Tuesday, April 21, 2015

Act May Allow Artists Higher Deductions to Donated Artworks

On April 14, Patrick Leahy, senator of Vermont, again proposed the Artist-Museum Partnership Act, which would allow artists to deduct the fair market value of artworks donated to museums, libraries, or other educational institutions. Under current law, 26 U.S. Code § 170(e)(1)(A), artists may only deduct the cost of supplies in making the artwork, whereas a collector who donates the same work can deduct its full fair market value. The Act seeks to encourage artists to give their art to public institutions, a practice which virtually ceased following the introduction of this provision in the tax code in 1969, by creating a financial benefit.

The current provision was intended to prevent abuses of the tax code, where artists would be able to deduct more than the actual value of the work, because of the difficulty of valuing art objects prior to market sale.  However, the Act requires that the donation be limited by “artistic adjusted gross income,” income from the work, and also requires the artist to obtain a qualified appraisal of the fair market value of the work, as is currently required for collectors intending to deduct the value of a donated work. Additionally, the work must be donated to a qualified organization, where the donated item is related to the institution’s tax exempt purpose, and museums are often selective in determining which works will be accepted.

Supporters include the Association of Art Museum Directors, American Alliance of Museums, Americans for the Arts, League of American Orchestras, OPERA America, Dance/USA, National Assembly of State Arts Agencies, the Vermont Arts Counsel, and the Shelburne Museum. However, Senator Leahy has proposed this bill every legislative session since 2000 and it has not passed. The current political climate and stagnation of the U.S. Congress only decrease the chance that it will succeed this time around.

More via The Art Newspaper.


Resale Royalties Bill Proposed for Visual Artists

Siegelaub's "Artist's Reserved Rights..." Agreement.

Siegelaub’s “Artist’s Reserved Rights…” Agreement.

On Wednesday, the American Royalties Too (ART) Act of 2015, which would give visual artists resale royalties, was reintroduced by senators Tammy Baldwin and Ed Markey and the representative Jerrold Nadler. If passed, the Act would require a 5% royalty payment on works of visual art sold at auction for more than $5,000 to be paid to the artist or the artist’s estate. The Act seeks to correct a perceived inequity between visual artists, who do not typically benefit from any increase in the value of art beyond a first sale, and artists who produce books, music, or film, who do benefit from derivative or reproducible income.

The Act had been proposed in February 2014 (and previously in 1986 and 1987) but Congress failed to vote on it prior to the end of the legislative session last summer.  Supporters believe the current proposal is better positioned this time because of increased support of other government agencies. The U.S. Copyright Office recently published an analysis in support of resale royalties for visual artists. Over 70 other countries have already enacted a resale royalty provision for artists, though the implementation of the Author Resale Right in the EU has been unsteady at times, drawing criticism and retaliation from art dealers and auction houses.

More via The Art Newspaper.


Photographer Wins Privacy Infringement Case



Last week, the New York Appellate Division, First Department, found that privacy law does not protect individuals in glass-walled apartments from being photographed by an artist in a neighboring building.  The artist, Arne Svenson, is a critically acclaimed fine art photographer who used a telephoto camera lens to photograph people in the building across from him, without their consent, and exhibited a series of these photographs, called “The Neighbors,” in galleries in Los Angeles and New York. Two of the neighbors, Matthew and Martha G. Foster, sued Svenson on behalf of themselves and their children in May 2013 seeing damages and injunctive relief for violation of their right to privacy under New York Civil Rights Law §§ 50, 51; however, these statutes limit the tort of privacy to appropriations used for commercial (advertising or trade) purposes to avoid contradicting the First Amendment.

In August 2013, the Supreme Court ruled in favor of Svenson, finding that art is granted a broader protection of free speech than images used for advertising or trade purposes.  An artist “may create and sell a work of art that resembles an individual without his or her written consent,” and therefore, Svenson’s photos, as art and valued artistic expression, are shielded from sections 50 and 51 of the New York Civil Rights Law. Displaying the photographs in an exhibition “promote[s] the enjoyment of art,” a purpose beyond advertising or trade.

Judge Dianne T. Renwick, writing for the Appellate Division, agreed with the Supreme Court. Because Svenson’s photographs “constituted art work,” they were not used for advertising or trade and the statute did not apply.  The court found that “advertising and trade purpose” does not extend to all objects bought and sold in commerce, and advertising to promote the art work in connection with its sale is permitted under the First Amendment. The Fosters had no viable claim for violation of the right to privacy.

More via the ABA Journal and artnet News.


Creative Time To Restage Tania Bruguera’s Tatlin’s Whisper #6 in Times Square

Havana City, Havanna, 31 March 2009

Havana City, Havanna, 31 March 2009

Creative Time is staging a performance of Tania Bruguera’s Tatlin’s Whisper #6 in Times Square on Monday, April 13 from 12:00–2:00 p.m.

According to Artnet,

The performance is a public act of solidarity with Bruguera and other artists around the world currently facing violence and criminal charges for exercising their freedom of expression. In a Facebook event to publicize the happening, organizers declare: ”As citizens of the world with a shared humanity, we urge the government of Cuba to drop all charges against Tania Bruguera, Angel Santiesteban, and Danilo Maldonado “El Sexto,” who are either imprisoned or facing imprisonment for doing what every person of the planet should be able to do: expressing themselves.”

More info via Creative Time’s Facebook page.


Should Art Authenticators Get Insurance?

Ronald Spencer discusses insurance as protection for art experts in the most recent issue of Spencer’s Art Law Journal, published on artnet news.  As experts increasingly face the risk of expensive litigation when offering opinions on the authenticity of artworks, and therefore are reluctant to give firm authentication statements, insurance may offset this risk and encourage experts to render opinions. Professional liability insurance for art experts, now offered by the College Art Association,  often includes coverage for attorney’s fees, which can amount to a significant burden for solo authenticators and independent art scholars in a legal dispute.

However, insurers have found art authentication activities challenging to assess.  The subjective and complex visual perceptions which often form the basis for an authentication opinion do not neatly conform to the standards used by insurance underwriters to evaluate risk.  Insurers usually require formal, standardized procedures: each expert’s methods should be reviewed and recorded, and the expert must follow these methods as a condition of coverage, though general descriptions of the basis of an opinion often suffice.

The umbrella term for this type of coverage also fails to fit this type of service. Insurers use the technical definition of “professional services” as work performed for a fee, but the fee charged for an authentication opinion rarely reflects liability risk. In response, Spencer proposes that experts charge a fee, even if nominal, and include the cost of the insurance in the fee.

More via artnet news.


Deaccessioning Europe

A new post on the long dormant Deaccessioning Blog.  As Europe faces the financial effects of the recession, many countries have turned to the trove of artworks in state-owned museums for funds.

More via The Deaccessioning Blog and The New York Times.


Gardner Heist Thieves Named by the FBI

According to Breitbart News, this month, the FBI has confirmed the identities of the thieves who robbed 13 paintings from the Isabella Stewart Gardner Museum in Boston in 1990. Breitbart News reports that law-enforcement sources have identified two career criminals, George Reissfelder and Lenny DiMuzio, as the perpetrators. Both men died within a year of the crime. Reissfelder was a career criminal who was convicted of murdering a guard during a robbery in 1966, but current Secretary of State John Kerry, who was appointed to represent Reissfelder in 1982, was able to get the conviction overturned. After being set free, Reissfelder got involved with a local group of burglars, armed robbers, home invaders and murderers headed by a man named Carmelo Merlino. One of the members of the group was DiMuzio. Sources revealed to Breitbart News that they believe Merlino set up the Gardner heist for Reissfelder and DiMuzio. Merlino was convicted of robbery and died in federal prison of diabetes in 2005.

The missing artworks have never been found, despite a $5 million reward offered by the museum for their return. Included among the stolen works were a Manet, three Rembrandts and The Concert by Vermeer, currently estimated at $250 million. Though investigators have pursued other individuals linked to Merlino who may have had knowledge of their whereabouts, the works have not been located, despite the difficulty of selling such famous masterpieces on the black market.

More via Breitbart News and The New York Times. Thank you Blaise Niosi for the heads up.


Clancco, Clancco: The Source for Art & Law, Clancco.com, and Art & Law are trademarks owned by Sergio Muñoz Sarmiento. The views expressed on this site are those of Sergio Muñoz Sarmiento and of the artists and writers who submit to Clancco.com. They are not the views of any other organization, legal or otherwise. All content contained on or made available through Clancco.com is not intended to and does not constitute legal advice and no attorney-client relationship is formed, nor is anything submitted to Clancco.com treated as confidential.

Website Terms of Use, Privacy, and Applicable Law.

Switch to our mobile site