Copyright Law

"The historically black school says if it can?t turn the art into $30 million cash, it may have to close its doors"

By Intellectual Property Law, Esq.

The Fisk trial is underway.

What I don't get is why people seem to feel that unless Fisk's condition is absolutely dire (as opposed to merely really really really bad), the Correct View of the case is to be opposed to the sale. I mean, whether or not Fisk is (as the AG suggests) "bluffing," there is no doubt that they can really use the money. (Fisk President Hazel O'Leary testified this afternoon that the school is $2 million in debt and "has no place to cut" and would need to double its annual fundraising rate "just to balance its budget.")

The deal they're trying to make inolves selling a 50% undivided interest in the collection to the Crystal Bridges Museum in Arkansas, with Fisk retaining the right to display the collection for six months out of every year.

So there's no concern about the work leaving the "public trust."

The $30 million would sure come in handy for Fisk.

And there is absolutely nothing wrong with two museums sharing certain works. That way, they can share the financial burden, and the art gets more visibility. (I think it's a pretty safe bet that many more people would see the work at Crystal Bridges each year than at Fisk.)

So what accounts for the view that Fisk is doing something wrong here? Well, it violates O'Keeffe's "intent"; she didn't want the works sold. As an initial matter, however, do we really know that? Presumably, she gave the collection to Fisk because she wanted to help them. If she knew of their financial difficulties today (even if they didn't rise to the level of imminent closure), are we really sure that she would oppose this collection-sharing arrangement?

But putting that aside, if it's good for Fisk, and it's good for the art (because they can take better care of it at the museum), and it's good for the public (because more people will have a chance to see the art if it's at two venues rather than one) . . . why would anyone be opposed to all of that in the name of "donor intent"? I understand why the donor cares about the donor's intent. But are there people out there who just go around making sure that other people's intentions are honored? Who can't sleep at night if the intent of some guy who died in New Zealand 50 years ago is violated in some way? Do they get equally worked up about violations of donors' intent in non-art contexts? It's an outrage, I tell you. His intent has been violated! This cannot stand!

If the donor's intent was that, after X number of years, the works should be destroyed one by one, would we condemn a museum that tried to save them?

I guess what I'm saying is: it wouldn't bother me too much if Fisk ends up with $30 million and Crystal Bridges gets to host the collection for six months out of the year.

Full post as published by The Art Law Blog on August 11, 2010 (boomark / email).