Friday, March 25, 2011

Volunteer Lawyers for the Arts New York files amicus brief in Visual Artist's Rights Act case: Chapman Kelley v CPD

Amicus brief champions an artist's perspective; primes 7th Circuit Court Appeals justices as they prepare to cast votes on whether or not to rehear the case "en banc"

         On March 22, 2011the appeals process surged forward via an arts-friendly court filing.

        In the wake of the adverse appellate decision regarding Kelley's Chicago Wildflower Works--handed down by the Seventh Circuit Court of Appeals on February 15, 2011--savvy arts professionals realized a far reaching anti-artists' rights precedent had been established. 

        Keenly aware of the long term negative effect the precedent would have on the U.S. art world, especially impacting painters and sculptors, on March 22, 2011 the nonprofit Volunteer Lawyers for the Arts - New York, filed its amicus "friend of the court" brief.  The team who authored VLANY's amicus brief are: Sergio Muñoz Sarmiento, Dena Bouchard and Anna Kadyshevich.         
          VLANY, as advocate for the arts community, recently represented Swiss artist Christoph Büchel in the Visual Artist's Rights Act dispute Massachusetts Museum of Contemporary Art v Christoph Büchel.  In the Art & Design section of the New York Times, Randy Kennedy wrote about the case on January 28, 2010, "[Visual] Artists Rights Act Applies in Dispute, Court Rules."  VLANY was successful in convincing a New York appeals court panel of justices to reverse a district court's ruling to find in favor of the artist.
          The perception is that in Kelley's hometown of Dallas, Texas, news media, arts organizations, arts patrons and even artists themselves are reluctant speak out about this important artists' rights cause.  Perhaps folks are nervous about being labelled as rabble-rousers; other people may fear being ostracized after getting drafted into an often crippling art museum, gallery, art dealer, or social blacklist.
          Whatever the reason, it is just plain wrong to have so many art lovers remain passive...silent.  But let us be clear:  it is supremely uplifting to know VLANY is standing tall by doing the right thing for artists' rights in the USA.  ¡Que viva VLANY! 
          The VLANY amicus brief springs from an artist's viewpoint--Sergio Muñoz Sarmiento is an artist and art law counsel--and its thrust is particularly important to the art community.  Read the incisive brief here.

          Should a rehearing en banc be voted down by the justices of the 7th Circuit Court of Appeals, Kelley will plead for relief in the Supreme Court of the United States.

Dallas' D Magazine and arts writer Peter Simek get a letter to the editor: Historical Truth Does Count

Last January 4th, D Magazine arts writer Peter Simek posted on FrontRow that he had read the first installment of Dallas Art History blog and promised to follow up and share his reaction. Well, nearly 60 days later he finally did it.

The following unedited letter to the editor was sent by the Council for Artists' Rights to D Magazine regarding Peter Simek's article "Art Cops." The article is not currently available on the Internet; it can only be accessed via the March 2011 print version or by becoming a magazine subscriber.

The letter needs no set up other than to say that today CFAR received a confirmation email from D Magazine thanking CFAR and that the letter had been received. It is anyone's guess whether or not the letter will ever get published.

Council for Artists' Rights

March 4, 2011

D Magazine
Letters to the Editor
Dallas, Texas

Dear Letters to the Editor:

Much thanks to arts critic Peter Simek for alerting your readership to the existence of Sam Blain's respectable Dallas Art History blog and for informing them of the resurrection of the artists' rights movement in Dallas/Ft. Worth via Simek's D Magazine March 2011 article, "Art Cops."

Peter, several points in your article need clarification. Regarding the "immobilized" Alexander Calder sculptures, prior to meeting your magazine deadline you were supplied the personal contact information of the Nasher Sculpture Center exhibit's two museum-goers who initially reported their shock at the lack of movement of those mobiles. To our surprise, your article omits their first-hand report and involvement. This particular couple are long-time Dallas residents who are respected visual arts professionals in their own right. To support their contention that the Calder mobiles were not moving, ironically, arts critic Lucia Simek (your wife) previously wrote about that exhibition for D Magazine and declared the artwork was "perfectly still" (emphasis added). Obviously it is a struggle to argue against those three eyewitnesses.

Another item needs more explaining, the Booker T. Washington School for the Performing Art outdoor sculpture, Pegasus. The artist who collaborated on that sculpture was not contesting the mere 'repositioning' of it, which you focused upon, rather he was disputing the weightier issue of its form being altered without his or others' consent.

Regarding your take on the Dallas Art History blog, because Sam Blain's blog is offering a 'first-time ever' reporting of Dallas' past, no published references exist for the purpose of comparing notes. And as you probably learned first hand, witnesses who can corroborate Blain's reporting of those historical events, those folks are most likely reluctant to step forward to voice their agreement. A Dallas arts blacklist is alive and well--the blog will deal with those 'stilled' voices.

Your section about the secret sale ($31.4 million value) of the Rothko painting needed expansion. You cast some sunshine on the issue in May 2010 in your D Magazine article
"In Wake of Rothko Sale, Questions Loom Over 2005 Donations' Impact on Museum's Future."  Your readership needs to be reminded the Rothko painting was part of three art collections worth $400 million which were irrevocably promised as gifts to the Dallas Museum of Art, as described in the DMA's "Fast Forward" museum catalog. Similarly, art collectors Howard and Cindy Rachofsky pulled from the DMA's future a sculpture made by Jeff Koons, that one was also in the museum catalog billed as an irrevocably promised gift. The Rachofkys sold it for $25.8 million after he had paid $1.2 million for it in 2001. Another casting recently brought only about $16 million; expectations were for it to bring between $25M and $50 million.

Recently you wrote of Christo's visit to Dallas. He told you his and Jeanne Claude's work was "the freedom of art when it exists outside of corporate, institutional, or gallery contexts.' That description is a perfect fit for someone in Dallas' own backyard. It is precisely the form of outdoor public artwork Dallas resident Chapman Kelley pioneered in the 1970s--Wildflower Works--when he installed it at the Dallas/Ft. Worth Airport and later on the grounds adjacent to the Dallas Museum of Natural History. Further, in the mid-1980s Kelley installed his double ellipse 66,000 sq. ft.Chicago Wildflower Works (1984 - 2004) in Chicago's lakefront park at Daley Bicentennial Plaza. Identical to Christo's belief in self-funding work--all three of Kelley's public works were noncommissioned--Kelley financed them by selling off his Henry Moore bronze1960, a 1957 Calder mobile, a 1968 Jules Olitski, a 1969 Frank Stella Protractor, his last three Franz Klines, and liquidated much of his personal art collection. Your article misstated Chicago Wildflower Works as a being a "public commission," again, it was not.

A little known historical fact is that in the early 1970s, right after "Valley Curtain" was installed, Kelley spent an evening with Jeanne-Claude and Christo. During the 1980s the iconic duo traveled to cities in the U.S. By coincidence Kelley crossed paths with them several times. In 1984 Christo and Kelley worked at adjoining tables and created prints at the Jack Lemmon Gallery in Chicago. Kelley recently said of Christo-Jeanne Claude "they gave me the heart to embark on such ambitious projects artistically and environmentally and to self-fund them."

Finally, your article attempts to marginalize the Council for Artists' Rights, as if somehow its work does not merit a place at the table. That assassination attempt is a classic case of "to hell with the message, let's kill the damn messenger!" The maiden installment of Dallas Art History blog leaves much unfinished business on your plate, the many unanswered questions and issues, for example the vigorously contested $4.5 million Virginia Lazenby O'Hara bequest. Peter, why ask hostile museum officials--who you say demand absolute secrecy--about CFAR? The bottom line is that CFAR garnered the fiscal sponsorship blessing of New York City's Fractured Atlas, is proud of its work and continues to have an unblemished track record.

I realize that your bosses may have muzzled you in your attempt to grapple with the Dallas Art History blog, its Hydra-like potential and the rest, as that the bosses have to 'make nice' as they deal with Dallas' prominent art collectors, art museum officials, and monied advertisers of D Magazine.

So, Peter, in the spirit of the recent Southern Methodist University project sponsored by Creative Time, let's consider this letter to the editor a courageous contribution to that forum.

Tuesday, March 22, 2011

Dallas painter escalates battle, files Visual Artists Rights Act petition rehearing "En Banc"

Undaunted by a February 2011 adverse ruling, Dallas artist will file in Supreme Court of the United States if rehearing petition is thwarted 

     Despite last month's Seventh Circuit Court of Appeals setback ruling, Dallas wildflower artist Chapman Kelley remains unshaken as he forges on in his six-year battle for artists' rights in the USA.

     On February 15, 2011 appellate justices Daniel A. Manion, Diane S. Sykes, and John D. Tinder ruled that Kelley's 66,000 sq. ft. noncommissioned public artwork, Chicago Wildflower Works, did not merit personality or moral rights protection under the Visual Artists Rights Act of 1990 or under copyright law because Kelley lacked "authorship" and his CWW did not possess "fixation." The Chicago Park District destroyed CWW in 2004. Kelley said it was his most important piece.

     On March 15, 2011, Kelley's attorneys filed a petition for rehearing "En Banc". The legal team consists of Micah E. Marcus, Gunnar B. Gundersen, Khaldoun Shobaki, and Diana Torres. If the petition gets enough 7th Circuit judicial votes, the rehearing en banc will involve an even greater number of 7th Circuit Appeals Court justices.

     If necessary, Kelley is prepared to escalate this artists' rights dispute to the Supreme Court of the United States.

     We are not legal scholars but it appears the three-judge panel of appellate justices decided that CWW was strictly a garden and not VARA-protected artwork. Gardens contain uncopyrightable living plants, which the Court said renders CWW ineligible for protection under the law. It said that Kelley could not claim "authorship" to a living plant; that the essence of flowers were not under the strict control of the artist. Their color, size and growth patterns were beyond Kelley's purview, so "authorship" did not rest with him.

     A legal tension exists because CWW possesses some conflicting properties. It was ever-changing and had a sufficient "creative spark" to be classified as an original work of art, imparting the notion, the Court says, that art may be original but uncopyrightable. They also felt that CWW was not sufficiently "fixed" to be copyrightable. Unlike traditional materials used to make public art, flowers are changeable and lack longevity and durability and are incapable of achieving legal "fixation," the Court said.

     The Court indirectly suggested that if Kelley had instead been a landscape designer, it would have been a slam dunk copyright infringement case. Landscape design normally includes records, drawings and diagrams of the designer's idea to provide a sufficient "copy" and evidence to support a claim of infringement. However, the Court failed to internalize that in the process of designing the CWW's 66,000 sq. ft., the artist knew well in advance, had carefully planned the plot's contents, and was aware of each plant's physical characteristics. Kelley was not creating hybrid species of wildflowers, he was not engineering or experimenting with new colors. In effect then, in his mind's eye, he knew exactly which palette of colors would appear in each and every section of his work. He executed and managed CWW by consciously designing it to his artistic vision. Either the Court was unaware of, or failed to inquire about Kelley's 48" x 60" watercolor, a professionally prepared scale model created of CWW, detailed blueprint of soil treatment, exact placement of flowers, construction of forms (steel and gravel), and each and every item was approved by the CPD.

     It is remarkable that had the Court and its research team of law clerks Googled "sculpture," they would have discovered a stunning oversize book called "Living Sculpture" (2001) by noted British garden designer Paul Cooper. Almost all of its 176 pages have striking color plates of artwork from around the world which use living matter. The Court's lack of any mention of "Living Sculpture," or reference to land or environmental art in its 40-page opinion leads to the perception that it is ignoring overwhelming evidence pointing to the legitimate and acceptable use of nontraditional materials to create art.

     The Court mentions Jeff Koons' sculpture creation "Puppy." That sculpture is featured on page 128 of "Living Sculpture." A caption accompanies the photo: "Jeff Koons created this 'outsize 'Puppy' in 1992 from 17,000 bedding plants, fixed to a steel and timber frame. In order to maintain the colorful surface the plants have to be replaced on a seasonal basis. When the plants are in full flower, as here, the mixture of vibrant colours turns the puppy's 'coat' into an abstract expressionist vision." Kelley's CWW consisted of plants which bloom seasonally and was "fixed" in a frame of steel banding and gravel. What more proof is necessary that Kelley's personality and moral rights should be protected under VARA?

     In choosing the Koons "Puppy" sculpture as a springboard for discussing "acceptable" art, the Court attempted to wear the hat of art critic; it essentially blessed "Puppy" as a model for how art should be made, stopping short of actually endorsing it as "approved" art. But the Court falls short with that example because it is universal and common knowledge that each and every flower pot in "Puppy" is called a container garden. So the Court has now taken it upon itself to be the arbiter of what constitutes a "garden," dismissing a Kelley work as an uncopyrightable double-ellipse garden while a Koons "Puppy," consisting of literally hundreds of small container gardens, is original public art and potentially copyrightable. Could the Court and its law clerks have felt more comfortable with the figurative "Puppy" while snubbing the non-figurative CWW? Famous lawyer and art collector John Quinn must be spinning in his grave.

     One analogy to public art having ever-changing properties which are "not fixed" is located in Chicago's Millennium Park, "Cloud Gate," otherwise known as the "Bean." Weighing in at 110 tons and 168 feet high, it has attracted widespread attention in the U.S. and abroad. Its creator, Anish Kapoor, designed the sculpture's highly polished surface to reflect and distort reality, be it the city's skyline or passersby. Obviously Kapoor cannot control the ephemeral reflected images which are an integral property of his work. Similarly, Kelley embraced the inevitable changes of CWW.

     In 2004, the same year CWW was destroyed, the CPD itself commissioned, promoted and organized a program called Art in the Park. There was no shortage of artists willing to participate in the annual project. The park district printed brochures touting the program and advertised in on its website. Visual artists were invited to install their artwork throughout the park system; some used discarded television sets and filled them with living plant material calling it art. By the CPD identifying such work, including their flowers, as public art and then condemning the CWW, they are-- excuse the cliche--trying to have their cake and eat it too.

     On the breach of contract count, the Court ruled in favor of the CPD. What is amazing about the contract decision is that Justice Diane S. Sykes, at oral argument on September 10, 2009 specifically probed the park district lawyer's position on contract law using precious court time to discuss theory. Official court transcripts show the park district lawyer herself agreed with Sykes on the implied contract idea but was at a loss which type of implied contract was applicable. Why would Sykes initiate discussion of it, engage a lawyer and then completely do an about face in the 40-page appellate ruling by not even referring to the oral argument discussion or further analyzing it? Was the oral argument a complete waste of everyone's time?

     The Court called "astonishing" the CPD's refusal to challenge the CWW as a work of art. That "no contest" meant one thing: the CPD considered CWW to be public artwork. Instead of acknowledging CPD's concession, the Court took it upon itself to characterize it as a demure "omission." The so-called omission by the CPD was done intentionally; no respectable arts professional on the planet would give testimony about the CWW not being a work of art. That expert witness would have been laughed out of the profession! The Court, instead of exercising judicial restraint by recognizing the CPD's hands-down defeat admitting it was a work of art--and using it to bludgeon the CPD's argument--instead became judicial activist by giving the CPD a pass.

     One important facet of CWW as art project is the availability of dated, copious photo documentation. Evidence supports that the CWW was in great shape through the summer of 2004. Despite such evidence, coupled with testimony from a majority opinion of four: an expert witness, Kelley, Slavin and Trujillo--the panel of three appellate judges allowed the use of a strongly pejorative term to creep into page two of its Opinion. It is our understanding that appellate cases are normally limited to the factual record stemming directly from the District Court.

     The opening second paragraph of the Opinion which the 7th Circuit Appellate Court filed on February 15, 2011, contains a pivotal sentence describing the Chicago Wildflower Works which is MISLEADING. The prejudicial sentence is "But by 2004 Wildflower Works had deteriorated, (emphasis added) and the City's goals for Grant park had changed." The gratuitous use of "deteriorated," conveys a court as having a dismissive if not outright hostile attitude. How the trial court's description of the CWW morphed from a fairly neutral "ongoing issues with maintenance" to the appellate court's using "deteriorated," is shocking; it is a cause for concern, if not ALARM.

     The unsubstantiated characterization "deteriorated" insults all CWW workers and supporters; it has been picked up by the press across the country and overseas, thus harming the integrity of many devoted and honorable volunteers and supporters, to say nothing of the fact that if the appeal judges were so predisposed from the beginning that CWW was a failure and fraud, no fair judgement of the pending case was possible.

     Also, would any of us have even considered finding in favor of the plaintiff after reading a court document telling of CWW's (unproved) abandonment and (unsubstantiated) deterioration? What might the Board of the CWW, its respectable officers possibly have gained by a 20th Anniversary celebration if this alleged condition existed? Were they all insane? It is no wonder the appellate court went fishing outside of court testimony to invent new issues of "authorship and fixation" to support a foregone verdict which was conceived earlier at the trial level.

     Photo documentation of the CWW is available and will be published; the public will know how they have been misled and how justice has been perverted. Did the Court do a hatchet job on Kelley despite photographic proof that CWW was in prime shape at the time of destruction in 2004?

     The Court discounted Kelley's idea that CWW was a work of public art and the logical ramifications of calling it so. It said "That Kelley considered the garden to be both a painting and sculpture--only rendered in living material--is not dispositive." The dictionary defines dispositive as "providing final resolution, having control over an outcome." If professional artists cannot define their creations as works of art, using whatever medium, but must instead rely on justices to make that determination, will there soon be a very long line of artists filing VARA cases in order to have their work sanctioned by the Court?

     Kelley has been a professional artist for most of his adult life. He deemed that his creations were works of art, why should it take over six years for the legal powers that be to catch up to his proclamation? Reached at his Dallas residence by phone, Chapman Kelley said, "Gardeners make gardens, painters make paintings. I happen to be a painter."

     VARA was passed with the intention and hope that artists' personality and moral rights would take its rightful place in the USA joining other landmark legislation tied to women's rights, worker's rights, civil rights and people with disabilities rights among others.

     It appears this three panel of justices went out of its way to strip VARA of its intention and by doing so deprive artists of their just place in society.

     Other arts professionals and art lawyers unrelated to the case are taking an interest in this matter. On or about March 26, we hope to make available an ally's contemporaneous court filing.

Monday, March 21, 2011

Dallas Museum of Art Named as Defendant in 2nd "elderly lady" Will Litigation

Contested Virginia Lazenby O'Hara $4.5 million bequest resurfaces as potentially establishing "pattern of wrongdoing," after sole heir of Dallas' Wendy Reves names Museum in litigation

     The New York Times recently reported on a dispute involving the sole heir of art collector and arts patron the late Wendy Reves regarding a March 11, 2011 lawsuit naming the Dallas Museum of Art as a defendant related to Reves' final will. The article is entitled "Dallas Museum is Sued." Plaintiff Arnold L.Schroeder Jr. essentially pleads wrongful fiduciary behavior by the DMA. The official court document is made available by Robert Wilonsky at Unfair Park here, along with the article.

     This is at least the second lawsuit where the DMA is forced to defend against charges of illegality. The first filing occurred in the 1970s when the actions of another "elderly lady," Virginia Lazenby O'Hara, caused Dallas taxpayers and arts patrons to stage a revolt against the ambiguous final wording of her will which wed a public museum, the DMA, with a private entity, the Foundation for the Arts.

     That 1970s class-action lawsuit--among whose plaintiffs were the Friends of the DMA and Artists Equity--caused individuals to become blacklisted. Their associates and friends, tarred with a "guilt by association" label, were blacklisted as well.

     Dallas taxpayers and arts patrons deserve a museum management team, including trustees, who are highly ethical people. Legal problems such as these lawsuits underscore a tension and dissatisfaction. And although decades separate the legal disputes they point to a museum steeped in a culture of questionable behavior.