Sunday, June 7, 2020

Does a national emergency constitute fair use?

That’s for the courts to decide if they are ever faced with the question. Copyright law is designed to support authors, but it is also designed to promote the free flow of information and ideas. This question could go both ways. But to be honest, I doubt anyone is going to bring a lawsuit against the Internet Archive[.]

I’m not so sure.


More art law, vintage cheese, art market joy, Justice Ginsburg’s pants, Instagram, and litigation (to come)

If you want to make God laugh, tell him your plans. – Amores Perros (2001)

Fashion stops for no one (online ad from week of April 13, 2020).

First, the good news: The Brooklyn Rail has a wonderful interview with the great Imi Knoebel (go straight to page 42). Definitely worth the read. This past week also marked 19 years since Joey Ramone’s death, and, happily, it also marked 40 years since Iron Maiden and Judas Priest blessed us with two seminal releases: Maiden’s eponymous release and Priest’s British Steel. Rumors continue that these two titans will tour together post-Corona. If we could be so lucky! Now look at these two covers: art in a nutshell

Let’s start with news form the The Artmarket Just Got Hotter files. The AAMD (Association of Art Museum Directors) has blessed art institutions with the ethical right—for two years—to sell off artworks in order to cover general expenses. As I said on my blog, this will make auction houses and the Big 4 galleries very, very happy (along with some collectors). I can imagine competion heating up as we speak over who can sell of the Met’s Egyptian collection, or MoMA’s Pollocks, Warhols, and Judds. Will museums change their collection titles from “Permanent Collection” to “Permanent Collection*”? What exactly are “general expenses” in the time of ‘Rona and post-Rona is to be seen—or litigated (of which I mention more below).

A question: Why.Is.Everyone.So.Sensitive? After posting last week’s musings—containing in part my rant on art schools—I received quite a few emails attempting to make arguments on behalf of art schools and the art industry. Listen. Listen. I was not saying that art schools or art departments should all shut down or that they are all inherently useless and culturally bankrupt. I love art. What I was asking is a series of questions every potential art student, chair and dean should ask on a daily basis: Why art? What is my/our understanding of art and it’s role in a social fabric? Can my notion of art be taught? And is the undergrad/grad school system and art residencies currently in place the only way to disseminate this knowledge and questions?

As some of you know, I attended CalArts for my MFA from 1995 to 1997. It was the most magical and special time in my life. I would do it again and again without hesitation. The faculty, my peers, the courses, the facilities, the other departments, all were more than I could have imagined. It’s a libertarian artist’s dream! But CalArts is an art school that although may have bureaucratic snags, faces nowhere near the obstacles Ivy Leagues schools and other prestigious art departments face. CalArts at that time was predicated on the student finding her/his own way. Some, like me, thrived in this environment. Others hated it. They wanted more hand-holding and less competition. I practically lived at CalArts during those two years and cannot remember one time that I wish I was not there. But I had a diverse group of faculty to learn from, and not just in the art school. My conversations with Robert Blanchon and Alexis Smith, not to mention Michael Asher, Alan Sekula, Charles Gaines, and Tom Lawson, I recall to this day. I often remember my long conversations with Mitchell Syrop: they were about art, language, images, the Santa Clarita landscape, Disneymouse, David Mamet. Conversations held in his adjunct office, my studio, over coffee or over beer. How I miss those days.

Look, I’m not anti-art schools as much as I’m anti-laziness. I never said that being like Charles Bukowski was better than vacationing with the Hausers and Wirths. Just make up your mind and don’t ask one industry to do it all. It’s odd that the one cultural practice that prides itself on breeding Duchamp, Pasolini and performance art is the same cultural practice that is now so comfortable and imbedded in its own skin. If anything, some of the comments I received fully sediment my thoughts on the SF Art Institute. If keeping the status quo is your strongest defense, then you have just given me my stronger offense. In the words of Irene Cara, “take your dreams, and make them happen.”

On to law. Mark my words: this Rona thing is going to elicit a slew of litigation globally and in every industry (health, insurance, manufacturing, transportation, rock concerts…). The art industry won’t be spared. For starters, think of how much the art industry has changed in the last 15 years. When I started my art law blog,, the only other art law blog out there was Donn Zaretsky’s (which he started months before mine). Today, Artnet, The Art Newspaper, Artsy, all have “art law columns” or consistent art law articles. Art law is now taught in law schools, it’s (to my chagrin) an art practice, and there is even The Art & Law Program, an art and law think-tank (mine). It shouldn’t be a surprise that with the advent of the internet and role of money in the art industry the world of visual art has become more litigious and dependent on lawyers. Think rent and lease payments: gallery, storage and studio); employment benefits; loan defaults; non-delivery of services or products; cancelled art commissions; cancelled art transactions; damaged art; and of course the continuation of intellectual property disputes. Hopefully, and in order to avoid costly and needless litigation, parties will opt to settle their differences in the most cost-effective and commonsensical manner, as well as for the sake of art.

While we’re on the subject of the legal profession, a question for you: will Justice Ginsburg be wearing pants? Legal eagle says that the U.S. Supreme Court will be hearing, for the first time in history, oral arguments in pending cases this May via teleconferencing. All audio of the teleconference hearings will be released through a network pool, and thus immediately available to the public on media platforms. I’m not a fan of cameras in the Supreme Court, but making these arguments available to the public via audio can certainly be used by home-schoolers to educate their children—and spouses—on the nature and apparatus of law.

Speaking of lawsuits, if you’re into videogaming and trademarks, you’ll be happy to know that video game maker Activision recently triumphed in a lawsuit against AM General, arguing that the depiction of Hummer vehicles in its video games was protected by the First Amendment.

On the other hand, if you’re posting images on Instagram and you care two cents about your copyrights, you may want to read Instagram’s Terms of Use. An opinion last week from New York Federal Judge Kimba Wood holds that by uploading an image to Instagram and designating it as “public,” you grant Instagram “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content,” which allows Instagram to allow another website, such as Mashable, as Instagram’s sublicensee, the right to embed you image in its website. One question of import is whether this also allows Instagram the right to sublicense to any other appropriators, such as non-internet users. More on this as it develops.

(Image courtesy of 1209 Garage. Copyright 2020 1209 Garage. All rights reserved.)

I leave you with some good news. Mega-corporation Land O’Lakes has decided to remove the image of a Native American woman from its packaging, leaving the landscape uncontaminated by humans or negative stereotypical references (very Corona-like, don’t you think?). Land O’ President and CEO Beth Ford said that as the cooperative, founded in 1921, looked forward to its 100th anniversary it needed packaging that reflects the foundation and heart of the company’s culture. And $14 billion in yearly sales.

If you’re looking for unique historical content, check out The Felix Gonzalez-Torres Family Archive, via its website and Instagram account (FYI: I’m an advisor to the Archive). For a good film, try The Killing of a Sacred Deer, by Yorgos Lanthimos. I can guarantee you won’t think of moral philosophy problems the same. For a book, try Vernon Subutex, by Virginie Despentes. Last but not least, for some heavy old school groovy tunes, how about The Police’s stunning 1981 release, Ghost in the Machine.

Happy and healthy week.
-Sergio Munoz Sarmiento


Deaccessioning in the time of Corona

Not surprisingly, the AAMD has just stated that given the Coronavirus and it’s devastating financial proginy, they’re ok with museums selling off artworks and using those proceeds for “operating expenses.”

Donn Zaretsky, long time champion of deaccessioning, says never-say-never: “It never made any sense to say there were no possible circumstances in which selling art to generate operating funds could be justified. The pandemic is a very obvious example of such a circumstance, but clearly not the only one. The right approach should always be ‘to weigh the actual costs and actual benefits and try to determine whether, on balance, all things considered, the [proposed] sale is a good idea.'”

Which makes sense. Why is this pandemic and the financial mess it is creating a good reason to lift deaccessioning and restricted fund guidelines? What if a year from now there’s a pandemic 10 times as bad? What if some other natural or man-made catastrophe sidelines only museum educational programming, including teacher payrolls? Is that a good reason to lift these guidelines?

My more controversial side says that this whole deaccesioning in the time of the pandemic is really just hogwash. I mean, seriously, who cares what the AAMD thinks? At this point art institutions (museums, etc.) are so entrenched in the art stock market–which is to say, commercial viability–that the notion of a “public good” has become nothing but academic and journalistic fodder.

Regardless, if some cultural institutions decide to deaccession, I’m curious which institutions will sell artworks, and which artworks they’ll sell (I have my hunches). One thing’s for sure: auction houses will be happy with the news, and certain collectors as well. Happy bidding!


Land O’Lakes removes image of Native American woman

Known as Mia, the woman was shown sitting in a serene landscape of lakes and woods. That landscape remains on the Minnesota cooperative’s packaging, but Mia is nowhere to be found. On some packaging she is replaced by photos of Land O’Lakes member farmers.

More here.


Videogamer has First Amendment right to depict military equipment

A New York judge has ruled that publisher Activision isn’t infringing AM General’s trademark by featuring Humvees in its Call of Duty series. The decision, handed down a few weeks ago, is a mark in favor of game developers depicting actual military equipment to create a sense of realism.

More here.


Notable removals and censorships of artworks…plus a couple more

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 the artist’s permission. In part, the lawsuit engendered a court order banning Mass MoCA from making Büchel’s project available to the public.

And then of course 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.

Any others?


Art law scams, screw-ups, what are art schools good for, and manifestos (Updated)

New seasons of Ozark and Money Heist are back on Netflix. That’s prob the most important and exciting thing to happen since Judd’s wooden boxes (sorry, objects).

Hope you all are hanging in there during these “unprecedented” times (probably the most overused word of the 21st Century). To help you waste time in a somewhat intelligent manner, what follows is a recap of recent art law news.

Let’s start with…Pay.Your.Taxes. All of them. Just ask Christie’s what happens if you “forget” to pay sales tax. Something like $16 million out of your pocket will be the answer. During these times when not too many Benjamins are circulating, might be a good idea to play everything smart and maybe a little “conservative”?

Then there are some art schools, RISD, Yale, Columbia, NYU, that are pretty much telling their students to get lost when it comes to thesis shows, tuition, studios, and seminars. Seems like these schools strongly think their students are still getting the bulk of their education, even if they can’t actually use the welder, computers, or access libraries and studios. But what exactly are these students “getting,” or better yet, what do these students “think” they’re getting in exchange for $50K plus? Might be a good wake-up call to all of these aspiring artists that there are other art schools in the U.S., not to mention the world, where you may actually learn more than how to mis-read Walter Benjamin, re-re-re-read 1960s critical theory, and sit around in a circle jerk piping off about how amazing Judith Butler’s essay from 1984 is. Cynicism and sarcasm aside, seriously, why do people enroll in “art schools” these days? Please do let me know; prove me wrong!

Speaking of art schools, here’s one that looks like they’ve had enough. After 150+ years the San Francisco Art Institute is ready to shut its door. I’m gonna get shit for this, but I think it’s a good idea. I’ve said quite a few times recently that there are too many art schools, artists, art lawyers, advisors, art teachers, art galleries, residencies, museums, foundations, exhibitions and everything art. Add to the mix the fact that many of these are of very little quality and you have the perfect concoction for closures or 2nd and 3rd careers (or law degrees given the number of emails I get from prospective “art lawyers.”).

I mean, let’s be honest, why would any sane individual who just wants to be creative think that spending tens, if not hundreds, of thousands of dollars on an ART degree would be a good idea, especially at this juncture in time? What exactly do these kids think they will learn? What exactly will be taught? And more importantly, who will be doing the teaching? At some point aspiring artists need to decide whether they want to be Charles Bukowski or vacation with the Hausers and Wirths. Seems like just one big circle-jerk.

UPDATE (April 12, 2020, 11:20am CST): I’ve received a few emails asking about my own experience at CalArts. As some of you may know, I attended CalArts for my MFA from 1995 to 1997. Let me be clear: it was the most magical and special time in my life. I would do it again and again without hesitation. The faculty, my peers, the courses, the facilities, the other schools, all were more than I could have hoped for. It’s a libertarian artist’s dream! But CalArts is an art school that although may have bureaucratic snags, faces nowhere near the obstacles Ivy Leagues schools and other prestigious art departments face.

Dave Steiner doesn’t jerk around when he details a very unique perspective on the somewhat recent $6 million 5Poinz decision, where the Second Circuit held that a work is of recognized stature when it is of “high quality, status, or caliber that has been acknowledged as such by a relevant community,” that is, “art historians, art critics, museum curators, gallerists, prominent artists, and other experts.”

First, Steiner’s essay is excellent because it highlights, to a cynic like me, that courts of law basically play with language and the law in order to arrive at the simplistic, redundant and conservative answer that “everything is art” and thus, given art history, “all art is special.” Just look at Judge Parker’s apology for using Monet in a manner that some thought was insulting. Jesus, will someone please grow a pair! Given Parker’s “Monet apology,” I don’t think judges want to get into the “this is recognized art” and “this is not-recognized art” business. “It might be ‘art’ in some eyes, but to us it’s a piece of shit and thus not worthy of moral rights protection.” I can’t imagine any federal judge taking that position in writing. I wish they would, but they won’t. Everyone wants to be thought of as “cultured” and protective of “art” and its sanctity, even federal judges.

Steiner’s question on how the developer/defendant in this case could have rebutted the plaintiff’s argument that 5Pointz was NOT a work of recognized stature is exquisite. How would the defendant’s rebut “recognized stature”? Let me tell you that I cannot find one, not one, person in the art industry that is willing to state that “something” is not art. Good luck defendants.

If you’ve been living under a rock or are so artworld clueless as to have missed the Inigo Philbrick-Kenny Schachter drama, this is the time to catch up. You’ll probably wonder, as does yours truly, how a seasoned art dealer like Schachter got played for a million like a tourist in Times Square. I can’t help but read Schachter’s articles as confessions of his victim hood. After all, these days, everyone’s a victim.

Conversely, Jerry Saltz penned a heart-felt letter to the art world—my art industry—and to be honest he’s much, much, much more optimistic and romantic than I am.

Saltz: “We all want to go the distance for what we love. That distance has begun. Things are bleak, but batons will be and are already being passed to generations who will emerge on the other side of this who will have the brilliant chance to build a whole new art world.”

I’m not sure what universe Saltz inhabits, but it certainly isn’t mine. I do, however, like the somewhat Darwinian aspect that this Coronavirus symptom brings onto the art industry, but heed my words that the art industry, will only get stronger, richer and more exclusive, and with luck we will lose a good 80% of artists, galleries, dealers, art lawyers, and other non-essentials I listed above (by lose I mean they’ll move on to Zoom Pilates start-ups or running for president). The interesting question for me, a die-hard punk-metal romantic, is: What will the other 15% do?

Lastly, and certainly more importantly, here is my art and law manifesto. Enjoy!

-Sergio Munoz Sarmiento


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