U.S. Art Museums Must Follow this Leader

     At a time when a number of American art museums are plagued by scandals related to the lack of public accountability, mismanagement, and gross conflicts of interest, there is one director and museum that stand out as a beacon of responsibility to the public and the professional community coupled with a cognizance of its indebtedness to the American taxpayer. The Council for Artists' Rights would like to recognize Maxwell Anderson of the Indianapolis Museum of Art as the decade's most laudable museum director in the U.S.A.

     Founded on November 7, 1883, the Indianapolis Museum of Art has long had a very distinguished record as a premier encyclopedic museum. In recent years and under the guidance of Maxwell Anderson it has gained new accolades as an up to date example in setting the tone for museums of the future. He is fully aware that tax-exempt public institutions, such as art museums, must avoid the pitfalls of being operated for the personal social enrichment and monetary benefit of a few.

     In the spring of 2010 the American Association of Museums published a policy paper on its website, "A Clear View: The Case for Museum Transparency" written by Maxwell Anderson. In it, Anderson lays the groundwork for what an art museum should aspire to. His not for the faint-hearted "gold standard" recommendations have been incorporated into the IAM's day to day operations and long-term vision. You can read Anderson's paper in its entirety at the end of this post. And prior to that, on April 4, 2001 Anderson made a statement to the U.S. Congress championing artists' rights. It is part of the Congressional Record -Senate, on pages S3444 and S3445 available here.

     With such a stellar example of museum stewardship available to emulate such as Maxwell Anderson, the search committee of the Dallas Museum of Art would be well advised to consider its own Senior Curator of European and American Art, Olivier Meslay, to fill the position as DMA museum director

By the way, we have yet to hear back from the Dallas Museum of Art in response to our letter:

"April 12, 2011
Olivier Meslay, Senior Curator of European and American art
Dallas Museum of Art
1717 North Harwood
Dallas, Texas 75201
Tel. 214-922-1200
Email: to follow

Re: The Eugene McDermott Interim Director

Dear Olivier Meslay:

I trust this email finds you well. Your direct contact information is not available on the DMA website. Congratulations on being chosen as the Interim Director of the Dallas Museum of Art.

It is our hope that you will emerge as a serious candidate to become the next Eugene McDermott Director. Should you be chosen to fill that important position, we have every expectation that you will manage the DMA as a public institution and not--as some have commented over the years--as a "private country club."

Your background indicates that you value fiduciary trustworthiness; art museum scandals in Europe are virtually nonexistent and artists are held in the highest esteem.

All the best,
John Viramontes
Council for Artists' Rights
founding member    

The reason the Council for Artists' Rights feels so strongly about having Mr. Meslay at the head of the DMA is because under its previous management, we consider the DMA to have been the worst run art museum in the U.S. A quick Google search will reveal much evidence of instances of taxpayer and fiduciary accountability issues at the DMA such as the lack of transparency about the financial details of the King Tut exhibition, the dismantling of the Claes Oldenburg-Coosje van Bruggen Stake Hitch sculpture, a museum trustee's secret sale of a museum-promised Rothko painting valued at $31.4 million, and yet another sale yanked from the museum's future a Jeff Koons sculpture originally purchased by the Rachofskys for $1.2 million and sold at auction for $25.8 million, among others incidents going back to at least the 1970s.

     Here is Maxwell Anderson's article as published in 2010 on the American Association of Museums website:

"A Clear View: The Case for Museum Transparency
by Maxwell L. Anderson

Museums continue to operate largely as we always have, with minimal regulatory oversight of the kind routinely accorded institutions of higher education. Social media—such as blogs, Facebook and Twitter—now play an increasing role in the revelation of misconduct, bias and cluelessness. Yet our funding is principally from sources requiring superficial accountability, our strategic planning is rarely compelling, board and staff are uninformed about exactly who is and is not participating in our exhibitions and programs, and we provide fare that is indexed to internal priorities, with minimal effort to explain what we have chosen not to do, or the explicit rationale for what we have chosen to do.

It is essential that museum leaders resist self-congratulation and start explaining our priorities, our intentions, and the desired and measurable outcomes of our efforts. Fostering transparency in our operations is an indispensable attribute of every museum’s overarching management philosophy. It cannot remain an occasional indulgence or an option, any more than budgeting accurately, hiring thoughtfully or operating responsibly. Reciting bromides about our traditions or inherited purpose has no discernible impact on those texting observations about us on some of the 2.2 billion cell phones in use today.

In the same vein, excessive claims about attendance, box-office results or economic impact are behaviors that will come back to haunt us. We must explain the basis of attendance statistics; once we confess that many of our visitors and members return multiple times each year, the stats look a lot less rosy in relation to an exploding world population. Our ostensible economic impact should be measured and reported, with the supporting evidence explicit. And if we acquire and sell objects for and from our collections with only a secondary regard for potential claims on ownership, ethical dilemmas or sources and destinations of funds, we are exposing our institutions to great risk.

The following five truths are not self-evident; they need to be explained. And explain them we can, but only if we are true to ourselves and to the public in soliciting, capturing, contextualizing and revealing information about our activities.

The size of a cultural organization’s audience should not dictate the extent of its support from the public purse or from any other combination of sources. Every museum measures participation differently, so the purported results are unreliable. More importantly, the contributions of museums cannot be reduced to foot traffic/head count, any more than the contributions of scientific laboratories can be reduced to the number of laypeople who avidly follow advances in research.

We are not a subset of the entertainment industry and should not be measured by the same standards or adopt similar pricing conventions. Museum programming begins not with asking what a mass audience wants, but with what we might all benefit from experiencing, even if we have to struggle and sometimes fail to draw a huge audience.

A healthy museum should aim for a budget that supports its exhibitions, programs and other activities instead of looking for mission-irrelevant activities to pay the bills. Rather than focusing first on revenue-generating activities, administrators should start with a quest for contributed support. Otherwise, we veer towards a sales or entertainment model that ultimately jeopardizes our tax-exempt status. Exorbitant admission fees can’t pay the bills of art museums, but they can drive away families and younger audiences.

As mission-driven nonprofits, museums are red-ink businesses. Back-of-the-house costs include security, climate control, research, publishing, educational offerings, care of collections and salaries for employees not tasked with earned or contributed revenue. We must build endowments and solicit support to offset these expenses.

Government support of culture is an appropriate use of the public purse. While the system of tax-exemption provides a progressive mechanism to incentivize philanthropic support, it rarely results in contributions adequate to offset all costs facing cultural organizations. Furthermore, the premise in every Western democracy other than the U.S. is that cultural offerings are indispensable to their citizenry—they define a nation’s identity and shape a national conversation about what matters most.

So what is it about museum leaders that hampers the embrace of transparency? The answer is simple: the reward system for museum directors is antiquated and needs to be revamped to incentivize scholarship, conservation and educational outcomes—rather than the pursuit of crowds. The Internal Revenue Service has encouraged some rethinking of the current reward system. Compensation committees of boards are now obligated to disclose how they arrive at compensation decisions as part of the revised Form 990. Six pages of dense instructions published in January 2009 effectively stripped away the fig leaves of our cultural executives. It is a foregone conclusion that excessive compensation and first-class travel will need convincing explanations from here on out.

But this is only a small piece of the puzzle. Combating profligacy is a very low standard for what transparency can achieve. It is not asking too much for chief executives of nonprofit organizations to observe certain standards of behavior, eschew excessive benefits and avoid conflicts of interest. But surely the revelation of compensation on a broad scale should be the norm. Not revealed by a tax form are the less tangible expectations of leadership. Such expectations should include an open workplace culture, ample room for contrasting views and a focus on best practices rather than short-term glory.

The compensation committee normally asks the chief executive only to keep a balanced budget and make the museum relevant to its community, leaving other goals unstated. This limited mandate stems from the traditionally cordial accord between board and director that allows the management of the organization to oversee staff and the board to focus on policy and fundraising. But there are strains in the relationship, as witnessed in the public drama attendant to now-routine, high-profile exits of museum leaders. Several departures in recent years are a function of unrealistic expectations of the commercial viability of expanded facilities, which were built without adequate planning for increased operating expenses.

One problematic, often board-driven expectation of the chief executive today is to rattle the tin cup while holding one’s nose in the face of unwelcome conditions attached to gifts. In recent years, there has been a trend towards "venture philanthropy," in which a donor’s wishes can trump institutional need. True transparency would reveal that contributions with strings can lead institutions astray, as when philanthropist Catherine Reynolds signed a contract to support a hall of achievement for the Smithsonian’s National Museum of American History. By the terms of the contract, she was entitled to propose people for inclusion in the hall. The Smithsonian had the right to make the final selection, but human nature could easily have prompted the lauding of some individuals based on donor preference rather than on a review panel’s objective assessment. Whether the inclusion of Sam Donaldson and Martha Stewart would have been worth a $38 million gift may remain a question for the ages, but the offer was withdrawn in the face of public criticism.

This is but one example of how transparency can serve the public good: The revelation of the terms, names and process led to controversy and a rescinded offer, and ultimately contributed to Lawrence Small’s exit as secretary of the Smithsonian. Nothing about this tale bears celebration. But the lesson learned is surely that there must be limits on how philanthropy plays out in a cultural landscape run largely on contributed revenue. And that open disclosure of gifts with strings is both a necessity and a means of preventing institutions from going down a path on which the long-term detriments exceed the benefits.

The dangers of pursuing earned revenue are no fewer. The feverish chase of ticket revenue or corporate underwriting has led to wrongheaded programming, from the Guggenheim’s Giorgio Armani retrospective to the legions of ground-breaking, revelatory and compelling exhibitions abandoned because their financial promise was deemed inadequate. True transparency would reveal that ticket sales are marginally beneficial for most museums and that they divide prospective audiences into haves and have-nots. And it might even open the door a crack to programming that provides a greater educational value than box-office appeal.

Despite these challenges, running a complex 21st-century organization with reflexive transparency is easier than it seems. At the Indianapolis Museum of Art, we approach every decision with the assumption that our activities will be open and evaluated. The topics for every senior staff meeting are posted on a staff-wide intranet in advance, and minutes are posted following every meeting. We manage budgets and projects with files open to all staff, encourage unedited staff commentary on the IMA blog hosted on our website and in general assume that apart from medical records and performance reviews, there is little we should keep from one another. We post our IRS Form 990 on the IMA website as soon as it has been approved by the board rather than waiting for Guidestar.org to find it almost a year later.

The IMA Dashboard has received a fair amount of notice since its September 2007 launch. An evolving template for institutional performance metrics, it was conceived by staff to help the public evaluate our museum’s adherence to mission, addressing issues such as energy consumption, the circulation of artworks in and out of the galleries, conservation treatment hours, funds raised year-to-date as a percentage of budgeted goals, size of endowment month-to-date and other potentially embarrassing matters. Recent additions have included an interactive map showing the Zip codes of our visitors, revealing the extent to which we attract an audience reflecting the demographics of our metropolitan area.

We also added a novel feature to the IMA website that lists objects to be deaccessioned (sold, transferred or exchanged), with valuations provided. The public can follow the disposition of deaccessioned works online or search for them, since we post the reasons for deaccessioning, sale date, funds received and links to works acquired from the proceeds of sales.

The steps we are taking towards transparency at the IMA are born of an instinct to rethink how a museum should operate in today’s electronic fishbowl culture. The ultimate objective is to raise the standards of the profession as we step into uncharted territory. The unexpected, rewarding result is a more honest organizational culture in which constructive dissent and failed experimentation are not punished, profession-wide innovation is favored over score-keeping about our successes and going to work in the morning is a continuous adventure. Once you decide to transition from providing select information to restricting select information, a host of new institutional behaviors becomes the norm. While a diminished endowment and challenging economic environment present many obstacles, our staff has chosen to model the best practices we can invent or follow, resist territoriality, reveal agendas when they surface and face tough choices with equanimity and honesty.

Of all workplaces, a museum should prize innovation and social benefit over personal or professional gain. That’s easy to say if you’re earning a salary as competitive as this author’s, and harder to say if you’re not. But unless I’m delusional, the majority of IMA’s staff is focused on our mission, energized by our potential and persuaded that our embrace of transparency has improved workplace ethics and performance. And if that isn’t the case, you’ll likely read qualifying commentary on our blog in short order."

A lighter look: the 7th Circuit Court of Appeals gives us a new seed!

          Valentines Day 2011 undoubtedly sparked the imagination of many lovers.

          The following day, the unbounded imagination of 7th Circuit Court appellate justices Daniel A. Manion, Diane S. Sykes, John Daniel Tinder was revealed for all to see.  That's the day, delivered via their ruling in Chapman Kelley v Chicago Park District, the judges unveiled their new concept:  a seed with amazing properties.

          That precedent-setting ruling essentially said that Kelley was not the "author" of his artwork the Chicago Wildflower Works.  Instead, the trio of judges declared the "author" of the artwork to be a wildflower seed itself.

          Anyone with an intimate knowledge about the Wildflower Works concept knows that Kelley purchased many thousands of dollars of wildflower seeds. He would be intrigued to no end and would be most anxious to encounter this new seed rolled out by the 7th Circuit. 

          This 7th Circuit creation has some truly magical attributes, the seed:

1. It has the brain to conceive and plan its own future.
2. It possesses a mouth and communicative skills able to convince many humans and fellow seeds to carry out its ideas.
3. It has access to funds that drive results.
4. It commands scientific knowledge able to design a community of plants that provide continuous flowering, solely using rainwater, utilizes no fertilizers, or insecticides, and yields a sequential growth pattern throughout the Midwest's three seasons.
5. It has the ability to inspire a small army of citizens, causing them to spend many hours as volunteers over a 20 year span, whose work caused flower blooms that delighted casual passersby of local and international origin, leading to much documented public praise.
6. It is able to lead and coordinate at a complex level to produce a work that everyone, including the Chicago Park District---excepting the 7th Circuit--has hailed as a successful work of art.

          It seems that all of these talents would rather define a human author.

          If seeds--there are far more seeds in the world than humans--truly have these humanoid abilities, we humans had better immigrate to another habitable planet.  Perhaps now that the 7th circuit has brought forth this remarkable seed as author, it can also provide an escape to the beyond for us.

          Should these justices and their law clerks be remanded to the third grade? 

Marla Fields: Frank Reaugh Production Continues

Independent filmmaker Marla Fields continues to garner support from the wider community.  The work-in-progress documentary on the life of Texas painter Frank Reaugh gains steam.

Wikipedia has more information on the "Dean of Texas Painters."

Spread the word if you can. 

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
receptionist@dmagazine.com

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.

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.

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.