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Fisk Follies

By Intellectual Property Law, Esq.

Lee Rosenbaum has been following the latest developments in the Fisk-O'Keeffe saga. Apparently the Tennessee Attorney General has asked for a delay in the proceedings in order to allow time for further exploration of a new plan to keep the university's Stieglitz Collection in Nashville through some sort of partnership with the (not yet existing) Museum of African American Music, Art and Culture.

It's another weird twist in a weird case, and I think to a large extent it's an inevitable consequence of the Chancery Court's decision to frame the analysis as what's in the best intersts of the people of the State of Tennessee, and then tackle that question in a serial way. So the proposed deal between Fisk and the O'Keeffe Museum was rejected because the Crystal Bridges Museum had put a better offer on the table (though, as I've argued, it's not so clear that it is in fact better). And now the Crystal Bridges deal might be rejected because another "better" offer has come along, even if it's on behalf of a museum that doesn't yet exist. What if yet another offer emerges while approval of this latest offer is pending? And who gets to decide which of these in many ways incommensurable offers is the "best"? The Court? Or the Attorney General, as the representative of the people of the State of Tennessee? If the latter, why not remove the process from the courts entirely and let the Attorney General just solicit all bids by a certain date and then make a decision (after all, who cares what Fisk thinks, right?). Don't forget, too, that the O'Keeffe Museum still has a counterclaim that the entire Collection should revert to it as a result of Fisk's violation of the terms of the original bequest. Wouldn't a more rational procedure have been for the Court to decide that counterclaim first and then, if it was denied, either let Fisk exercise its discretion to decide which transaction to pursue (my preferred outcome) or, if a best-interests-of-the-people standard were deemed preferable, charge the Attorney General with coming up with a process to ensure that the standard is met to his satisfaction? Or would that make too much sense?

Full post as published by The Art Law Blog on February 04, 2008 (boomark / email).