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"The Attorney General would like to correct that apparent miscommunication"

By Intellectual Property Law, Esq.

The Tennessee General has filed a Motion to Clarify the Court's latest ruling in the Fisk case. You can read the motion here. The subtext is: "Excuse me, Your Honor, am I crazy or did you just change your mind completely?"

As I explained last week, Judge Lyle ruled last month that, since O'Keeffe's intent in making the gift was to make the collection available to the people of Nashville and the South, the interests of Fisk were irrelevant, and she therefore invited the Attorney General to come up with a plan to keep the collection in Nashville.

She's now rejected that plan, ostensibly because it wasn't "permanent" enough (it provided for the works to go to Nashville's Frist Center for the Visual Arts, but left open the possibility of their return to Fisk in the event it some day gets its financial house in order), but it was clear from the opinion that the real reason for the decision was that she had changed her mind about the relevance of Fisk's interests: "It would not be in keeping ... with the donor's intent," she wrote, "to keep the Collection in Nashville at the cost of sacrificing the existence of Fisk."

The AG's current motion argues against the stated reason for the decision:

"The Court in its ruling earlier this week rejected the Attorney General's proposal as a 'short-term solution' and a 'temporary fix.' The Attorney General would like to correct that apparent miscommunication. There is nothing 'short-term' or 'temporary' about the plan. It provides an appropriately funded and structured mechanism to support the full-time display and maintenance of the Stieglitz Collection in Nashville into the indefinite future. The only 'temporary' element of the arrangement is the appropriate suggestion that Fisk University should be able to resume custody and display of the art when it has the financial ability to do so. This does not make the proposal a temporary fix; rather, it recognizes Fisk's historic connection with the art and allows the proposal to adhere even more closely to Ms. O'Keeffe's charitable intent."

(Lee Rosenbaum made a similar argument last week: "To my mind, the flaw in the court's logic is that the AG's plan WOULD keep the collection in Nashville full-time. The only thing temporary about the arrangement would be the artworks' sojourn at the Frist, which would display and maintain the collection until Fisk could resume custodianship.")

But, again, the real issue is that somewhere in between the decision asking the AG to submit his Nashville-only plan and the decision rejecting that plan, Judge Lyle seems to have become convinced that the interests of Fisk do matter. Once you grant that, then the AG's proposal -- which runs the risk of "sacrificing the existence of Fisk University" -- isn't going to be good enough, whether or not you see it as "temporary."

Full post as published by The Art Law Blog on September 20, 2010 (boomark / email).