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Interest-ing

By Intellectual Property Law, Esq.

Lee Rosenbaum seems mildly surprised that the Georgia O'Keeffe Museum has announced that it will not be appealing Judge Lyle's decision last week which left, at least for the time being, the Stieglitz Collection with Fisk University, but, as the chairman of the museum told Diverse magazine: "You don?t appeal when you have won. ... Our goal was to establish that Fisk was legally bound to follow the conditions (of the gift). And that has been done. As far as we are concerned, it?s a complete victory."

Meanwhile, Tennessean columnist Dwight Lewis is pleased with the Judge's focus on "the public interest." I'm still puzzled by this whole approach. I'm as in favor of the public interest as the next guy, but isn't it also in the public interest that Fisk be able to field NCAA athletic programs? Isn't it in the public interest to improve the chances of Fisk's very survival as an institution? And how exactly are we supposed to measure the effect of various states of affairs on the public interest? If Fisk keeps the entire Stieglitz Collection, but has to cancel its NCAA sports program and make who knows what other sacrifices as a result of its precarious financial condition -- what is that, like a "72" on the public interest scale? But if Fisk gets to keep 99 out of the 101 works in the collection (plus the right to exhibit one of the other two for four months every four years) but also ends up with $25 or 30 million to solve lots of its other problems -- is that a "70"? Or, what if it gets to share ownership of the collection with a new museum in, say, Arkansas, so that it winds up with $30 million in the bank and anyone who wants to see the works just has to time his visit for the right part of the year? What public-interest score does that get? In short, the "public interest" game gets pretty slippery pretty fast. It's easy to wave your magic wand and say "public interest" -- in an ideal world of course it would be best for Fisk to keep all of the works (at least for the people of the state of Tennessee; perhaps not so much for the people in Arkansas) -- but the question is always compared to what? It's not at all obvious to me that the current state of affairs is, on the whole, better than some of the alternatives that emerged during the course of the litigation.

Full post as published by The Art Law Blog on March 10, 2008 (boomark / email).