The Wall Street Journal has an update on a proposed bill in the Senate (Schumer – NY) to revive tax incentives for fractional gifting of art to museums.  Read the article here.  Senator Schumer’s proposed bill can be read here. 

Stay tuned.

A related note:  Earlier in the year, Senator Schumer introduced a bill to permit deductions for works of art donated to charities – if (among other requirements) you can get an appraisal.   This bill was introduced in February and sent to committee.  Until (or if) it’s heard from again, you can read this bill here.

Would you accept a stolen Van Gogh as a gift?  Of course not.

What if the work wasn’t so much "stolen," as it was "nationalized" for the good of the homeland?  To help fund stimulus grants, say the work was sold twenty years later to an old college friend of yours, and thirty years after that your college friend gave it to your son or daughter as a graduation gift.  Should your child accept? 

What if your child is the President of Yale University at the time? 

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On the week’s eve before Chicago’s Art Institute christens its new modern art wing, some thoughts on Chicago art located (or which used to be located) outdoors.  Throughout the 80′s and 90′s, Chapman Kelley’s meticulous display of native wildflowers graced Chicago’s Grant Park.  In 2004 they were "mutilated" or reconfigured – depending on your perspective.  Kelley’s recent (April 13, 2009) Brief before the 7th Circuit Court of Appeals of the matter at hand can be found here.

Over at The Art Law Blog, not to be confused with our blog on Artlawteam.com, the Kelley Brief reignited some exhaustion over the September 2008 decision concerning Kelley’s Wildflower Works.  In the September 2008 decision, Kelley’s works were denied protection under the Visual Artists Rights Act (VARA) under the notion, among other considerations of "originality,"  that precedent excluded so-called "site specific" works (works which are built specifically for the place where they are located, not meant to be transplanted - pardon the pun – anywhere else) from VARA’s reach.

While there is much to be written and waxed upon concerning what should and what should not be covered or protected by VARA (which the Kelley Brief does in spades and the Art Law Blog seems to do well here and here), perhaps the real consideration when advising clients should be "Can we get it in writing?" 

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By JP Benitez, Attorney at Law

Last time on Fairey vs. the Associated Press: Shepard Fairey, an artist, went to court to declare his use of a news photograph of Obama at a press conference in making his now-infamous "Hope" poster was a fair use under the Copyright laws of the United States. The Associated Press (the owner of the copyright in the photo) counterclaimed that Fairey’s use constituted an infringement of their rights in the photo.

The LA Times culture blog links to a story covering more Shepard Fairey and his Obama poster legal antics. This time, Mr. Fairey pointed the finger back at the Associated Press suggesting that the AP’s use of his "Hope" poster image without obtaining his permission was inappropriate. One of Fairey’s affirmative defenses to the AP’s counterclaim (filed 4/14/09, page 29) notes:

"The doctrine of unclean hands and basic principles of equity prohibit The AP from contending that Counterclaim Defendants’ Obama Works infringe The AP’s copyrights when The AP itself exploits the copyrighted work of Fairey and other artists without permission and in a manner that is far less transformative than the Obama Works …"

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By John Paul Benitez, Esq.

The New York Times reports on New York’s Museum of Modern Art’s (affectionately MoMA) plan to unveil its newly designed Web site after five years of an adherence to the classics. Like its name, MoMA is moving into the modern way of doing things online – and that is the interactive way. 

Too bring a bit of heresy, and a lot of hypocrisy, onto the Art Law Team’s blog, can I suggest MoMA might want to re-think rushing into embracing the Web 2.0 philosophy?**

The Times reports "[t]he site, which … MoMA officials stress is a work in progress, will now include what its designers call a ‘social bar’ at the bottom, which when clicked will expand to show images and other information that users can ‘collect’ and share after registering for a free account at the Web site (www.moma.org);" and "for the last two years MoMA has been branching out energetically elsewhere on the Web, creating a YouTube channel, a Facebook page, a Twitter feed (something the Metropolitan Museum of Art and many other museums also maintain) and a Flickr group, where museum visitors can upload their pictures, some of which will end up on the museum’s Web pages … Museum visitors with cell phones will be able to text the number associated with an artwork to an area on the museum’s Web site."

So where’s the issue?

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By John Paul Benitez, Attorney at Law

The San Fransico Gate has some reservations anointing as "art" scientific imagery created for the lab, not the studio. Displayed in "Brought to Light: Photography and the Invisible, 1840-1900" at the San Francisco Museum of Modern Art, photographs created using x-rays and advances in photo chemistry are serving double duty as lessons in art (not scientific) history. VARA which apply to photographs (as "works of visual art") be of any use – since the images were not "created for exhibition purposes only."

Does copyright law think any different?

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By John Paul Benitez, Attorney at Law

Collaborating with another artist may generate a masterpiece, and it may also produce a mess. When more than one artist is an "author" of a work, the normal expectations about ownership and copyright get skewed. If two or more people create works, intending to put them together in a single cohesive work, the resulting collaborative piece is a "joint work."

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By John Paul Benitez, Attorney at Law

She can’t vote, can’t drive and can’t drink. But she can work a slow shutter like a pro.

The Seattle Post-Intelligencer reports on an exploding star in Chrissie White – 15 year-old photographer who has developed world-wide acclaim for her Flickr photostream. Right now she commands $40 for an 8 X 8 inch print (hey, when you’re a suburban Seattle teenager, that’ll buy quite a few lattes).

Don’t count on booking her at a discount just yet though. As a minor, common law in most states would allow her to rescind any contract she enters into now before turning eighteen (or at least a reasonable amount of time afterwards). You might wait before getting an exclusive merchandise or content licensing deal with Miss White for a few more years.

By John Paul Benitez, Attorney at Law

The Art Newspaper breaks this story. While not an earth shattering revelation, the clipping at least helps keep an important concept in the collective conscience of the art community: armed negotiating for your best interests isn’t a strategy exclusive to the suit-and-tie set. The rules of engagement apply whether your product is oil on canvas or oil in an SUV.

By John Paul Benitez, Attorney at Law

This just in: Artists want to own the work they produce, get a better deal from galleries, retain production control, pass money through their own companies, avoid exclusivity and might need the help of accountants and lawyers in their global dealings.

Are the redundancies produced by this recession hitting the news holes too?