Thursday, December 29, 2005

The Rightful Owners: Open Thread

More and more lately, works of art are at the center of battles over ownership. From the high-profile cases of art stolen by Nazis, to the growing scandals over antiquities in US museums, to the recent case in Hawaii, where artifacts borrowed from a local museum were buried rather than returned, who "owns" what has become a hot topic in art. It can be a complicated issue actually.

First and foremost, as a collector myself (one who's not independently wealthy and who does indeed make sacrifices to purchase the art I have), I want there to be safeguards to protect even my humble collection. In one sense, I see no difference between a burglar entering my home and stealing one of my prize pieces and some highly sophisticated system of greased palms and wink-wink-nudge-nudge curatorial "acquisition" practices. All the art world is unified in decrying the brazen theft of, oh say, a Edvard Munch painting, but somewhat on the fence about whether antiquities illegally taken out of the ancient world and installed in a US museum represent a similar crime. Why? Well...

It may be related to the (highly questionable, I'll admit) notion that no one actually "owns" a great work of art. Legally questionable or not, philosophically I feel one simply pays for the temporary privilege of being the caretaker of an artwork. And so, in that sense, we're not talking about the rightful "owners" as much as the rightful "guardians." Looking at it that way, though, tricky questions arise: If a guardian is clearly not qualified to care for a great work of art (i.e., doesn't have the budget to provide for needed restoration or to provide the ideal environmental conditions for the work), can the argument be made that other more qualified guardians should care for that work? (And here all kinds of parallels between unfit parents and custody battles spring to mind, but we're not actually talking about an impressionable human being, so I'd better perhaps steer away from that tangent.)

Still the question remains. If something is considered "priceless" and worthy of the world's best efforts for its preservation, how do we respond to someone who feels it's better off buried for cultural/spiritual reaons, for example? Or better off in in its native land, where it may end up in a warehouse, because they can't afford to exhibit it with the degree of care doing so requires? I don't want some committee entering my home and deciding my Picasso etching is better off in a museum because the temperature flucuates too much in my apartment, for example, but if I were some sort of idiot who announced plans to use it as a dartboard, then perhaps they'd have the moral standing to do so. "Is it mine to destroy?" is what the question boils down to.

More questions than answers, I know...Consider this an open thread.


Anonymous Henry said...

Is it mine to destroy?

As Rauschenberg said to De Kooning with an eraser in his hand: Yes.

12/29/2005 10:44:00 AM  
Blogger Edward_ said...

Didn't Bob ask for permission first though? As I recall Willem wasn't pleased, but did in the end agree.

12/29/2005 10:56:00 AM  
Blogger James W. Bailey said...

Dear Edward,

The game is called eminent domain.


eminent domain

n : the right of the state to take private property for public use; the Fifth Amendment that was added to the Constitution of the United States requires that just compensation be made

Here's how the eminent domain game is played:

At some point the U.S. Supreme Court will step inside somebody's home and say, "Hey, that 'extremely rare, magnificent and very valuable painting’ that you think you own that hangs over your washing machine in your laundry room does not in fact belong to you, it belongs to the 'public' to be enjoyed by the 'public' for the 'public good'.

After a lengthy court battle, in which you will loose, they will then authorize a federal U.S.Marshal to enter, by force if necessary, into your home and remove the painting to be placed in a "museum" approved by the court. Of course you'll be compensated for the "taking" of your "property".

Eventually, the painting that was taken from you will be sold at auction by the Supreme Court approved temporary depository museum to Alice K-Mart Walton to become part of the permanent collection of the Crystal Bridges Museum of Every Fucking American Art Painting Ever Painted To Which We Hold Legal Title.

Every piece of physical property in the United States of America has a legal owner by record of title. That owner might be an individual, a for profit corporation, a partnership, or even a not for profit 501(c)3 museum of art.

The question is, at least in this country, who gets to legally take title to the property you may think you own, by virtue of being the legal owner by record of title, against your will?


12/29/2005 11:06:00 AM  
Anonymous Mike Kelley ick ick ick! said...

I thought it was illegal to destroy artwork which you did not produce - in the State of California anyway.

12/29/2005 11:07:00 AM  
Blogger Edward_ said...

I thought it was illegal to destroy artwork which you did not produce

Is it? Interesting.

Love your moniker by the way.


Can you point to any links that detail such a case happening?

12/29/2005 11:24:00 AM  
Blogger Bill Gusky said...

I'd contend that not all Picassos are inestimably valuable art treasures. His Tomato Plant painting, the tiny spit-bite Bullfight etchings, assorted scribbles on napkins: these are grist for the collector. Guernica belongs to the ages, and IMO shouldn't be owned by any individual.

But this begs a greater question, doesn't it?: now that our cultural temples, the museums, have defiled themselves through Armani- and Pixar-like associations, MFA-style rentals to casinos, and laughably lax security, resulting in the loss of artworks of inestimable value -- where is the appropriate location for our greatest artworks?

If no place is truly safe or appropriate, then it's much harder to make a case that you or I shouldn't own Guernica.

12/29/2005 11:24:00 AM  
Anonymous Mike Kelley ick ick ick! said...


Yes it is. In NY also. It's called The Right of Integrity under a Moral Rights (droit moral) law that a few states adopted around 1990. I don't know how it would apply to the recent destruction of the murals at the LACMA garage (was that a Work for Hire, does anyone know?), but it is a law in a few states nonetheless in regards to "fine art" - where the term itself could also be debated.

12/29/2005 11:37:00 AM  
Blogger Edward_ said...

Thanks mkiii! (what you can learn on a blog!)

Interesting information (but apparently tough to use if you're not super rich):

To many, the Visual Artists Rights Act of 1990, VARA, requires that if an artist wishes to protect their right to prevent mutilation or alteration of the visual works or get credit for the creation of a piece of art, that artist must bring action in Federal Court as Federal law takes precedence over any state law that effects the same rights and obligations. A Federal action can be a very expensive proposition. Just ask any lawyer.

In actuality, there are certain state's law that probably still apply to the rights of visual artists, especially if you live, or can file your legal action, in the states of California or New York.

VARA limits its protection to unique, visual works of "fine" art. What this means, basically, is that the work of many artists who create works of graphic design, works for trade or commercial purposes or for reproduction or which are simply not considered "fine" art, will not be given any protection by this federal law. Further, California provides that a creator of fine art can collect royalties from profits made on subsequent sales of said fine art. VARA does not give this right.

New York and California protect the creator's right to reserve ownership of original artwork which meets the broader definition of "any work of visual or graphic art of any media including, but not limited to, a painting, drawing, sculpture, craft, photograph or film." New York also protects reproduction rights in the more broadly defined artwork.

There are other rights that the laws of various states protect that are not included in VARA. A very important right is the right to have a relationship between the artist and a gallery, agent or other company declared a consignment arrangement in the absence of an agreement to the contrary. This provides that artist with considerable protection in the event the artwork disappears or the gallery, or agent, refuses to pay the artist after the sale.

12/29/2005 11:46:00 AM  
Blogger James W. Bailey said...

Dear Edward,

I'm going to see if I can find something online concerning a rather infamous case in New Orleans regarding the outsider artist, Mike Frolich.

I own several of Frolich's works. For years he managed a laundry in the French Quarter near St. Ann Street. The place was filled with his paintings. Mr. Frolich was eventually placed in a nursing home by his family - against his will.

The works of art that he owned became subject to a bitter lawsuit. Mr. Frolich claimed that he gave title to the paintings to his employer, the owner of the laundry. Mr. Frolich's family disputed that and alleged that Mike was incompetent to make that gift.

The Louisiana Supreme Court eventually ruled that the paintings be divided between the family and Mr. Frolich's former employer.

I saw Mr. Frolich at the nursing home where he lived about six months after the legal decision came down - he was bitter as hell. I'll never forget his words to me: "They're my goddamn paintings and I can do whatever the hell I want with them."

Mr. Frolich is perhaps best known for his apocalyptic paintings and drawings that cover the walls and ceilings in the Saturn Bar on St. Claude Avenue in New Orleans. These works have never been in dispute. The owner of the Saturn Bar has always maintained that, per Mr. Frolich's request, he will never sell them. I was unable to visit the Saturn Bar on my last trip to New Orleans and have no idea what condition these works are in, or if they even survived Katrina. The Saturn Bar is, of course, located in the Lower Ninth Ward of the city, an area that sustained most of the flood damage.

I'll provide links if I can find some. I also have copies of the Times-Picayune newspapers articles about the case and his work. The whole episode convinced me to place all my personal art work, as well as all the works by other artists that I purchased over the many years, into my will.


12/29/2005 11:48:00 AM  
Blogger Edward_ said...

I'd contend that not all Picassos are inestimably valuable art treasures.

Depends on who you ask...a critic or the person who owns and loves it. ;-)

12/29/2005 11:49:00 AM  
Anonymous Henry said...

I think the story goes that Bill agreed to provide Bob a drawing to be erased, but spit in the drink by choosing a heavily-incised piece, grumbling, "I know what you're doing." (Kids today!)

I didn't realize there were "moral rights" laws out there, and I won't argue their wisdom, but I will say I question whether anything is so valuable that it deserves immortality. Everything has a price (some think Seurat's Grande Jatte could be the first painting valued with a B, were it saleable), and unfortunately everything in the world can count on nothing better than an ultimately human entity to be responsible for its welfare. That's life.

But Britain has a type of "eminent domain" for art objects, giving the government the right to attempt to buy any work it deems important to British history. I don't know the details, but I do know there was a failed attempt to keep a work in Britain recently.

12/29/2005 11:50:00 AM  
Anonymous Mike Kelley ick ick ick! said...

Maybe it would be costly to inforce your rights as an artist if it goes to court, but you can help your case by using a contract when you sell your work in the first place. Part of copyright actually requires you to inforce your rights in these ways. Kind of like policing your work that's floating about and making sure everything is kept kosher. Coporations do it all the time, sending Cease and Desist letters out when their name is being used without permission etc.

12/29/2005 11:59:00 AM  
Blogger James W. Bailey said...

Dear Mr. Kelley,

You make a very good point. I have template sales and purchase contracts that I use for all my art aquisitions and sales, including the sales of my photographs. Everything is spelled out and conforms to current copyright law.

In Mr. Frolich's case, he did in fact have a written agreement in place tranferring title to his works (by gift) to his former employer. The contention in the lawsuit filed by his heirs was whether or not he was competent at the time to have signed that gift document. What immensely complicated matters in Mr. Frolich's case is that Louisiana operated at the time under the so-called "forced heirship" provisions that were derived from the state's Napoleanic Code. The forced heirship provisions in Louisiana have been greatly relaxed during the years following this case. Once upon a time in the state, one had very little to say about where one's property went when one died. The joke used to be that if you own anything of value, don't ever live in, get married in or die in the state of Louisiana!

And as we have long said in New Orleans, the law is whatever a $75 court filing fee and your lawyer says it is! It's a sad reality, but the truth of the matter is that in certain legal venues (Louisiana and Mississippi for sure) if you are dragged into court and forced to legally defend your right to your property, you will very likely lose unless you can afford to hire a legal gun that will go the distance. In Mr. Frolich's case, he could not afford to do so.


12/29/2005 12:27:00 PM  
Anonymous Mike Kelley ick ick ick! said...

That really is unfortunate, James. It's really unfair. The art world at large is mostly unfair, but especially and specifically to the southern-based outsider artists (the true outsiders). There have been so many similar cases like the one you've written about here. It makes me angry. It makes me dislike Mike Kelley even more (just for kicks) and it hopefully will make others angry enough to make a change in the way some of the southern states operate in terms of artwork and artists, especially since it is those artists who have influenced and haunted the mainstream studios more than all the recent academia art stars combined (not to bring in another recent thread from this blog) but I think you get what I mean.

12/29/2005 12:41:00 PM  
Blogger Tim said...

The sculptor Nancy Rubins did a major installation for the oddball collector David Bermant (since deceased) at one of his malls near Chicago early in her career(1975?) It was a monstrous pile of consumer junk in the form of a huge roadsign (Big Billbored). It caused some consternation in the neighborhood but eventually became part of the landscape.

Years later Nancy was contacted by Bermant looking for permission to 'de-install' the work. Their agreement had stipulated permanence so Nancy refused to agree and contacted her lawyer. (she doesn't take s**t from anyone) Bermant pleaded and cajoled and finally got Nancy to agree that a vote by the local public would settle the matter. It was an old ugly pile of birdpoop covered junk by this point and Bermant thought he had it wired.

Surprise! The public voted to keep it. There had always been some complaints, but the silent majority apparently liked it. Nancy was ecstatic. Bermant relented and even had the thing power-washed and 'restored.'

About a year later Nancy got a note from Bermant that she would be receiving a shipment of the leftovers of the de-install. Several big containers of stuff arrived and Nancy reluctantly accepted that Big Billbored was no more. There may have been some settlement, Bermant loved art and artists afterall (but his real estate even more).

Nancy bounced back by using the left overs to create an installation at the Brooklyn Bridge Anchorage that turned out to be a breakthrough piece for her. A work dedicated to her recently departed friend John who was taken by Aids in his prime. It was a piece that provoked goose bumps for this devotee.

Lessons? not sure except to reinforce the idea that there is no failure where there is a good recovery.

I should allow that my recollection may be somewhat dim in the specifics. I don't want to invoke the rath of NR.

12/29/2005 02:54:00 PM  
Blogger James W. Bailey said...

To All,

I'm always amazed when a Hoodoo type thing occurs - and tonight is such a night.

I received an email from a wonderful friend in New Orleans who follows Edward's blog. She sent me a link to the following article that was published this afternoon: -

O'Neil Broyard, owner of Saturn Bar, dies

According to a report from the Southern Foodways Alliance, O'Neil Broyard, the wonderfully eccentric owner of New Orleans' well-known Saturn Bar, passed away on Thursday, December 22nd.

The following posted on the SFA website on Friday, December 23:

"The SFA heard from O'Neil's nephew, Eric Broyard, who said that O'Neil's heart just gave out. Last we knew anything about O'Neil, he made it through Hurricane Katrina and was in the process of cleaning up his beloved Saturn. He will be missed, and our condolences go out to all of his friends and family--at home and at the bar. O'Neil's family is in the process of organizing a gathering to be held in his honor at the Saturn Bar sometime in the New Year. We'll be sure to post more details as they are available."

To read the SFA interview with Broyard, which is part of the Bartenders of New Orleans oral history project, click here.


For those who might be interested, here's the link to the above referenced interview with Mr. Broyard -

The interview also has exterior and interior images of the world famous Saturn Bar, including photographs of Mr. Frolich's work.

Mr. Broyard was one of the last of the original New Orleans Saints.

I hope that somehow these important art works that grace the walls and ceiling of this New Orleans cultural institution can be preserved and shared for all to see.

It's truly another sad night in New Orleans.


12/29/2005 07:49:00 PM  
Blogger Art Soldier said...

Just wanted to add some useless information to the de Kooning story...

According to the recent biography -- the story goes that dK gave the drawing to RR realizing the he was going to erase it. What really pissed him off was that RR decided to exhibit the thing as his own work of art (after erasing it). Apparently dK thought that RR was just going to keep it for himself.

12/29/2005 08:47:00 PM  
Anonymous Heather Lowe said...

What about the demolition of the Samuel and Luella Maslon House?:
The house in Rancho Mirage, California was designed in 1962 by Richard Neutra.
New owners, Mr. and Mrs. Richard J. Rotenberg of Hopkins, Minnesota, had purchased the property for $2.45 million. They had the building destroyed within 30 days of taking possession.

12/29/2005 08:58:00 PM  
Blogger Edward_ said...

sorry to hear about O'Neil, James...may he rest in Cajun bliss.

12/29/2005 09:13:00 PM  
Anonymous Heather Lowe said...

I realize this thread is worn and many will not see it now. Nevertheless, I wanted to mention that if you would like to save a masterpiece from being destroyed, sign this petition:

12/30/2005 12:47:00 PM  
Blogger Jackmormon said...

As Heather above said, this thread is probably well worn. Still.

The idea of who deserves to own a piece of art has a particular resonance to me these days. My grandfather in the Yukon died about two years ago, and we're still coping with what his estate really means. He and his family (he was a tremendous hoarder) bought, bartered, found, and otherwise acquired many rather important artefacts of local history. His estate included antique native objects (copper axes, beadwork, basketry) and unique old-time photographs.

His greatest fear, during his old age, was that these pieces would be seized by the central Canadian government, to languish in some "ethnic art" basement drawer. The way he talked about his pieces, I assumed he'd kept them all hidden; as it turns out, according to my father, everything of any importance had been catalogued by the appropriate authorities.

These days, most of the native stuff has stayed up north with my father's brother, as they try to figure out what should be done with it. Some of the better twentieth-c art left the country with my father. I got a couple of lovely ca. 1900 Southern Yukon tribal baskets, which I'm trying to keep out of the light (right now they've got ribbons in one and dried flowers in the other).

But who should own this stuff? What claim does the public have on it? My grandmother was loath simply to give money to native people, but she paid very very generously for beadworked moccasons, some of which now might have anthropological value. Is her claim of ownership less now that the culture that sold those moccasons mostly gone?

(I do think that these matters can become far more complicated once the ambiguities of colonization become relevant.)

1/02/2006 12:48:00 AM  
Blogger specot9332 said...

Mike Frolich was my Godfather. I didn't know him well because I was very young when he became ill from a diving accident. My mother adored him. I remember vising him at different facilities when I was younger. He was my hero. I have a painting by him, the only one, I believe, where he actually painted Mary and the baby Jesus. He wrote a note to my mother on the back of it. The last time I saw him, he was at a nursing home in Arabi. Does anyone know where he is? My mother passed away right after Katrina and so I feel I have lost him as well.

11/26/2008 12:35:00 PM  
Anonymous Andrea Garland said...

A large Mike Frolich mural was recently uncovered on the back wall during renovations of the new Yellow Moon Bar (used to be Sugar Park, Leos and many other places over the years). The bar is located at 4129 Dauphine (corner of France)... if you are interested in his art, come check out the mural. The bar is open 7am - 2am (and often later) daily.

5/07/2009 03:00:00 PM  

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