Sunday, June 7, 2020

Former Paddle 8 CEO sued

The former chief executive of Paddle8, Valentine Uhovski, is being sued by a coalition of unnamed creditors.

According to The Art Newspaper, Uhovski “allegedly ‘engaged in acts of gross mismanagement and disloyalty’ by using funds from online sales—including charity auctions—to pay the company’s operating expenses.”

Someone should make a TV series on art industry shenanigans, starring Uhovski and Inigo Philbrick?


Fundamentals of Copyright Law in the Data Era

Copyright Notice in black and white

Attorneys looking for some interesting copyright content while getting that coveted CLE may want to look at this PLI program. You can even access this Practicing Law Institute webcast from the comfort of your own home and sweatpants. I’ll be leading the discussion around public art and copyright. Webcast will take place on June 25, 2020 starting at 9am EST. There are 5 other great presenters and practitioners leading very interesting discussions as well. Hope you can join us!


Why You Should Attend 

Copyright law continues to evolve in ways than inevitably capture public attention.  Recent years have delivered headline changes to what was once considered settled tenets of copyright law.  This program features a comprehensive review of copyright basics and its latest updates, covering the fundamentals behind copyright’s origins and enforcement considerations as well as key case law and regulatory developments.  Lawyers new to the practice should find this program to serve as a helpful primer whereas experienced copyright lawyers should find the coverage of recent updates most helpful.

What You Will Learn

– Basic Principles of Copyright Law 
– Enforcing Copyrights
– New Cases in Copyright Law—Internet and Beyond
– Intermediary Liability and the DMCA
– Copyright Issues in Visual Arts

Who Should Attend

Attorneys new to copyright law and more experienced practitioners seeking a review of the latest updates should find this program to be helpful.

More info here.


Morning Women, the Triumph of the Trivial, Dots, the Invasion of Normandy…and Free Stuff

May 10, 2020

The person who writes for fools is always sure of a large audience. – Arthur Schopenhauer

I have to share a sweet moment with you. I really enjoy my morning routine, especially now during the ‘Rona. It’s my time to hone my coffee pour-over skills, focus on client matters, read that thing we used to call a newspaper, and enjoy some great music in peace and quiet. I enjoy it so much that I created a morning playlist via Spotify, which, unbeknownst to me at the time and without direct intention, turned out to be comprised entirely of women artists. The 4 ½ hour list, Morning Women, is a collection of unique and very talented women singer-songwriters, mostly from the Texas / Southwest region. I hope you too find it to be more than a feeling. Last week a few readers emailed me (one texted at one in the morning) asking why I hadn’t mentioned the dematerialization of a Damien Hirst painting. You know, the shenanigan where a group of Brooklyn hipsters cut up a $30K Hirst print and sold each dot for $480 a piece. I didn’t mention it because I thought the idea was about as fresh as a month-old diaper. But here we are, changing diapers.

According to these hamsters—and The Fashion Law Blog (yes, you read that correctly)—this act was a “critique” of art as commodity, artist as brand, and the art market. Blah, blah, blah. Artnet, the bastion of online art journalism, touts the group of “artists” as being “known for its ‘news-making stunts that straddle the lines of conceptual art, contemporary design, and internet gaggery’”. Artspeak…today’s commodity and currency.

Since the art discussion concerning this romper room is not that interesting, we are of course left with the legal question concerning the shredding of an artist’s work, presumably without his consent. Unfortunately that legal quesiton is as refreshing as used mouthwash. What is that legal discourse, you ask? The 1990 Visual Artists Rights Act, which is also about as useful as (a) a 1970s typewriter for dancers and choreographers, (b) dancers and choreographers, or (c) all of the above. All you need to know about VARA (sounds like my favorite Almodovar film), is that it is the 1990 U.S. law protecting the soul and aura of the artist and enacted, drum roll please, after the so-called death of the author. Oh, yeah! It was also the law that applied in two cases that are now part of the VARA Hall of Fame: Mass MoCA v. Büchel and the 5Pointz Michelangelos v. Property.

Here’s a free dot for you.

While on the subject of free goodies (and you don’t have to be a Bernie-bro to like free stuff), although I am not taking any new pro bono cases at the moment, I would really like for you to have a copy of this original drawing I made back in 2018. Please feel free to print it, cut it out and paste it or frame it to your bathroom wall (where mine resides), kitchen, or favorite brothel. I’d like to encourage you to take a picture of it, in situ, and email that pic to me. You may just be lucky enough to be featured here next week!

Copyright 2018 SMS. All rights reserved.

How bored are sports fanatics? So bored that last week ESPN ranked the top 74 sneakers in NBA history. Guess which kicks took the top spot?

If you get sick with COVID-19, is your employer liable? Very good question. One that galleries, art fairs and auctions houses should think about, I’d say, quite seriously. Maybe, I don’t know, check-in with legal counsel?

Sotheby’s is planning on having in-person auctions next month. What else can they do if the ship is sinking? I’ll tell you what they could do: let’s start with, for a spokesperson, find someone who was not an intern at the United Nations just four years ago. I’m not kidding! It’s almost—almost—as bad as having 24-year old kids advising Supreme Court justices.

But, according to Sotheby’s CEO, Charles Stewart, the ship isn’t sinking, it’s just unmoored and heading in the wrong direction. Stewart claims that quarantined folks in pajamas are passionately buying not only low-end goods (by “low-end” he means Cartier watches), but also contemporary art. The Art Newspaper: “In his 5 May email, the chief executive once again underscored the equal footing of the art and luxury markets. Since March, Stewart notes, Sotheby’s has held 37 online auctions totalling nearly $70m, including $1.3m for a Cartier bracelet, the same price achieved for George Condo’s 2005 painting.” [sic] I wonder how much my vintage Evel Knievel stunt-cycle would fetch?

Open the doors. “If a supermarket paying its people $12 an hour can safely operate, so can museums whose directors, curators, and PR and fundraising flacks make multiples more.” That’s the National Review’s Brian T. Allen arguing that Texas museums are currently occupied by “Safe Space U” snowflakes and directors who equate re-openings with planning SEAL team missions and the Normandy Invasion. Although bathed in incredulity, Allen’s article does highlight one interesting point when he suggests that this is “a perfect chance for museums to do something truly radical, or truly reactionary. Just open permanent-collection galleries first.” True. Let’s forget about traveling exhibitions by the same artists for a little while—the same exhibition that you will see regardless of whether you are in Barcelona, Hong Kong, Los Angeles or the moon—and instead focus on the art within a museum’s collection. Or how about exhibiting local artists. To my knowledge, there is nothing in the U.S. Constitution that states that every art institution has to exhibit the same art or the same artist.

I suppose some will think grand re-openings make sense. After all, whether you work at a supermarket, auction house or museum, you’re expected to report to work, stock shelves, and bag the goods, right? Why would art institutions be any different? Because art, unlike culture, is not essential.

Do you also miss acerbic art criticism?I just dream it’s still by my side.

Christopher Knight wins a Pulitzer? Come on, man! And apparently for opposing a museum’s conventional desire to expand its footprint, hire the same architects that every art institution hires, and look exactly like every other art institution on the planet. That’s the controversy. If that’s equivalent to All the President’s Men, that should tell you how shallow the pool of art criticism is. Knight, as some of you may remember, is the guy—sorry, Pulitzer recipient—that  got his clock cleaned by Donn Zaretsky in the fight over museums and deaccessioning. Apparently you don’t need training in journalism any more; just a blessing from God (or mom, Happy Mother’s Day!). And how does God create an art critic? He gets rid of reason and accountability.

Art criticism …RIP. If you’re thinking Kenny Schachter or Jerry Saltz are art critics, then our situation is officially dire. As in dire. As in the Mexican drug cartels just found out you swindled them out of a million dollars dire. So to the question of “who do we award a Pulitzer to, i.e.- who do we award X to, where X is an award, prize, grant, etc.,” we’re back to what I call The Edward James Olmos Effect. More on that next week! Today, I’ll point you to what I think is the new art criticism: right here!

How many of you sweat tears every time the ol’ Reaper knocks on Justice Ginsburg’s door? I bet you grab the nearest calendar and count the days until Tuesday, November 3rd.

While we’re on the subject of Let’s.Get.Rid.Of.Old.Stuff., here are two useless and pestiferous practices we should abolish, in perpetuity:

Pretense. Let’s please eviscerate the “I am so honored to be…,” and the “Humbled to be…” that so many in the artworld love to write on Facebook and Instagram. You know what I’m talking about, “I’m so honored to be in a group show with 500 other artists in a small non-profit space in Tuscaloosa, Alabama.” Or, “Humbled to have received a $200 grant from the Church of the Useless Miracle to curate my exhibition critiquing the lack of critical art in post-Colonial Nations.” No one, no one is honored or humbled by that. Ok, maybe humbled.

Heroes. Let me say it clearly: Artists. Do. Not. Have. Heroes. To my utter dismay, the last few years I’ve heard some “artists” proudly announce that they have “heroes,” many of them pointing to other artists and other artists’ practices. This is such an annoyance. Artists shouldn’t believe in or uphold such petty superstitions. Damsels in distress have heroes. Gotham City has heroes. Children have heroes. But artists do not have heroes.

Well, looks like it’s time for me to kiss you goodbye. ‘til next week,


Stupid things, Skools, Bodies of Water, Covid Apps, Communists…and the First Amendment

“Blessed are the forgetful; for they get over their stupidities, too.” – Friedrich Nietzsche, Beyond Good and Evil

No, this is not the time to go to law school. I’m aware that artists are losing their jobs and income, and some are currently experiencing an existential ponder that usually ends with wanting to “change the world, fight the system,” or get a new career. Good luck. Aside from enjoying the Socratic method via Zoom—tantamount to painting with an I-Pad—I’m not sure now’s the time to go on an existential cruise for $175K. What will the world be like in 3 years, when you’ll be graduating with debt, an uncertain job market, Biden or Trump as president, and wondering if it was all worthwhile. The art industry certainly will have changed, and most likely much, much leaner and meaner. But, if you’re thinking of practicing in areas such as employment, insurance, mergers or patents, for example, this just might be the time. And, you’ll be able to do so in the comfort of your pajamas. Pretty good!

On the subject of What Your Kids Learn In College, hundreds of communist “academics” threaten to not bless the universe with Marxist musings if their demands are not met. According to one soon-to-be-unemployed PhD grad, Covid was “the straw that broke the back of higher education in this country.” Apparently CUNY Grad Center is still issuing PhD degrees to writers who use well-worn metaphors.

Speaking of “doing stupid things,” with the recent lifting of stay-at-home orders, how many of you are ready to go out and waste your day away? I for one am not rushing out for burgers, beers, art or the beach anytime soon. But how about an outing in New Mexico?

With much of the country under stay-at-home orders due to COVID-19, what do these orders mean for the six freedoms of the First Amendment? (First of all, how many of you can actually list the 6 freedoms of the First Amendment?) Can government force us to download a “Contact” app that warns others if you happen to be infected with Covid-19. Constitutional law expert and law professor Josh Blackman breaks it down on this podcast. Blackman uses the classic example that one may protest and do as they wish, similar to swinging your fist left and right, up until the point that you intend to or actually hit another person. Similarly, the issue during Covid is not as simple as “being ready and willing to work” or claiming that government is restricting one’s ability to operate and profit from their business (i.e.- economic engine). The issue is when does that “willingness to work” and “business activity” actually harm or have the potential to harm or kill another person. Incidentally, I find it curious that many of the same people that, before Covid (BC), complained that working was pure Capitalist exploitation now complain that they’re being kept from working, i.e.- being exploited by Capitalists. Interesting times indeed.

How many of you would download a Covid-App that would track who’s infected and your proximity to it? Reason magazine quips that “It probably won’t be long before police use the logs to answer questions like ‘Who was within Bluetooth range of the bank teller during the robbery?’” How would this app impact race and ethnicity? If it’s true that Covid tends to impact more brown and black people, it’s going to seem a bit “odd” when, if Covid infected, people start moving away from black and brown bodies in galleries and art museums. Or not.

Please enjoy this interesting photo from my good friend, artist, and fellow bandmate, Melinda Shades. Taken somewhere in Central Texas.

Speaking of erasure, Georgia’s Mercer University recently destroyed a Black History mural. What does this mean? Lawyers and moral rights. Apparently, the mural depicted “Rosa Parks, black Civil War soldiers, 19th-century doctor Martin Delaney and Sam Oni, Mercer’s first black student.” The school refuses to comment. Axl was right, nothing lasts forever.

On the subject of personhood (or not), I promised I would point you to an answer as to how a body of water obtains personhood. Here it is. If you’re into dense, rigorous and worthwhile reading, here’s a great law review essay on property and personhood, by the formidable Janet Radin. On how corporations obtained personhood, here’s another phenomenal read I highly recommend, We the Corporations, by UCLA law prof, Adam Winkler.

How many of you are watching, or re-watching, The Walking Dead, and finding eerie similarities with our current condition? Do you also wonder where in the heck do they get toilet paper for so many people?

If you’re still thinking of donating a few bucks to an organization or venue in need, check out 2020Solidarity’s poster project. 2020Solidarity is a Between Bridges project aimed at helping cultural and music venues, community projects, independent spaces and publications that are existentially threatened by the current crisis. Over forty international artists come together to design one poster each, which can be offered on different crowdfunding sites as a reward for donations.

I leave you with Eddie Van Halen’s eruption. Cheers!

‘til next week,
-Sergio Munoz Sarmiento


Another mural destroyed?

Sweet, sweet Georgia.


Keep the INDUSTRY alive!

Donn Zaretsky argues that the relaxation on deaccessioning restrictions due to the Covid-19 pandemic should stay in place…permanently!

So when should it be acceptable for a museum to sell work? I don’t know. What’s the museum? What’s the work? Why is the museum selling it? What does the museum intend to do with the money? What are the alternatives to selling? What are the consequences of not selling? Then you take all the answers to those questions and you make the hard decision as to whether the sale is justified. That’s the way it always should have been. That’s the way it should be when the pandemic ends.


Inappropriate content, sampling, copyright and national emergencies…and pentagrams

April 26, 2020

“In some lost fold of the past, we wanted to be lions and we’re no more than castrated cats.” – Roberto Bolaño

Is free access to 1.4 million books fair use, or outright copyright infringement? Via the National Emergency Library anyone can access the archive freely via online format until at least June 20, 2020, or whenever the national emergency in the United States is declared over. Of course, some authors and publishers are not very happy about this. So, question for you while you sip your coffee: does a national emergency constitute fair use?

After last week’s missive, I received an email from a subscriber informing me that he was unsubscribing to my updates due to “inappropriate content.” Ay, Jesus (ß- read, ay heysoos; not ay, Geezuz). Was it my comment on Justice Ginsburg’s pants that did it? Was it the Iron Maiden album cover? Art? A keen reader will remember that last week’s missile referenced “goddamned” sensitivity in people, so, yes, sorry, like it or not nobody fucks with da Jesus!

On the subject of fragile egos, art critic Adrian Searle details how he feels about hurting feelings, in particular the fragile feelings of artists and even some from their families, as well as from well-known curators and museum directors, not to mention gallery people, collectors and private individuals.

From the Something Isn’t Right Here Files: Does it strike anybody as odd that so many art museums and institutions are furloughing hourly-rate employees but only decreasing salaried employees by 10 to 30%? Let’s think: zero of $15 an hour is zero, yet 30% of $1.2 million is, what, take home pay of $840,000 (not including perks)? I don’t know…, maybe Cindy was right: money changes everything?

Did you know: that Billy Squier is one of the most sampled rockers in hip-hop? Just listen to The Stroke, featuring the late and my favorite rock drummer, Bobby Chouinard. Chouinard’s quintessential 4/4 rock beat poignantly illustrates that flash and drum set size mean nothing if you ain’t rockin’. Listen also to The Big Beat intro—also featuring Chouinard on drums—and I think you’ll agree (and yes, it sounds better in stereo). As my good friend and drum teacher, Brannen Temple once said to me, “if the crowd ain’t movin’, you ain’t grooving.”

What’s the difference between sampling music and appropriating content for art? Some heavy law thoughts here. If you’re interested in what the hell constitutes plagiarism, here’s a great little book by one of my favorite legal scholars, Richard A. Posner, that will walk you through the differences between the ethics and law on copying, as well as the origins of plagiarism and its socio-cultural standing.

Back to the subject of drummers. Let’s talk this moment to remember and educate ourselves on two other drum greats: Chick Webb and Randy Castillo. For two-thirds of his life, Webb (you might remember) suffered from tuberculosis of the spine. After a doctor’s recommendation to take up drumming, young Webb, all but 11 years old, worked as a newspaper boy in order to save up enough cash to buy a set of drums. Webb did not let tuberculosis stop him, continuing to tour in order to help other struggling musicians make ends meet. Check out Webb’s interesting drum setup…unique indeed.

(Chick Webb)

Webb died at the ripe age of 34. Albuquerque, New Mexico native Randy Castillo is thought to be the first heavy metal drummer of Native American/Mexican descent to make the big stage, playing with the osmosatic Ozzy Ozbourne and Motley Crue. For a little energy, check out Castillo on this drum solo. Castillo passed away in March of 2002 of Squamous Cell Carcinoma at the also ripe age of 55. In 2012 Castillo’s name was chosen to adorn the performing arts center of his former high-school, West Mesa High. Some cool drum cats indeed.

(Randy Castillo)

Let’s get started. I do not miss sports at all. Which to some of you signifies that I have finally graduated from dragging my knuckles to walking upright. But seriously, at a time when cheating scandals abound in the sports arena and every sporting event, including college drafting, has become a money-making spectacle, the escape it used to be from the art industry ironically now reminds me of how similar the sports and arts industries are.

Earlier this month, ARTnews ran an article on “13 Notable Removals of Artwork.” While this list is appreciated, it also lacks at least two art projects by Swiss artist, Christoph Büchel. Certainly the decade-old fiasco initiated by the Massachusetts Museum of Contemporary Art against Büchel has to rank in the top 10, if not top 5. Some of you may be old enough to remember that Mass MoCA sued Büchel in federal court seeking a court order allowing the museum to exhibit Büchel’s project, “Training Ground for Democracy,” without his permission. In part, the lawsuit engendered a clusterfuck court order allowing Mass MoCA to make Büchel’s project available to the public. This court order was then rightly corrected by three federal judges who actually attended law school, holding in part that Mass MoCA may have infringed Büchel’s copyrights and moral rights.

And then there was Büchel’s project for the 56th Venice Biennale, THE MOSQUE: The First Mosque in the Historic City of Venice, which was shut down by police just two weeks after its opening. I’m curious is Büchel’s notoriety in the U.S. pos-Mass MoCA lawsuit played a role in his ouster from this notables list. Politics? Echoing Sheryl Crow’s sentiment from 1993, “I can’t cry anymore.

Mass MoCA covering art

Apparently Marina Abramovic is not a Satanist. I mean, who doesn’t like a pentagram or upside down cross over their couch. While on the subject of the infernal, check out “Broken Vows, by Pentagram for some old school metal. Like photo and squeegee paintings, some classic things never go out of style. Last but def not least: a beautiful film for those of you that emailed asking for some other visual recs, Yo La Peor de Todas (I, the worst of all) by Argentine filmmaker, Maria Luisa Bemberg.

‘til next week, and remember, I’ll be there for you!
-Sergio Munoz Sarmiento


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