me, it’s the Knoedler gallery.” And that really upended people sense of safety I think in the art market. Steve Schindler: Right, and that was also reinforced by the judge who was hearing these cases in one of his decisions, because the Knoedler gallery and Ann Freedman, one of their defenses was well these sophisticated buyers should have known better, should have done their own due diligence and one of the things that judge said was, “but they were buying these works from Knoedler. They were buying them from one of the most respected galleries in New York.” Katie Wilson-Milne: Which is the due diligence. Steve Schindler: Right. Well actually, and one of the things – as long as we were talking about Knoedler still – that always interested me was how Ann Freedman used the fear of authenticators to speak out in her favor and we had represented a couple of these individuals who invariably recalled over to a gallery with a crowd of people shown a fake work and who looked at it and either didn’t say anything or said, “oh that’s nice” or something along those lines. And then afterwards she claimed that they had authenticated these works. And the way that they had authenticated them was to not shout out in a crowded room, “I think this is a fake!” Katie Wilson-Milne: They stood in front of the work. Steve Schindler: And they didn’t say anything. So – and of course they would never do that, they were not asked to do that, but even in the most ideal conditions most of these types of experts would have been afraid to speak out like that for fear of being sued and dragged further into this kind of case in the way that Jamie mentioned that he was. Katie Wilson-Milne: And another significant aspect of Knoedler, and one of the reasons we are so thrilled to be talking to you, Jamie, is that it was one of the first times I think for a lot of people that they understood how science could interact with claims of fakes and forgeries and it was in such a public way that I think the scientific analysis of art hadn’t been widely discussed or understood before. I don’t know if you could talk a little bit about how important scientific analysis was to the outcome of the Knoedler scandal in general but also if you’ve seen the importance of scientific analysis or people’s perceived – how they perceive the importance of scientific analysis increase after Knoedler? Jamie Martin: Well, I think what you have seen after Knoedler is an increase in the number of investor backed art analysis labs who are offering services to art investors and to some degree of art collectors. So, it was clear from Knoedler, because Knoedler was so widely publicized and covered over such a long period of time. And that the science really did factor quite importantly in the determinations that people recognized that science can be a very effective and necessary tool to assess those claimed attributes. Katie Wilson-Milne: I will just say that, I perceive the scientific analysis of Knoedler being one of the most important aspects of the proof that was used in those cases and that without the science there were such competing opinions from so called connoisseurs that it was difficult for a non-expert audience like the judge or if there had been a jury to make sense of those kinds of claims, but when there’s the scientific report it sort of – it changed the game in the case. Jamie Martin: Yeah, I testified in the De Sole case in January 2016, and what I heard after the trial was that the jury really did rely on the scientific information – the presentation of the findings in such a straight forward, visually accessible way – allowed them to understand the weight of the scientific evidence against the works, much in the same way that the testimony about the financial analysis and accounting did to. Katie Wilson-Milne: Right. The De Sole case, just for our audience, was one of the biggest Knoedler cases that went to trial and then ultimately settled. Steve Schindler: So, Jamie, if we were assembling the all-time Hall of Fame of forgers, who do you think would be on the top of the list? Who is the best all-time forger in whatever categories you want to rate them? Jamie Martin: Let’s say, so this would be modern times, this would be since Van Meegeren because fabulous forgeries were going on in Greek and Roman time and every time since. And Thomas Hoving talks a lot about that in his book. Van Meegeren was an incredible forger who exploited what he knew conservation scientists could and could not do. He knew that we could identify pigments. He knew that we had trouble identifying the binder, the liquid or glue that you mix with pigments to make paint. So he was very careful in his selection of pigments. In order to make his paintings dry quickly he threw in a synthetic polymer called Bakelite, which, after he created the work, he would put it an oven and heat it for some hours or days and it would be rock hard, as if the paint had aged naturally over three or 400 years. He was later found out. He was accused of collaborating with the Nazis, and the court instructed him that if he really was a master forger, he should paint a fake Vermeer in the court room. Katie Wilson-Milne: So he was forging Vermeers? Jamie Martin: He was forging Vermeers, and he sold a work to Goebbels, and he was in a lot of hot water over that. Steve Schindler: Wasn’t that also one of his defenses and the collaboration allegation, that, “Well I wasn’t collaborating, I sold him a fake, I sold the Nazis fake art, not real art.” Jamie Martin: Yeah. It was worth a try, it was a little flimsy. The thing is is that forgers have access to the same technical literature that I do. So conservation scientists like us, we publish the results of our findings, of analyses of documented artists, and if a forger wants to go and read our findings and try to replicate the same materials, theoretically they can do that. And there is a lot of evidence that forgers do look at technical literature. The best forgers I've seen – well, the worst forger I've seen, is a man named William Toy and he was creating fake paintings in Louisiana. His downfall was his love of cats. Katie Wilson-Milne: That’s a classic downfall! Jamie Martin: He had 20 or 30 cats in his home, and I did the project for the FBI, and they gave me memory sticks from cameras that showed cats all over his house, including cats on the table where he made his fakes. And in every one of the fake works I examined for the FBI I found cat hair embedded. So he was not a careful forger, but the forgers – Steve Schindler: There were lot of lessons in that story. Jamie Martin: Yes. Steve Schindler: Some involved cats. Jamie Martin: Yeah, don’t paint around cats and don’t wear polar flees when you’re creating an old master. The better forgers, the forgers that really had the painting skill, the kind of skill that I learned when I was painting, would have to be Beltracchi and then one other forger who’s name I refuse to speak publically, because he is absolutely unrepentant about his work. But he’s probably the most technically gifted painter-forger I've ever seen. Katie Wilson-Milne: And never caught. Jamie Martin: No, caught. Katie Wilson-Milne: Well, he was caught but not punished. Jamie Martin: I caught him many times, but he was never indicted and he was never brought to account. Katie Wilson-Milne: We’ll post links to some of these references. Steve Schindler: We’ve also seen him bragging about his accomplishments and it’s frustrating. Katie Wilson-Milne: Yeah he speaks often in public in New York about his great skills. Steve Schindler: We could do this probably for another hour, but we know you have places to go and every good thing has to come to an end, but thank you so much for joining us on our podcast. Jamie Martin: You’re welcome, it’s always a pleasure. Katie Wilson-Milne: Until next time I'm Katie Wilson Milne. Steve Schindler: And I'm Steve Schindler bringing you the Art Law Podcast. A podcast exploring the places where art intersects with and interferes with the law. Katie Wilson-Milne: And vice versa.
Produced by Jackie Santos
Katie and Steve give listeners an update on the Berkshire Museum deaccessioning controversy. The Massachusetts Attorney General and the Museum have reached an agreement, pending approval by the Supreme Judicial Court, permitting sales of up to $55 million with the famous Norman Rockwell painting Shuffleton's Barbershop going to an undisclosed museum. The Rockwell sons have dropped out of the litigation, but the other plaintiffs oppose the compromise and are still fighting.
Resources:
Berkshire Museum Cy Pres Complaint in Massachusetts Supreme Judicial Court
In our first full-length episode, we discuss the Berkshire Museum’s controversial decision to sell off 40 works of iconic art from its permanent collection to raise funds to rebrand itself as a science and natural history museum, and build a large endowment. Only after the regional museum had signed an agreement with Sotheby’s auction house to deaccession these works, did the museum announce its plans to the public. Museum and cultural groups, the fine arts community, and certain local constituents have passionately opposed these plans. Other stakeholders and commentators have strongly supported the museum’s efforts to monetize its collection and rebrand. We will discuss both the ethical and legal issues around deaccessioning and the Berkshire Museum’s actions in particular. We are joined by the financial and art-market journalist, Felix Salmon. More information on the Berkshire Museum and deaccessioning: From Felix Salmon: * http://www.felixsalmon.com/ * https://www.newyorker.com/culture/culture-desk/the-lost-masterpieces-of-norman-rockwell-country * https://hyperallergic.com/409126/berkshire-museum-battle-sothebys-auction/
More perspectives: * https://berkshiremuseum.org/newvision/ * https://www.bostonglobe.com/opinion/editorials/2017/11/26/change-die-choice-clear-for-berkshire-museum/zLEFaUrZiXfJRNlhaVeb1K/story.html * https://www.bostonglobe.com/opinion/2018/01/27/the-berkshire-museum-defends-its-most-important-asset-its-open-doors/M92tisiPanIT93ZHXKysCP/story.html * https://www.nytimes.com/2017/07/25/arts/design/berkshire-museum-art-auction-criticized.html * http://www.artnews.com/2017/07/25/museum-alliance-and-directors-group-issue-open-letter-criticizing-berkshire-museums-deaccession-plan/
Litigation status and some papers: * http://www.artnews.com/2018/02/05/berkshire-museum-case-heads-massachusetts-supreme-court/ * http://www.berkshireeagle.com/stories/big-reveal-from-ag-due-monday-on-berkshire-museum,531233 * https://www.scribd.com/document/362156288/Complaint-in-Berkshire-Museum-Case * http://mediad.publicbroadcasting.net/p/wfcr/files/verified_complaint_b2211761_.pdf?_ga=2.41888810.982465672.1508763064-1725306865.1506095323 * https://cdn2.hubspot.net/hubfs/878449/Motion%20for%20Injunction%20Pending%20Appeal(B2218262).pdf?t=1518034885672
More about deaccessioning: * https://www.aamd.org/sites/default/files/document/PositionPaperDeaccessioning%2011.07.pdf * https://www.npr.org/2014/08/11/339532879/as-museums-try-to-make-ends-meet-deaccession-is-the-art-worlds-dirty-word * http://www.philly.com/philly/education/la-salle-museum-plans-sale-of-prized-artwork-masterpieces-20180103.html * https://www.nytimes.com/2014/08/10/arts/design/censured-delaware-art-museum-plans-to-divest-more-works.html * http://legacy.wbur.org/2011/10/28/rose-art-museum * http://www.nytimes.com/2008/12/28/arts/design/28fink.html
Episode Transcription: Steven Schindler: Hi, I’m Steven Schindler. Katie Wilson-Milne: I’m Katie Wilson-Milne. Steven Schindler: Welcome to the Art Law of Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law. Katie Wilson-Milne: And vice-versa. The Art Law Podcast is sponsored by the law firm Schindler Cohen & Hochman LLP, a premier litigation and art law boutique New York City. Felix Salmon: There’s this very vivid and high-stakes debate, which people care about very much about the deaccessioning and like 99% of the planet has no idea it really exists. But, the people who care about it, care about it very much. They basically said, look at this, there is a bunch of billionaires out there in the world who are willing to pay millions and millions of dollars for the art in our little museum, and we don’t have very much money and we can raise like $50 million just by selling off all of our art. And then, honestly we would rather have $50 million then the bunch of dusty old paintings, this art is worth more to those billionaires who we don’t even know who they are, then it is to us. And, the idea of a museum being a place which preserves cultural heritage basically goes straight out the window and they get to play with this vast pool of money that they have decided they can conjure up just by selling off their paintings. Katie Wilson-Milne: In July 2017, the Berkshire Museum, a quirky museum in Pittsfield, Massachusetts announced to the public that it would auction of 40 works of art from its collection. To raise more than $60 million for capital projects, to transition to a science and national history museum, and to raise a substantial endowment. Chief among the objects for sale are two premier paintings Norman Rockwell, one thought widely to be his best work, and two Alexander Calder sculptures. These works alone were estimated to bring in over $40 million. Now, when a museum decides to sell works from its collection, it is called deaccessioning. Deaccessioning is controversial and the Berkshire Museum’s decision to sell works from its collection set off a firestorm in the art community, that spawned two multi-party law suits, a devoted protest movement, and sanction in disavowal from the art and museum community. Steven Schindler: And that’s what we want to talk about in this episode. We will explore the question, ‘Can a museum sell art from its permanent collection?’ One reason why we choose to focus on this story in this episode is that it is really a great vehicle to think more generally about ethical issues around museum deaccessioning, the plight of small regional museums and about the public’s interest and ownership stake in museum art collections. Katie Wilson-Milne: These really are the questions at the heart of the Berkshire Museum story, so let’s turn to it. To really understand both sides of these issues, we need to take a step back and look at the history of the museum and the surrounding area. In 1903, a wealthy local philanthropist named Zenas Crane donated a building located in Pittsfield, Massachusetts for use as a public museum of art and artifacts. Pittsfield is a city in Western Mass, an area called the Berkshires known for its natural beauty and today a lively summer vacation and art scene. Crane wanted this museum in rural Massachusetts to be a window to the world for the area’s people. The Berkshire museum was originally located behind and operated by the Berkshire Athenaeum, and they shared a board of trustees. The museums earlier relationship with the Athenaeum is important to our story for one primary reason: The Massachusetts legislation establishing the Athenaeum in 1871 stated that its property could not be removed from the town of Pittsfield. In 1932, the museum became a separate and standalone entity. By law, the Athenaeum transferred to the museum, the museum building, its land, as well as the money and objects donated by Zenas Crane. The 1932 legislation doing this did not have any language about the property staying in Pittsfield, but it did state that museum property be used according to any written conditions of the donor. Things changed in Pittsfield in the following decades, as the trial court in the current litigations stated, “Since the 70s, the national economic winds have eroded the Berkshire County business environment resulting in many industries and businesses dying off or relocating. The population has shrunk and most importantly generous benefactors have vanished.” Steven Schindler: And it’s true, Pittsfield today is an economically struggling and depopulating city. The Berkshire Museum, the city’s main museum is in financial trouble. It operates at a significance deficit and has a relatively small endowment. In light of the museum’s financial needs, the current board of trustees embarked on a master planning process in 2015 in which they considered changes to the museum’s mission and physical layout, they also considered options for increasing revenue and reducing costs, including approaching Christie’s and Sotheby’s to value the museum’s collection. Katie Wilson-Milne: And, we should note the museums former director, Stuart Chase, has adamantly opposed deaccessioning works to pay for operating expenses, which caused a clash with the board. He was replaced with a new director, Van Shields, in 2011, who has been proponent of monetizing the museum’s collection. Steven Schindler: The board also hired a consulting firm, heald focus groups and several board retreats focused on the future of the museum. The consulting firm recommended the museum raised $25.6 million to stabilize operations and suggested the deaccessioning of 22 to 41 works of art. The board eventually opted to raise much more, a $60 million plan with $20 million to go toward transforming the museum into a science museum and $40 million toward a robust endowment. By the fall of 2016, the board had decided to sell off the most valuable parts of the museum’s collection to raise these funds. And in spring of 2017, the board signed an agreement with Sotheby’s to auction of 40 works no longer deemed relevant to the museums updated mission. Months later in July 2017, the museum announced its plan to deaccession works of art to the public for the very first time. Sotheby’s anticipated that the auctions would raise somewhere between $46 and $68 million. Katie Wilson-Milne: And, while only 40 works were up for sale out of the museum’s 40,000 or so objects, these works were the vast majority of the Berkshire Museum’s collections value, and included pieces by famous artists such as Norman Rockwell and Alexander Calder. Norman Rockwell’s painting, Shuffleton’s Barber Shop, widely thought to be his best work, alone accounts for an estimated 35% of the value of the entire museum collection. Now Norman Rockwell had lived and worked in the Berkshires and had a close relationship with the museum. He in fact had called it his favorite museum and he donated two of the works to be sold at auction to the museum himself in 1958 and 1960. Interestingly, Alexander Calder, now one of the world’s most famous sculptors with works regularly selling for tens of millions of dollars, got his start with the Berkshire Museum. His first ever public commissions flanked the existing museum’s theatre and his father’s woodwork sculptures define another of the museum spaces. Among the works to be sold are two Calder sculptures acquired in the 1930’s, when the museum was the first to give Calder an exhibition and the first museum to purchase his works. So that’s the factual background. There are many vocal supporters and opponents of what the museum’s called its “New Vision Plan” and the public outrage and legal battles comes next. Steven Schindler: So, let’s dive into the ethical and legal issues in this case. And what’s interesting to me is the overlap between the ethical and legal issues. So, starting with the ethical issues; certain museum member groups have adopted ethical guidelines for deaccessioning, and principally these groups are the American Alliance of Museums and the Association of Art Museum Directors. And, these two groups have both adopted ethical guidelines and any museum that’s affiliated with or the directors who are affiliated with these groups are really ethically bound to go along with them. Over the years, the rules for deaccessioning have developed, but in principle these ethical rules require that each museum have and adopt a set of guidelines that deal with managing their collections and how you buy and you sell art. One of the principle guidelines is that whenever you sell works of art, and there are number of reasons why museums are entitled to sell works of art, but one of the principle rules is that when you sell or deaccession works of art, the proceeds of deaccessioning should only be used to buy new works, is simply not permitted to use the proceeds of selling art to pay for electricity or to build a new movie theatre. So, for years the Berkshire Museum had a standard deacessioning policy, one that would fit right squarely within the guidelines that we’ve just been discussing, and it had on occasion deacessioned works in accordance with these kinds of guidelines, they sold works and they bought other works. But, it turns out that shortly after they consigned the 40 works to Sotheby's, somebody looked at their policy and said, “Well this doesn’t make sense and this consignment to Sotheby's is contrary to the policy that we have.” So what did they do? They amended the policy after the fact, specifically allowing the very transaction that they were contemplating. And the consequence of violating these ethical guidelines is that the museum gets sanctioned and can no longer borrow works, which is central to the core operating function of a museum. Now once this became public, the Massachusetts Cultural Council, the Smithsonian, the Peabody Essex, AAM, AAMC, AAMD, all vociferously came out against the sale and basically called this a violation of the public trust. So, these ethical guidelines are enough to ostracize the Berkshire Museum from the museum community, discourage donors from giving, and prevent it from cooperating productively with other museums in the future. They do not however make the museum’s deacessioning illegal. At least in Massachusetts, there are no laws adopting these ethical guidelines, where in New York we do have such laws, but at least in Massachusetts these are ethical guidelines and are not legally binding standards. Katie Wilson-Milne: But it’s not just an ethical issue, right Steve? Steven Schindler: No, in fact two high profile law suits have been filed. Katie Wilson-Milne: So, what are the legal arguments given that Massachusetts doesn’t have a statute prohibiting deaccessioning for operating expenses? Steven Schindler: Well, this goes back again to the history of the museum and whether the museum, under its own legal commitments and state laws, permit it to sell these works. Two groups of plaintiffs have sued the museum seeking to enjoin the sale. Now, let me describe these two law suits. The first law suit was brought primarily by the sons of Norman Rockwell, and they name the trustees of the Berkshire Museum as defendants and also brought into the law suit, Maura Healey, who is the attorney general of the State of Massachusetts, in her capacities as attorney general. The second law suit was brought by members of the Berkshire Museum. Both of these law suits were eventually consolidated and arguments were heard before the trial judge as to whether or not the sale of Sotheby should be enjoined or stopped. So, the parties before the court argued that the sale of the museum’s core art collection violates three restrictions. The first argument was that the sale of the works to Sotheby’s violated the museum’s charitable purpose, contained in its charter to be an art museum. The second argument was that the statutes creating the museum and its predecessor entity, that is the Athenaeum or Athenaeum, prevent it from selling any of the art acquired by the museum or its predecessor before 1932. And then, the third argument is that Norman Rockwell himself intended and the museum agreed that his art would remain at the museum for the community in perpetuity. So, that is the sort of first set of arguments which we can call either breach of trust, breach of contract. The second set of arguments is based upon the trustees’ of the museums alleged breach of their fiduciary duty of care to the museum. And the way that argument generally goes is that essentially that the museum’s decision to sell off the core collection of the museum was not reasonable under all of the circumstances. And that rather than undertaking an extensive survey and search to try to see if there were any other ways to keep the museum solvent while retaining the collection that they didn’t do any of those things. And, their failure to explore any alternatives, constitutes a breach of their fiduciary duty of care. Now, let me just stop here for legal concepts that are relevant. The first is how do you get an injunction and what is it? Typically, you are entitled to enjoin something from happening if you can show that you will be irreparably harmed if an injunction is not issued and that generally means that money after the fact is not going to compensate you for your loss. You also have to be able to show to the judge that you are likely to succeed on the merits and that the equities that is looking at the harm or potential harm to both sides are in your favor. And so, with this mind both cases went before the judge seeking this kind of preliminary injunction of the Sotheby sale. The other legal standard that comes into play here is a somewhat arcane concept called Standing, Legal Standing. And that question is who has the right to go to the judge and ask that action be taken on behalf of themselves or on behalf of the museum. And in this case, both of the private parties had difficulty with standing. The judge had observed that while the Rockwell heirs were indeed sons of Norman Rockwell, the problem was that they were not executor of his estate and therefore didn’t have the right to come into court on behalf of Norman Rockwell’s estate. And then, with respect to the members, the judge also observed that the trustees of the museum are the ones who have the authority to act for the museum and simply by the virtue of the fact that you are a member of a museum doesn’t mean that you are entitled to come into court and challenge the actions of the museum. I’m a member of the Metropolitan Museum of Art, I pay a few hundred dollars a year for that privilege, but I can’t go into court and enjoin them from building the next new wing. Now, while the attorney general had standing to bring this law suit, the trial judge at least after hearing the case in October of 2017 decided that the attorney general did not meet the standard for obtaining a preliminary injunction. And principally, the judge concluded that the attorney general was not likely to succeed on the merits of the case. After the trial court dismissed the case and denied plaintiff’s request for an injunction, the parties immediately appealed. And, now to tell us more about the controversy is Felix Salmon. Felix Salmon is a financial journalist, formerly of Portfolio Magazine and Euromoney and a former finance blogger for Reuters. He has hosted Slate’s ”Money Podcast” since 2014. Felix has recently writing about the controversy at the Berkshire Museum. Welcome to the Podcast Felix. So, why is the deaccessioning is such a big deal, why should anybody care? Felix Salmon: So, I think one way to think about this is to put yourself in the shoes of Norman Rockwell when he donates what is probably his single greatest painting, arguably his single greatest painting, Shuffleton's Barbershop, to the Berkshire Museum in the 1950s. And, back then, there was no such thing as the deaccessioning. Deacessioning only really began as a thing in the 1970s. So, when Norman Rockwell donates this painting to the Berkshire Museum, and Norman Rockwell lives in the Berkshires, he has done his entire practice in the Berkshire, he cares about the Berkshires. What is it that he is doing? And what he doing quite explicitly, and this has been recorded contemporaneous letters and back and forth between him and the then directors of museum, is he is giving his painting to the people of the Berkshires, for the people of the Berkshires, for them to look at and enjoy in perpetuity. That’s what museums do, you give your work of art to a museum, and the museum then is a custodian basically for the painting, and presents it in a certain context and manages to – and people can come to museum to see that work of art, that’s the whole point. What happens in deaccessioning is that the museum basically reneges on that agreement and says, we no longer feel that it’s our job to look after this painting and to show it to the people to the Berkshires and to use it for the benefit of the people of Berkshires, instead what we are going to do is we are going to ship it off to Sotheby’s in New York, they are going to sell it to the highest bidder who is almost certainly not going to be in the Berkshires and we are going to use the cash to build an atrium. That is clearly not what the agreement between -- no one in the original agreement when Rockwell gives that painting to the Berkshire Museum ever dreamed that might ever happen. Steven Schindler: Right. Are there any circumstances in which deaccessioning is acceptable? Felix Salmon: Absolutely. Yes. And the deaccessioning happens frequently, and it happens all the time. And grand institutions like the Museums of Modern Art or the Metropolitan Museum or any major museum you guys can think of is constantly deaccessioning their various works. Now, what they are not doing is selling off the Desmoiselles, they are not selling off Starry Night. They’re not selling off their greatest artworks. What they are doing is they are saying, we have vastly more art than we can ever show, that for whatever reason is not important or interesting or doesn’t fit into our program, and at the same time, and this is the important thing, we have a relentless appetite to stay relevant to create a program which is important to our audience, and so we need to do acquisitions. And so what they are basically doing is swapping out, and they are saying, if we sell a bunch of art here that gives us the resources to buy a bunch of out there. What art is not is asset on the balance sheet, which can be liquidated just to fill a whole in your annual P&L. That art is always in the history of museum finance been held on the balance sheet of the zero value for exactly that reason. But not that it has never happened, it has happened, but when it does happen there is nearly always a controversy and a bit of bru ha ha. And most museums directors, when they start moving in that direction, tend to do so quite apologetically and talk a lot about existential crises and how they have no choice and they’re trying to create like a whole new sustainable situation, where they’re never going to have to do this again and they’re very apologetic about it. One of the interest things about the Berkshire Museum announcement was that there was none of that and they were just enthusiastically selling off literally what seems to be well over 90% of the value of their collections. Katie Wilson-Milne: Yeah. I think we want to ask you too about what went wrong in this particular example. Because, I think for probably many of non-art world or non-museum listeners, it makes total sense for a museum to sell assets to generate liquidity when it needs to keep the lights on or to pay salaries. It’s only real asset is the art. If it doesn’t have funds coming in from another source and there is art that’s not being displayed, why not sell it? I mean, I know you disagree. Felix Salmon: Yeah. And, because I mean -- the first response to that is there is a stock versus flow problem there, you have generally don’t sell of this family silver to plug, you know, to pay a credit card bill. Steven Schindler: But, what if I wanted to do it to send my daughter to college? There has to be some discussion at some point, wouldn’t there be of weighing priorities and what is important, I mean it may be that -- my great grandmother left her prized chifforobe to be handed down from generation to generation. And then, one day I wake up and I say, well, I can either look at this dusty relic or I can sell it and send my daughter to college, and what would she rather have, because she is not here any longer to talk her about it? Felix Salmon: Right. And then – I’m sympathetic, and you of course have every right to do that. And, I’m sympathetic to anyone who pushes back against the idea that we should totally run our lives according to the wishes of dead people. You know, dead people are dead, like, let’s run our lives according to the wishes of what we are doing right now, but a museum is a living thing, and a museum exists to look after artworks and to preserve artworks. And it’s not -- as I say, that they are never allowed to deaccession, they totally are. But, that is within the context of creating a collection, not in the context of an annual shortfall. If you are having annual shortfalls, that’s a bigger issue which is hard to solve on a sustainable basis through deaccessioning. One of the things we are seeing with the Berkshire Museum is that they are actually going one step further, and they are trying to fill a kind of annual shortfall in perpetuity by selling off so much art, like that they can put it into an endowment and then just extract money from the endowment to cover these hypothetical shortfalls that they’ll will have in decades time, and that seems a little bit weird to me. The other really important thing when you talk about the deacessioning is to just have one eye on future donations, the slogan is that collectors collect art, and museums collect collectors. And so, the question is always in the back of our head, how are we going to collect the collectors? Every collector in the world is looking at you and looking at how you look after the art that you have been entrusted by previous collectors. If collectors look at you and say, well, the way you look after the art that has been entrusted to you by artists like Norman Rockwell and other previous collectors is you just sell it off to make payroll, you are not going to get very many future collectors donating you anything at all. So, in terms of the long term future of the institution, you are kind of cutting yourself off at the knee caps if you start engaging in egregious deacessioning of this form. Katie Wilson-Milne: Are you saying that, that’s the underpinning for why there are ethical guidelines on deacessioning? Felix Salmon: That’s one of the underpinnings; it’s not the only one. There is also this idea that there is a job of museums which is to keep art and to look after art and that is a very central role that museums have. One of the things you see frequently in auction catalogues is there will be some editioned work, there will be like a Warhol say, and the auction catalogue will say, this is the last of this series in private hands, and they will say, the other five are all in museums, and this is your last chance to get one of the paintings in this series, because the other five are all in museums. And what’s the thinking behind that? What's was the logic behind that? The logic behind that is obviously if the other five are all in museums, they’re never going to come on the market. That’s just an understood part of the art market, the whole art market, the way that people think about what’s available and what isn’t would change, valuations would certainly fall. Steven Schindler: Reading your articles about Berkshire Museum, I’m struck by your objections to the process of what happened, the lack of transparency in the museum’s actions. This is a situation where the museum seemed pretty careful to try to hide what they were doing from public view. Felix Salmon: There is absolutely no conceivable reason why you would sign a contract with Sotheby's, which is like an irrevocable contract, and ship the art off to New York City before you announce that you are facing financial difficulties and that you have come to the conclusion that a certain amount of the deacessioning will be necessary. What we have seen time and time again with museums is that they come out and say, “eek!” we have this really nasty cash crunch, and we are going to have to do something pretty drastic, and one of the options on the table is deacessioning of some form or another. And, once the announcement has been made, a bunch of options often start presenting themselves and people start coming along and saying, hey, I didn’t realize you are having this really nasty cash crunch, and maybe I can help out. The Berkshire Museum never gave the community that option, if there was a local benefactor say who might have been able to acquire one of the Rockwells and donate it to the Norman Rockwell Museum down the street, that would have kept the Rockwell in the Berkshires, that would provided liquidity to the Berkshire Museum, and that might have helped bridge a certain amount of gaps. So, it seems clear that there was something else going on in this case. Katie Wilson-Milne: Well, and what do you think it was, because clearly the museum’s position is they were having trouble fundraising, they didn’t have this wealthy local owner. Felix Salmon: Well one of the reasons that they were having trouble fundraising was that they fired all their fundraisers, but yes. Katie Wilson-Milne: Pittsfield especially, but the Berkshire is not a wealthy area, there are wealthy people that go in the summer to go Tanglewood or Jacob’s Pillow or do other art related things, but it doesn’t have a wealthy year-round population anymore and one of the museum’s claims, I think, or what’s implicit in their papers is that the times have changed, the population of the Berkshires had changed. You know, people were not as interested in going to look at Norman Rockwell painting or Calder sculpture. Felix Salmon: Well, that would maybe be more compelling if they’d actually tired. And, it’s interesting, because those claims are very similar, the situation of Pittsfield in Berkshire is actually very similar to the situations of North Adams which is a couple of hours -- Steven Schindler: MASS MoCA. Felix Salmon: -- further north, and not only is North Adams is home to MASS MoCA, which is a hugely successful museum, and is expanding and is doing amazing stuff right now, but it has even now started opening up new spaces and Tom Kraines wants to open up a new museum there with Frank Garry and there is a whole bunch of like interesting cultural stuff going on in North Adams, and it’s becoming a cultural destination. Pittsfield can do that too, Pittsfield is bigger it has better communications and the museum is located in the city centre, in the part of the town which is dire need of rehabilitation and that was the other thing, North Adams one of the ways that MASS MoCA put itself on the map was by getting grants from the city and state to say -- and saying like if you look help us out here we will revitalize the entire town. Katie Wilson-Milne: And they did. Felix Salmon: And they really did, it worked. And that’s something which again the Berkshire Museum never really attempted. Steven Schindler: Could you tell, and I haven’t been able to tell us from the court papers, whether or not there were any studies done to actually demonstrate that attendance was down or the people weren’t interested in coming to see these works of art, was that just something that the museum just said to justify what it was doing? Felix Salmon: The museum claimed that they spent a couple of years talking to various local stakeholders. Most of the local stakeholders who are consulted and talking about this consultation process will tell you that basically the way these meetings worked, because they get got called in and they were asked, “Do you send your kid to the Berkshire Museum’s Ooey Gooey Camp?” And they say, “Yes, we do, we love it!” And they said, “Would you like more things like Ooey Gooey Camp?” And they said, “Yes! More things like Ooey Gooey Camp would be great!” And the museum never asked should we sell our Rockwells in order to create more Ooey Gooey Camps, but they took the answers to those questions as a public buy-in to the idea that they should, they never really presented the people they were talking to with any kind of tradeoffs. And, the first that the local community ever heard that there was any kind of fiscal crisis was the announcement that they already signed this deal with Sotheby's. Steven Schindler: So, how much is the opposition coming from the local community and how much is coming from what I would view as sort of out of town elitist art snobs, like ourselves? Felix Salmon: So, this is -- the museum loves the idea that like there is a bunch of snobby art types in Boston and New York, who don’t understand the realities of Pittsfield and are out of touch and honestly like have they even been to Pittsfield and who are they to say anything, and the local community is supportive of them and all you need to do is to read the letters page of the Berkshire Eagle to understand that is totally not true and that Save The Art Campaign and various other people are genuinely grassroots. It’s not to say that there is no support. I mean, what the museum has done is really cleaved the town in two, and friendships have been broken over this and people and – there are marriages where people are on either side of it, it’s really like the big debate in Pittsfield and in the surrounding area, but there is no -- I mean, that’s primary reason for them not to have done this in the first place. Like, a museum is meant to be the focal point, a place in the town which brings the town together, instead what they have done is they have torn the town apart. That in itself is good reason not to have gone down this road. Katie Wilson-Milne: Should say that the Berkshire Eagles is the amazing local paper that has had terrific journalism about this whole saga and has actually I think changed its mind, came out in the very beginning like the Boston Globe did in favor of this New Vision Plan, and then later, after doing some serious digging, recanted that and has been pretty against deacessioning plan. Felix Salmon: To the point at which the museum is now refusing to talk to the Berkshire Eagle. Katie Wilson-Milne: So, it seems obvious to us, especially the way you are presenting it, that this was a terrible decision, no museum that knows what’s doing, would ever have deacessioned in this manner at least, if that all, to pay for capital projects, but what was the board thinking? I mean, are these people who are so completely out of touch, who have no concept of their obligations as trustees? Felix Salmon: Well, one of the things that Van Shields did when he became director was he basically put an end to any kind of acquisitions policy. The people who were in charge of acquisitions got pushed out of the museum, and the art shows in the museum started becoming less and less of a priority. There are non-art shows in the museum, it’s also a museum of natural history and science and stuff like that. The board chair is a science teacher and the role played, there was this a group of friends of the museum who would pay a $1000 a year to meet with the museum to talk about their collections and that kind of stuffs. And that group just waned to nothing, because there were no meetings. When people went up to Van Shields and said I have this collection of X, Y, Z, do you -- would you be interested in acquiring it, should that it donate it to you? Van, he would just turn around and say, you know what, don’t bother we’ll just sell it, we’ll never exhibit it. And so -- Katie Wilson-Milne: He said that out loud? Felix Salmon: He said that out loud to collectors. Katie Wilson-Milne: Wow! Steven Schindler: Wow! Felix Salmon: And so, what happened was that every -- he systematically pushed out and alienated everyone in the community who had any love for art, which meant that by the time he presented his plans to the board, there were no real -- there was no one on the board who cared about the art holdings. Katie Wilson-Milne: Because they would have already left? Felix Salmon: Exactly. Katie Wilson-Milne: So, are there any examples you know of where deacessioning was done appropriately and that should be sort of the gold standard for museums who face this quandary? Felix Salmon: So, obviously, as I say, that the way that larger successful museums like MoMa or the Met do their deaccessioning is perfectly fine – Katie Wilson-Milne: And no one objects. Felix Salmon: -- and no one objects. If what you wanted to do is use art – use proceeds from the sale art for non-acquisition purposes, the example I gave in my New Yorker piece was the New-York History Society. Katie Wilson-Milne: Right. Felix Salmon: And, they did something which was highly controversial and the lot of people to this day think they shouldn’t have done it, but what they did was what I call responsible deaccessioning. They talked to the attorney general. They talked to all of the stakeholders. They created a system whereby even if someone won the work of art being auctioned, they still wouldn’t be guaranteed that they could take it home, because any other museum in first New York State, but then anywhere else in the country would have a sort of rights of first refusal to buy it at a discount to that price. They tried very hard to keep that art in the museum world broadly defined, but I will say that this is – that litigating this stuff in the courts as this is being done is a clear sign that something has gone very, very wrong, like it should never reach this point. And there were other things which are clear signs, like for instance if you are going to be a museum of science and art, two of the works being sold are very important Calder pieces, which were acquired by the museum. They were the first works that Calder ever sold to any museum. They were part not only of the museum’s attempt to show great art in the Berkshires, but they were also very scientifically important. They were motorized in a way that no art had ever been done before. And of course Calder and his dad Stirling Calder, who built a bunch of the upstairs room in Berkshire Museum where were very local, like, these works are so integral to not only the mission of the museum, but also to the history of the museum that you would never sell them. Like that would, it would be thinkable to sell them and the idea they just got sort of piled into this job lot without so much as a second thought, again is the indication that something just went hardly wrong here. If you are going to be an art museum of the Berkshires, then frankly Calder and Rockwell are the top two names that you want to have, because those are the two great Berkshires artists. Katie Wilson-Milne: So, will it be different if what was being deaccessioned wasn’t art. Is there something special about art that makes people so upset at this prospect they wouldn’t be true if it was a significance piece of furniture from a certain period or some kind of non-art object that had historical significance? Is there something about art? Felix Salmon: I think what happened is that the valuations that artists been able to achieve in the secondary market have skewed incentives that there is really no non-art object that a museum is likely to own, which you could send off to Sotheby's and which could fetch $30 or $40 million. Steven Schindler: There are the 40,000 other things that they had in their collection. Felix Salmon: And none of those were being -- Katie Wilson-Milne: Were worth nothing, right. Felix Salmon: Consigned, exactly, and Sotheby's had no interest in those. And it’s not just the Berkshire Museum, it’s pretty much all museums. You could go along to the Met and you could take all of the furniture in the Met and consign it at Sotheby's and add it altogether and it would be worth less than one of their paintings. Katie Wilson-Milne: So, they just never do it, because it wouldn’t raise the money? Felix Salmon: It doesn’t move the needle. Katie Wilson-Milne: So, in conclusion; museum sells art all the time, deaccessioning is a common form of collections management. But, it is accepted by the museum and fine art community only if the funds go to buy new art, not to the operations of the museum like salaries, renovations, et cetera. That puts a small regional museum, which is asset rich, but cash poor in a difficult position. And while there may be legal reasons why a museum can’t sell its own art, such as if the donor put a restriction on the sale of the work, the museum agents violate fiduciary obligations or the sale is illegal from some independent reason, they are typically far more ethical and moral concerns at play. Steven Schindler: And that’s it for today’s podcast. Katie Wilson-Milne: We will share information about the Berkshire Museum and other deaccessioning controversies on the podcast website, artlawpodcast.com, and in the show notes, as well as some more information on our guest Felix Salmon. Steven Schindler: And please subscribe to us on iTunes or wherever you get your podcasts and send us feedback at podcast@schlaw.com. We would love to hear from you. Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne. Steven Schindler: And I’m Steven Schindler bringing you the art law podcast, a podcast exploring the places where art intersects with and interferes with the law. Katie Wilson-Milne: And vice-versa.
Produced by Jackie Santos
In our introductory episode we introduce ourselves and discuss the podcast’s theme of exploring topics where art intersects with and interferes with the law, and vice versa. We preview upcoming episodes, including our first full length episode on when and how museums may sell art from their collections (known as deaccessioning) and the public outcry these decisions have. Other episodes will explore artist moral rights and street art, censorship of art, scientific analysis of art and authenticity scandals, appropriation art and the limits of copyright, art and activism, the rise of art financing, art auctions and Nazi looted art and cultural property disputes. Episodes will feature discussions of current events and guest commentary.