In recent art world news, following last month’s federal district court ruling that a New York City developer violated the Visual Artists Rights Act (“VARA”) when he demolished well known graffiti space, 5Pointz Aerosol Art Center, the 5Pointz graffiti artists recently requested that the developer pay their attorneys’ fees totaling $2.6 million.  In last month’s ruling, the judge ordered the developer to pay $6.75 million in damages to the graffiti artists for his willful violation of VARA.  Our recent coverage of the aerosol art litigation can be found on the Art Law blog here.

As an amendment to the US Copyright Act, VARA’s dictate that courts “may . . . award a reasonable attorney’s fee to the prevailing party” covers the 5Pointz case.

The 5Pointz artists argue that they should be reimbursed for fighting a case that was “unprecedented in both its scope and its subject matter,” and one that “stands to shape the history of art itself in the United States.”

The plaintiffs should receive [fees] in order to encourage other attorneys to assume the risk of fighting for the cherishing and preservation of public art in the United States and to fully compensate the plaintiff attorneys for their path-breaking work and substantial assumption of litigation risks and costs on behalf of the large group of plaintiff artists[.]”

With a requested total $2.6 million in attorneys’ fees from the 5Pointz litigation, one may or may not regard such high amount as “reasonable” to justify an award to the artists.



In recent art world news, France’s highest court, the Cour de Cassation, issued a ruling on March 7, 2018 that ends the lengthy dispute between the heirs of Peggy Guggenheim’s daughter, Pegeen Vail, and the Solomon R. Guggenheim Foundation based in New York.  The court has dismissed an appeal by Guggenheim heirs who sued the foundation in 2014, alleging that it had failed to respect Peggy Guggenheim’s wishes in its management of the Palazzo Venier dei Leoni in Venice, Italy and the modern art collection it contains, which was donated and bequeathed to the foundation by the late collector.  Our earlier coverage of the parties’ long-running legal dispute was featured on the Art Law Blog in July 2014.

As some background, Pegeen Vail’s heirs first sought legal action against the foundation back in 1992.  That case was dismissed, however, before the heirs’ appeal was heard, the foundation and heirs had reached an agreement in December 1996.

Nearly 20 years later in 2014, the heirs sued the foundation again, alleging that the organization had “disrespected Peggy Guggenheim’s wishes by accepting the gift of 83 post-war and contemporary works bequeathed by the collectors Rudolph and Hannelore Schulhof and displaying these in Peggy Guggenheim’s Venetian palace.”  In 2013, the late collector’s works were moved to storage to provide space for a four month exhibition of the Schulhof bequest.

In its ruling, the court determined that the 1996 agreement between the parties “imposed no constraint on the number or the duration of the displays or other collections, nor did it require a constant presentation of all the works” in the late collector’s collection.  The court further determined that the plaintiffs “did not establish” that the display of the collections donated by Schulhof and others “damaged the reputation” of Peggy Guggenheim’s own collection and they did not represent the “failure” of the foundation to fulfill its obligations.

The plaintiffs also claimed that the foundation had desecrated the late collector’s burial site.  Guggenheim’s ashes were interred in the gardens of her Venetian palace beside those of her beloved dogs.  The heirs argued that the foundation had disrespected the site with the display of works donated by Patsy and Raymond Nasher in close proximity and “profaned” her final resting place by leasing the garden for private events.

The court disagreed and ruled that under Italian criminal law (applicable in this suit) the foundation’s management of the late collector’s burial site had not undermined “the memory of the deceased person” and that events held in the garden did not constitute “profanation”.  The plaintiffs were ordered to pay the foundation €3,000.

For further information on this lengthy legal battle between Guggenheim’s heirs and the foundation, see Case dismissed:  France’s highest court rules in favour of Guggenheim foundation, published online by The Art Newspaper on March 8, 2018.



In recent art world news, popular social media site Instagram has been having a significant effect on the art world since its launch in 2010.  The photo and video sharing app has evolved into the cornerstone of the art world becoming a home to many in the industry, including artists, art collectors, auction houses, curators, galleries, and museums.  Many artists are using Instagram to promote, discover and sell art.

Many emerging artists see the photo and video sharing app as a democratizer, helping artists who might not have representation from the most prestigious galleries or degrees from the most exclusive art schools get their work in front of big audiences.”

Before the arrival of social media, emerging artists had a more difficult time getting their work out there and being noticed.  In the past, under the traditional route, artists would contact local galleries and hope for a favorable outcome.  To promote a bigger following, artists faced numerous hurdles, such as securing representation at prestigious galleries, exhibiting around the world, and participating in premier art festivals.

With the arrival of social media, artists started using various services such as Facebook, Flickr, Tumblr, and Twitter to highlight their work, attract audiences around the world, and advocate on their own behalf.  Instagram, however, is said to have the biggest impact on the art industry.  Remarkably, Instagram is on track to achieve a billion monthly active users in 2018.

The coalescence of tech, demographics and changing buying habits also plays a role in making Instagram the tool of choice for art professionals.  In the Venn diagram of people who use Instagram and people who are discovering and willing to buy art online, the overlap is increasing.”

According to research from Pew, about a third of online adults in the United States use Instagram and among those aged 18-29, the app’s usage increases up to 59%.  Online art marketplace Invaluable, in its 2017 survey, found that nearly 56% of consumers in the United States aged 18-24 said they would purchase art online and 45% said social media is the primary way they find art.

Although art sales from the big auction houses from the likes of Christie’s and Sotheby’s are well documented, there isn’t much data on private art sales, and it’s difficult to say whether direct sales via Instagram are taking away gallery sales.  Though it has been reported that auction houses and galleries are seeing their own sales gain traction as their work is discovered on Instagram.

Major galleries and museums have even benefited from use of the app by cultivating tremendous followings on Instagram.  Museums use Instagram to promote upcoming exhibitions, provide followers an inside look at their operations, and make art more accessible.  The Los Angeles County Museum of Art (LACMA) views its Instagram page “as something of a virtual gallery that allows followers to feel like they’re seeing an exhibition, even if they’re not in Los Angeles.”  Smaller galleries, on the other hand, use Instagram to discover new artists.

Some artists have said that Instagram can be distracting, particularly when artists get wrapped up in seeing how many “likes” or comments their work receives as compared to others.  Some are concerned that “an overreliance on Instagram could discourage people from attending art shows and shift the enjoyment of art from an in-person experience to something that happens over a phone.”

As with any technology, there are going to be pros and cons, but it certainly appears that Instagram has had a mostly positive effect on the art world.



Richard Polsky writes:

The ramifications from last May’s sale at Sotheby’s of a Jean-Michel Basquiat painting, for $110 million, continue to reverberate. It made the buyer, Yusaku Maezawa, an art world household name. It led to the current “One Basquiat” exhibition, of the now-iconic canvas, at the Brooklyn Museum. It also provoked a multitude of Basquiat owners into believing their paintings were worth far more than they actually were. And, finally, the sale unleashed a slew of fake Basquiats onto the market.

It reminds me of what occurred back in 1990, when the famous Tyrannosaurus rex skeleton, known as “Sue,” was discovered. Those who remember the story will recall how the most complete and best-preserved specimen of its type was found on the South Dakota ranch of Maurice Williams. After the dinosaur was unearthed, Williams unwittingly sold it for $5,000. But because he was a Native American, whose land was held in a government trust, he was able to take the buyer to court and have the deal rescinded. Once Williams got his mega-fossil back, he ultimately consigned it to Sotheby’s, who sold it to the Field Museum of Natural History in Chicago for $8.3 million.

After the sale went down, I spoke to Henry Galiano, a well-regarded paleontologist and fossil dealer. As he put it, “You wouldn’t believe all the calls I’m getting from ranchers claiming they have dinosaur bones on their property. Usually, they turn out to be cow bones. People think all you have to do is find a skeleton, hitch a chain to it and yank it out of the ground, and you have a million dollars! They’re all a bunch of ‘dinosaur dreamers.”

The equivalent is currently happening in the art market; a plethora of “Basquiat dreamers” have emerged. Since last May’s sale of one of the artist’s two greatest “Skull” pictures (the other is at The Broad), facsimiles of Basquiats continue to show up in our email. They’re sent by owners seeking guidance on whether they’re genuine. Sometimes, these digital images are outright laughable. More often than not, they bear a passing resemblance to a real Basquiat, but fail to capture the distinct personality of the painter. What all of these works have in common is they always include a depiction of a gold crown. It’s as if the creator seized upon the painter’s well-known icon and assumed by placing it somewhere within the composition, an alchemical process would occur and — voila! — you’d have a genuine Basquiat.

Just as a forger includes a crown, a seller often includes a story about how the work was acquired directly from Basquiat. Hoping to bring street cred to his pitch, he often refers to it as a cash-and-carry deal, so Basquiat could buy drugs — hence there was no paperwork. The potential buyer often nods his head, wanting to believe what he’s just heard, because he too knows Basquiat had a heroin problem. It makes him feel like an insider. After all, this is the art market, where one has to be an insider to get the good deals.

Regardless of all the scams out there, it’s important to point out that genuine Basquiats do emerge from time to time. Last year, through the organization POBA, we were asked to authenticate a large drawing which belonged to someone from Basquiat’s inner circle. Everything checked out and another important drawing took its place within Basquiat’s canon. It’s also worth mentioning that there are numerous authentic Basquiats which were never officially authenticated by the Basquiat estate. Many of these are documented in books and gallery exhibition catalogs. But a surprising number are not illustrated anywhere — yet are right as rain.

Inevitably, all of the hype surrounding the $110 Million Basquiat will dissipate. Assuming the art market continues on its upward trajectory, eventually another major Basquiat painting will break the record held by Mr. Maezawa. But until that happens, we will remain in a period where a steady flow of fake Basquiats keep popping up like varmints in a game of Whack-a-Mole. And just like the plastic moles, which aren’t real, most of these paintings won’t be real either.

Richard Polsky has accumulated forty years of expertise in the contemporary art world as a gallery owner, author of multiple books on the art market, lecturer, and provider of litigation support. Richard Polsky Art Authentication can be viewed at

In recent art world news, last week a federal district court in New York ruled the Visual Artists Rights Act of 1990 (“VARA”), a federal law protecting visual artwork from destruction, covered the graffiti artists’ aerosol artwork on a property owner’s warehouse buildings.  VARA amended existing copyright law to protect artists’ moral rights of attribution and integrity.  Intentional destruction, mutilation, or modification of a work of visual art violates that integrity.  The court determined that the destruction qualified for heightened damages because it was a willful violation.

The court’s ruling may be a warning to property owners who permit street artists to create art on abandoned properties.  For nearly two decades, property owner Gerald Wolkoff allowed a group of graffiti artists to occupy what has become known as the 5Pointz Aerosol Art Center in Long Island City in New York.  When Wolkoff moved to develop the property, the group of 21 street artists sued and sought a preliminary injunction.  The court had issued an order denying preliminary injunctive relief to the artists, but stated that a written opinion would soon be issued.  In the eight days between the court’s denial of the artists’ request and the issuance of the opinion, Wolkoff painted over the artwork.

Under VARA, if a work is part of a building to be torn down, the artist must have an opportunity to remove it, but Wolkoff’s hasty whitewashing denied the artists that opportunity said the court.  The court rejected Wolkoff’s argument that any damages should be tied to a valuation of the works.  The court said that deterrence of such behavior was “perhaps the most important factor” of the five relevant factors it considered in deciding the case.  “Wolkoff remains undeterred, and unrepentant that his thoughtless act violated the law and had a devastating impact on people he claims he was trying to help.”

According to the court,

[i]f potential infringers believe that they can violate VARA at will and escape liability because plaintiffs are not able to provide a reliable financial valuation for their works, VARA will have no teeth.”

The court determined that all five relevant statutory factors (i.e., the infringer’s state of mind; the expenses saved, and profits earned, by the infringer; the revenue lost by the copyright holder; the deterrent effect on the infringer and third parties; and the conduct and attitude of the parties) supported the maximum award of statutory damages under VARA.  Thus, the court awarded the artists $150,000 for each of the 45 works “wrongfully and willfully destroyed” for a total statutory damages award of $6,750,000.

For a detailed background and history of the aerosol art litigation and the entirety of the court’s decision, click here.

In recent art world news, three paintings by Flemish master Joachim Patinir were formally handed over to the descendants of Herta and Henry Bromberg at the Louvre Museum by French Culture Minister Francoise Nyssen.  This is the second time in two years that France has returned looted art to the family.  In 2016, France has handed over another 16th-century painting, “Portrait of a Man”, created by one of the followers of Antwerp artist Joos van Cleve.

The Bromberg family was forced to sell the 16th-century “Triptych of the Crucifixion” depicting Christ on the cross, along with several other paintings, the following year after fleeing Germany for France in 1938, so they could come to the United States by way of Switzerland.

The three Patinir paintings had faded away for nearly seven decades as unclaimed in the French state collections after having been recovered in Munich following World War II.

The late Flemish master is considered the father of landscape painting who developed the panoramic style that became the distinctive feature of the northern Renaissance.

In recent years, France has improved its efforts of the restitution of looted art from World War II to its rightful owners through the use of genealogical experts to trace families.

According to former culture minister Audrey Azoulay, who is now Director-General of UNESCO:

It is no longer acceptable to wait for descendants to turn up and ask for the restitution of their family’s art for them to be given their due[.]”

It has been reported that up to 100,000 works of art, and millions of books, were stolen from French Jewish families or Jewish families who had fled to France prior to the German occupation.

After World War II, the Allies had located 60,000 of the missing works of art, and France has been returning works of arts to families since the 1960s though only 30 works were returned up to 1994.

Since 2013 France has made a more concerted effort to resolving the issue of the restitution of looted art with a commission of experts, historians and archivists.





In recent art world news, following strong sales in 2017, the international auction houses are said to be “feeling bullish” once again.  Last Friday, Christie’s announced that it had sold about £5.1 billion or $7.3 billion of art and collectibles worldwide (up 26 percent from 2016) in 2017.  Phillips saw a similar improvement over 2016 sales with auction and private sales of $708.8 million (up 25 percent from 2016) in 2017.  As both auction houses are privately held, neither one disclosed a profit or loss.  Publicly traded Sotheby’s will disclose its financial results for 2017 at month’s end.

The $450.3 million fetched in November for Leonardo da Vinci’s “Salvator Mundi” helped propel Christie’s auction sales by 38 percent along with 65 lots that sold for more than £10 million.  Many of the auction house’s lots were supported by financial guarantees.  The strong sales signify that the art market is surging.

Auction houses among the likes of Christie’s, Sotheby’s and Phillips have high overheads with business models that haven’t changed much since the 18th-century.  A primary challenge is that they keep up with the upward trajectory growth of global wealth and earn money from it.  Each auction house has its own unique strategy in doing so.

In particular, Phillips’ key selling category is 20th-century and contemporary art that raised $421.8 million at auction last year (or 60 percent of the annual total).  Phillips complements its art auctions with sales of 20th– and 21st-century design, photography and prints, and generates further revenue by sales of watches and jewelry.  Phillips has held just two online-only auctions in collaboration with Artsy last year.

In contrast, Christie’s attracts new buyers through its own well-established program of online-only auctions.  Last year, Christie’s held 85 digital sales of luxury goods and lower-value collectibles fetching £55.9 million or about $80 million.  Although this accounted for only one percent of annual total sales, it represented 37 percent of the auction house’s new buyers.

Last December, Sotheby’s announced that it had sold $4.7 billion of art and collectibles at auction in 2017 (up 13.1 percent from 2016).  While this was below Christie’s auction sales of $6.6 billion, Sotheby’s has diversified into other areas, including financial services, art advice and managing artist estates, and image recognition technology.  Sotheby’s upcoming financial results for 2017 will disclose the amount of its revenue derived from such 21st-century business models.

But for the moment, the 18th-century model of live auctions continues to do nicely [for the auction houses], tracking global economic growth.”

It remains to be seen as to how technology is going to change things, but it would seem that it could streamline and add efficiency to the art buying process and attract a greater reach of new buyers, particularly the future generation of art buyers and collectors.


In recent art world news, one may think that the digital revolution has provided some “much-needed transparency” to the art market with the sale of artwork now being bought online as regularly as books and music.  However, according to last year’s Hiscox Online Art Trade Report (publication of the 2018 edition is forthcoming in April), it is estimated that online platforms accounted for about $3.75 billion of sales in 2016 (up 15% from 2015), which represents just an 8.4 percent share (up from 7.4% in 2015) of the overall art market.

Despite the low overall art market share for online platforms, the art world’s digital sector has seen new developments.  In particular, just last week it was announced that online auction house Paddle8 had merged with Swiss tech company The Native, and would develop an auction that accepts virtual currency (i.e., bitcoin).  Also, last week Sotheby’s announced that it had acquired Thread Genius, an artificial intelligence (AI) startup company specializing in developing identification software by using algorithms to identify objects and suggest images of similar objects.

While the music and publishing industries have been transformed by retailing via an online platform, this has not been the case for the art market, which has been slower to move in such direction.  Some in the art world have made the well taken point that artwork is unique and much more expensive than mass-produced books and music.  A high price tag of six figures and up has the effect of deterring digital impulse purchases.  Indeed, online art sales tend to be dominated by artwork priced below $5,000.

Prices remain a major hurdle for the expansion of the digital art trade, not just because they are often so high, but because of their lack of availability.  Consumers looking to buy, say, a shirt online can browse numerous fashion websites where thousands of items are clearly labeled and priced.  But all too often, prices on art dealers’ websites—and in their galleries and booths at fairs—are ‘on application,’ a process that can be both laborious and forbidding.”

Unsurprisingly, from the perspective of the consumer, dedicated online-only art auctions having transparent price structures benefit from a definite edge over dealer transactions in the digital space.  Since last May, in an effort to aid transparency, Christie’s website has included results from its online-only art auctions, which had an average lot price of $7,305 (up from $6,047 in 2016).  This information is not provided by competitors such as Sotheby’s and Paddle8.

Although results achieved for resold artworks can be accessed via subscription websites such as Artnet and Artprice, the “primary market” prices charged by galleries for new artworks by contemporary artists remain private with “many dealers regarding them as trade secrets available only to insiders.”

A new app started in 2016 named Magnus seeks to disrupt the art market and make it more transparent.  In use, the smartphone user simply aims their device at a particular artwork in a gallery or fair and visual recognition technology rapidly provides auction and dealer prices for the specific artist.  In such way, it is said that Magnus works for art as Shazam, the mainstream song-identifying app, works for music.  The new app’s database stores about 10 million prices, which are compiled through crowdsourcing, and 10 percent of which are from the primary market.  The app is said to be especially strong at art fairs with estimates that it identified around 80 percent of the prices at events such as Art Basel.

It will be interesting to see how the art market engages the next generation of art collectors and buyers.  The recent developments in the digital space described above seem like a solid start.



The Boston Museum of Fine Arts has added a new employee to its roster, a Weimaraner puppy named Riley.  Riley will patrol the gallery on a quest to locate insects or other pests that can damage fine art and tapestry. Unfortunately, Riley will not be visible to patrons.

It will be interesting to hear if Riley’s addition to the museum helps to preserve the artwork and prevent damage from insects and pests.

In recent art world news, the Board of Directors of the Isabella Stewart Gardner Museum in Boston has voted to extend the $10 million reward for information leading to the return of 13 art works (valued at half a billion dollars) that were stolen nearly 30 years ago.  The reward was to have reverted to $5 million at the end of last year had it not been for the Board’s recent vote.  The extension of the reward was done in the “hope of enticing tips that would help recover works by Rembrandt, Vermeer, Degas, Manet and others that were stolen in the world’s largest unsolved art heist.”

The theft occurred just after midnight on March 18, 1990 when two thieves appearing as Boston police officers deceived museum guards in gaining access to the building, restrained the guards, and then left nearly an hour and a half later with the valuable art works.

While there have been multiple suspects throughout the years and the Federal Bureau of Investigation has said in 2013 that agents had determined who the thieves were (but did not reveal their names), and added that the thieves were no longer living, the statute of limitations has run out on the theft in 1995, but the investigation is ongoing.

Isabella Stewart Gardner, the woman for whom the museum is named, was a leading American art collector, art patron, and philanthropist, who passed away in 1924.  Gardner had stipulated in her will that “the vast art collection in her home, modeled on a 15th-century Venetian palace, remain on permanent display exactly as she left it.  Nowadays empty gilded frames that held some of the works that were taken in 1990 still hang on the walls.”

For further information about the theft and Isabella Stewart Gardner, see the following articles, Learn About The Theft and An Unconventional Life, via the Isabella Stewart Gardner Museum website.