Papering the House for New York City Opera’s Season Opener?

Rufus Wainwright, in City Opera's cheesy publicity photo

Whoever thought Rufus Wainwright could bring New York City Opera back from the dead seems to have placed a bad bet.  Its first production of the season is tonight, but it's had trouble filling even a modest-sized theater for Wainwright’s “Who Are You New York?”

Last night Lincoln Center, City Opera’s home until it ignominiously pulled up stakes for a nomadic existence last spring – having been driven into the wilderness by gross financial mismanagement -- sent out an email blast offering tickets for the one-night-only performance at a whopping 50% off. 

The performance is in the Rose Theater on the Lincoln Center campus, which seats only about 1100, or less than half the capacity of the theater City Opera used to perform in.  To put this into perspective, the Rose is somewhat smaller than your average Broadway theater. 

It’s mystifying that “Who Are You New York?” is a City Opera production -- it isn’t an opera at all but rather the title of a show that will include a song cycle for four voices and a performance by Wainwright himself, who’s best known as a songwriter and singer and not as a composer. 

Maybe that’s part of City Opera’s problem – it doesn’t know who its audience is, only how to shrink it.  The cheesy photographs it’s using to promote its productions can’t be helping.

The ostensible reason for the Wainwright one-off is to celebrate the U.S. premier of his first opera, “Prima Donna,” which City Opera will be presenting in Brooklyn in February. 

What were they thinking?  New York’s influential classical music critic, the Times’ Anthony Tommasini, pretty much panned the opera’s 2009 world premier in Manchester, writing, “As a longtime admirer of his music, I wish I could report that ‘Prima Donna’ fulfilled his ambitions for writing a fresh and personal new opera.”

And that’s gentle, considering that Bloomberg’s critic wrote that he had tears of joy in his eyes at the opera’s conclusion: “the joy sprang . . . from relief that it was over."

New York is still waiting for a compelling reason to support this company, which is barely on life support.  Television station NY1 reported yesterday that City Opera turned down its musicians' offer to work for free in return for health benefits.  Apparently, the company couldn't afford even that. 

City Opera's publicity photo for Mozart's "Cosi fan tutti"

 Text Copyright 2011 Laura Gilbert

Restitution Follies: 217 Years On, Belgium Claims a Rubens Seized by Napoleon, Days After France Recaptures a Painting “Stolen” in 1818

The latest player seeking restitution of art seized in long-ago wars is Belgium.  It wants France to return a painting by Peter Paul Rubens that was part of Napoleon’s vast art plunder. 

Rubens, "The Triumph of Judas Maccabee"

The painting, “The Triumph of Judas Maccabee,” was seized in the revolutionary wars in 1794, taken to Paris, and in 1804 sent to the Museum of Fine Arts in Nantes, when Napoleon distributed spoils of war to various provincial museums.  On Wednesday, the Parliament of the Federation of Wallonia-Brussels unanimously passed a resolution calling on the Culture Minister to “undertake all useful steps” to negotiate with France for its restitution.

“The Triumph of Judas Maccabee” is half of a diptych commissioned from Rubens by the Cathedral of Tournai in the 1630s.  Napoleon also stole the other half, but it made its way back to the cathedral in 1818.  Belgium wants to reunite the two parts in their original setting.

The prime proponent of the resolution, Senator Richard Miller, stressed that Belgium is only asking for the restitution of this one painting – at least for now -- and not the thousands of artworks that were taken during the Napoleonic wars.  "It would be foolish to think we could get everything back at once," he told the Agence France Presse.  "Still, we could try to get them back one item at a time, each case based on cast-iron arguments."

The "Black Africa" Issue

Miller seems aware that Belgium’s demand on France could come back to bite it, but in  his statement to Parliament, which is reprinted on his website, he nevertheless said it was not a matter of “our Museum Terveuren running the risk of having to return all that belonged to Black Africa.”

The Museum Terveuren is the Royal Museum for Central Africa, which was started, its website explains, in the late 19^th century when King “Leopold II fulfilled his dream:  he obtained a colony for Belgium.”  And obtained, apparently, untold numbers of artworks and artifacts besides.

Tournier, "Christ Carrying the Cross"

Chances of France giving up an altar-sized Rubens that is in a public museum?

Not good, if you consider that France itself had earlier in the week seized a painting by Nicolas Tournier, “Christ Carrying the Cross,” being shown by English gallery owner Mark Weiss at a Paris art fair.


It’s generally understood that Weiss at all times acted in good faith and without knowledge that he owned a painting that had vanished into thin air a couple of centuries before.  The Augustins Museum’s chief curator -- who had organized a Tournier retrospective in 2001 -- had himself not recognized it even though he had seen photographs of the work before its display in Paris.
 
“Although it sounds incredible, I saw no connection to the museum painting. It was not until much later, after Weiss purchased it, following several messages from some of my colleagues, that I understood that this was the canvas that had disappeared from the museum after 1818,” he told La Tribune de l’Art.

"Inalienable" Art

Nevertheless, France claimed ownership.  "This was the property of the French state that was deposited at the Augustins Museum in Toulouse and was stolen in 1818. It is a non-transferable work," the French Culture Ministry said.

“Works in French public collections are inalienable and imprescriptible . . . This means that an object which enters a museum cannot be taken away, in any way, forever in time,” La Tribune de l’Art explained, writing about the Tournier.

Presumably, the same principle would apply to the Rubens in the museum in Nantes.

For her part, Blandine Chavanne, director of the Nantes museum, said, “Be aware that UNESCO has made a decision in saying that all the works in museums acquired before 1970 were considered property of the museums,” the AFP reported.

The museum has regularly loaned out the Rubens, including in to the cathedral at Tournai, a policy it may want to revisit.

Images: Rubens taken from Musee des Beaux Arts, Nantes, website; Tournier pulled from the internet.

Text Copyright Laura Gilbert 2011

The Cariou v. Prince Appeal Is Looking Even More Important, as Google and Museums Submit Briefs to the Court

Richard Prince, "It's All Over"

Cariou v. Prince is shaping up as the most significant copyright case in the visual arts in some time, as Google, nine major museums, and the Andy Warhol Foundation weighed in on the case with “friend of the court,” or amicus, briefs filed this month with the Court of Appeals.  

The losers in the federal court – art star Richard Prince and mega-dealer Larry Gagosian and his gallery –  are challenging whether the judge used the correct legal standard when she ruled that Prince infringed Patrick Cariou’s photographs when he used them, without Cariou’s permission, in a series of his own paintings called “Canal Zone.”  

Cariou photo used in "It's All Over"

 

 

The U.S. District Court judge here in New York said that in order to be “fair use” and hence not infringing, the Prince paintings must “in some way comment on, relate to the historical context of, or critically refer back to” Cariou’s photos.   

Prince’s work failed this test, the court found, in part because Prince had testified that he didn’t give a rat’s ass what Cariou’s work meant.  (Background on the case can be found here.)

On appeal, Prince and the Gagosian defendants argue that the District Court was wrong and fair use does not require the new work to comment on the original.  Google, the museums, and the Warhol Foundation all agree.

Google's Stake 

Google has a lot at stake in fair-use cases.  To cite just one reason, it wants to digitize – i.e., copy – millions of books.  A suit between Google and the Authors Guild over whether this plan of Google’s violates writers’ copyright is currently pending in the District Court in New York, which will be required to follow any decision reached by the Court of Appeals in the Prince case. 

Google, in its brief, says it couldn’t care less whether Prince’s work is “fair use or foul.” It just doesn’t want the Court of Appeals to say anything that would prejudice the copying it does in the digital realm, and it thinks any comment requirement could do just that.

The Warhol Foundation – now that’s an interesting situation.  It’s a client of the same high-powered law firm, Boies Schiller, that also represents Prince, and Boies Schiller’s high legal fees – reportedly $7 million – helped put the foundation’s controversial Authentication Board out of business.  The firm  currently represents the foundation in an attempt to get its insurer to pay those giant fees.

Warhol and Copyright

The foundation’s brief, which was not written by Boies Schiller, essentially repeats the defendants’ arguments – no surprise there, given the law firm connection -- but it also throws in the First Amendment, arguing that the District Court decision is a hindrance to the expressive rights of artists and the public.

Andy Warhol, "16 Jackies"

What makes this brief especially rich is that Andy Warhol himself successfully negotiated copyright law without any apparent detriment to his expression.  Early on he faced copyright suits over some of his most famous images, including his Flowers and his Jackie Kennedy.  Warhol settled these suits and later changed his practice to ask permission from copyright owners.  His Mickey Mouse even bears a shared copyright of both the Warhol Foundation and Disney.

Nine museums – including the Met, MoMA, and the Art Institute of Chicago, powerhouses of merchandising and guardians of copyright – along with the Association of Art Museum Directors, submitted a joint brief concentrating on the court’s finding the Gagosian defendants liable as infringers, because, among other reasons, they knew that Prince used the work of other artists but they didn’t investigate the legality of the “Canal Zone” series.

“If broadly applied, these liability standards could threaten non-profit art museums that hold or display works of Appropriation Art,” the brief argues. That “would place a severe burden on art museums and could deter them from displaying or acquiring an important body of art.”

Dan Brooks, Cariou’s attorney, said the museums’ argument is “a parade of horribles that don’t really apply to them.”  As not-for-profits, museums are in a different category from commercial galleries.  “Their display of paintings is going to be found to be fair use,” he said.

Symbiotic Relationship

When asked why, if  their argument  was so weak, he thought the museums had filed a brief in support of the defendants, Brooks said they had “a close connection with the gallery and some of its artists.”  He pointed in particular to an email -- part of the evidence in the case -- in which a Gagosian staffer gives an instruction about the dinner after the opening of “Canal Zone”:

“Larry (Gagosian) would like the opening and dinner to be ‘kick ass’ so please invite celebrities/moma/gugg/whitney curators and other clients who will BUY his work.”

MoMA, the Guggenheim, and the Whitney all signed on to the brief.

Brooks described the relationship between the museums and the gallery as “symbiotic.”

Indeed, Gagosian is a power wheeler-dealer who has a hand in major museum acquisitions, and  the museums and the gallery lend each other artworks for special exhibits.  Last year’s Picasso and Marie-Therese show at Gagosian’s New York gallery, for example, had loans from MoMA, the Met, and the Guggenheim. 

In their own brief, the defendants argue that if the Court of Appeals finds that fair use requires the new work to comment on the original, Prince’s works do so.  A reasonable observer, they contend, can see that the “Canal Zone” paintings, with their drugged-up guitars players, are a “caricature” of Cariou’s placid portraits, even if Prince did not testify to that effect.

Brooks said this is “a new legal argument” about the meaning of Prince’s work.  The defendants had said “this isn’t parody” in the District Court, and now they say it is – “it’s a post hoc rationalization,” he said.  

Images: Prince and Cariou artworks taken from court documents.  Cariou's photograph Copyright Patrick Cariou.  Andy Warhol, "16 Jackies," taken from Walker Art Center website, Copyright 1999 Andy Warhol Foundation for the Visual Arts/ARS.

Text Copyright 2011 Laura Gilbert

Larry Gagosian Speaks – About Maguire and DiCaprio and What It Takes to Visit Richard Prince’s Studio

It’s notoriously difficult to score an interview with close-mouthed mega-art dealer Larry Gagosian -- so difficult that when the Wall Street Journal published an article about him last April, the fact that he had actually spoken with the reporter was almost bigger news than what he said.

Larry Gagosian

But he was compelled to answer questions under oath in Cariou v. Prince, the closely watched case that last March found him, his gallery, and artist Richard Prince liable for infringing photographer Patrick Carriou’s copyright.  That case is now on appeal, and this report is based in part on documents filed with the court on October 26, 2011.

Gagosian’s deposition, taken in October 2009, and documents that are part of the evidence have a couple of eyebrow-raising tales.  He testified, for example, that Tobey Maguire and Maguire’s best buddy Leonardo DiCaprio were interested in Prince’s “Canal Zone” paintings – the series that would later be found infringing – and “my recollection is they were going to buy one jointly.” 

“Is that unusual?” Cariou’s lawyer asked him. 

“Extremely,” Gagosian replied. 

The joint purchase was never consummated.

Gagosian also revealed that he only rarely has a written contract with his artists -- he doesn’t have one with Prince -- and that employees who close a sale get a commission that’s taken out of the gallery’s percentage of the buyer’s payment.

"Studio Visits Are a Major Seduction"

 The real meat, though, is the inside look at the callous, sometimes contemptuous attitude of Gagosian and his staff toward the rich, famous, and beautiful who have made him so successful. 

Several weeks before “Canal Zone” was due to open, one of his salesmen told Gagosian that he was meeting with a client who had already bought two paintings by Prince.  (The “Canal Zone” works sold for as much as $2.43 million.)

“I'm trying to sell him more Prince . . .,” the email said. “Is there any way to visit Richard's studio in Rensselaerville the week of November 10? Studio visits are a major seduction for this guy.”

“Only if he buys another painting,” was Gagosian’s response.

There was a flurry of emails about the guest list for a dinner the night “Canal Zone” opened, including this emphatic instruction from one gallery staffer to 16 others:  “Larry would like the opening and dinner to be ‘kick ass’ so please invite celebrities/moma/gugg/whitney curators and other clients who will BUY his work.”

Models "Look Good at a Dinner Table"

Gagosian himself had the final say over who was invited, and his personal assistant at a couple of points requested further information.   “Before Larry approves this list he would like to know if you have sold any art to these people.  If so, he would like to see proof,” reads one email. 

The assistant later asked who a couple of invitees were, and received this reassuring answer:  “Their parents are the wealthiest people in Holland, worth 5 billion.”  “ok,” she emailed back.

Cariou’s attorney asked Gagosian why there were so many fashion models – the guest list included the likes of Elle Macpherson, Kate Moss, Christy Turlingon, and Lauren Hutton. 

“They look good at a dinner table,” said Gagosian.

Q. And do you also want to include celebrities to generate some buzz for the show?

A. Yeah –

Memory Lapse

Memory lapses are not uncommon at a deposition, but they are sometimes -- although one can't say that's necessarily the case here  -- a cover for avoiding an answer that could harm one’s case or reputation.

Gagosian couldn’t remember if he had given Prince – who at the had been showing with Gagosian for only a few years -- any payment to join his gallery. “I think not,” he testified.  “But my memory’s not perfect.”  Of course, Gagosian does pay Prince 60% of the sale price of his work, whereas the usual rate, at least at other galleries, is 40-50%.

Gagosian could not remember, either, whether he had ever been a party to a lawsuit, even though, among other cases he's been involved in, a few years previous he’d settled a highly publicized suit in which the IRS alleged that he and a couple of associates had set up a shell company to avoid taxes. The IRS sought $26 million in unpaid taxes and penalties.  Gagosian and co-defendant Peter Brant – art collector and Gagosian client -- made the case go away by paying a reported $9.1 million.

“Have you ever been a party to a lawsuit before?” Cariou’s attorney asked.

A. I don't know.

Q. Okay. Have you ever been a plaintiff in a lawsuit?

A. I don't think so.

Q. Have you ever been a defendant in a lawsuit?

A. Not that I recall.

With some prodding, Gagosian remembered something, saying, “You know, I don't know if they were lawsuits actually. One was -- I'm just trying to remember if they were lawsuits or why I was -- I don't recall accurately.”

Maybe if you sell $1 billion of art a year – an estimate the Wall Street Journal quoted in April – you can afford to be oblivious to legal claims against you.  Gagosian said, at any rate, that he’d seen neither the complaint nor the answer in Cariou v. Prince.

Image pulled from the internet.
Text Copyright 2011 Laura Gilbert

Richard Prince Testifies He Lied to the Press & He Bought the Rights to Use a Notorious Photograph of Brooke Shields

Richard Prince

A couple of chinks in Richard Prince’s versions of truth are emerging from documents filed with the Second Circuit Court of Appeals on October 26, in addition to his having been found liable last March for infringing photographer Patrick Cariou’s copyright.  

If Prince’s sworn statements can be believed, he sometimes lied to the press, and the outlaw persona he’s peddling as an artist who just takes whatever image he wants can’t always be trusted. 

In his October 2009 deposition in the case of  Cariou v. Prince, which is currently on appeal, Prince was asked about various statements he had made to the press.  Some of those statements, he testified, weren’t true, although he preferred to describe his lying as being “creative.”  

"I Made That Up"

Here’s an example.  The questioner is Cariou’s attorney, Dan Brooks.  Hayes is Prince’s attorney, Steven Hayes.  Bart is Hollis Gonerka Bart, the attorney for co-infringers Larry Gagosian and the Gagosian Gallery.

Q.  Do you have your own airplane?

A.  No.

Q.  You’re taking flying lessons though, right?

A.  No, I made that up.

Q.  Okay.  All right, you said –

A.  I make – I say a lot of things –

Q.  That aren’t true?

A.  That aren’t – well, no.  It’s more about – it depends upon the interviewer.  I try to be creative, let’s put it that way.

Q.  Okay.  So when you said you were taking flying lessons in your own airplane, that was not true?

A.  I was being creative.

Q.  Which means it wasn’t true?

Mr. Hayes:  Objection to the form of the question.  It’s been asked and answered.

A.  I would leave that up to the audience.  I mean I don’t want to tell – I don’t want to say whether or not – I might – I might be flying, taking flying lessons.  I don’t see the relevance of that.

Q.  That’s fine.  But you understand you’re under oath right now?

A.  Oh.

Q.  Do you understand that?

A.  Yes.

. . .

Ms. Bart:  He certainly was sworn in at the beginning to tell the truth –

Mr. Brooks:  I understand.

Ms. Bart:  -- and he agreed to do that.

Mr. Brooks:  Hopefully that’s what we’ll get.

Prince was also asked about the accuracy of a December 2007 report by Randy Kennedy in the New York Times that “Mr. Prince has spoken of receiving threats, some legal and some more physical, from his unsuspecting lenders.” 

Q.  Now, is it true that you starting receiving legal threats at some point?

A.  No, that’s probably something that I just made up.

Paying the Price

Prince has cultivated a reputation as an outlaw who takes whatever image he wants without asking anyone’s permission or paying any fees to the copyright owner.  It turns out that reputation is not wholly accurate, at least according to his deposition testimony.

Prince's "Spiritual America"

One of his most notorious works – it was pulled from a 2009 exhibition at the Tate because it could possibly violate obscenity laws -- is his photograph of Garry Gross’s photo of a 10-year-old naked Brooke Shields in a steamy bathtub, made up like a woman in her sexual prime.  It has been reported that he paid Gross a $2000 out-of-court settlement.  

Prince, though, testified that he bought the rights to the image.  Is what he termed a “concession” in fact the price he was willing to pay to show the work at the Whitney Museum here in New York?

Here’s the testimony:

Q.  Did Garry Gross ever threaten to sue you?

A.  No, he never did.

Q.  Did you ever reach an out-of-court settlement with Garry Gross?

A.  No.

Q.  You’re positive? 

A.  I’m positive.

As far as I can tell, I’m positive.  I actually – in 1992 I guess that’s what they’re talking about, your last quote here (from the Times article) – I mean Mr. Kennedy is talking about a 1992 discussion at the Whitney, and I believe at that time I bought the rights to the image for $2000.

Q.  From Gary Gross?

A. Yes.

Q.  Because he threatened to sue you?

A.  No.  I was told by the Whitney that I – in order to exhibit that image I made a concession, or they advised me that it would probably be best that – and I believe I sort of reached out to him at the time.

Because up until then, that image that I rephotographed from that pamphlet that he had produced in 1983, I made one copy, an 8 x 10, and I gave it away.  And it wasn’t until 1992 that it came back into the limelight, and I think my attitude changed a bit and I was sort of willing to become more part of the process I suppose.

Prince produced the photograph in an edition of 10 with two artist proofs.  One of the ten was sold at auction in 2003 for $372,500.

Images pulled from the internet. 

Text Copyright Laura Gilbert 2011

In Richard Prince Copyright Case, Who Bought the Infringing Paintings and How Much Did They Pay? EXCLUSIVE

Richard Prince, "Specially Round Midnight," purchased by Steven A. Cohen for $2.43 million

In this reporter’s ongoing investigation into Cariou v. Prince -- the court case that found appropriation artist Richard Prince, Larry Gagosian, and the Gagosian Gallery had all infringed photographer Patrick Cariou’s copyright – names and dollar amounts are becoming available.   

The U.S. District Court – whose decision is being appealed, of course – has enjoined the buyers from displaying the works in public, and that order stands.

Copyright experts and even Prince’s own attorney think that injunction makes it all but impossible for these collectors to sell the paintings.  Their current value is thus pretty close to zero.

According to documents filed in the Second Circuit Court of Appeals on October 26, leading the list of purchasers of what the court termed “unlawful” paintings is none other than Steven A. Cohen, one of the biggest collectors of contemporary art and head of controversial hedge fund SAC Capital Advisors.

Steven A. Cohen

SAC, which has for years been publicly remored to have engaged in unlawful activity of its own, has provided investors with remarkably consistent and high above-market returns, even in down markets.  The Feds suspect hanky-panky, and recent news reports in the Wall Street Journal and elsewhere indicate that an investigation is ongoing.

For Prince’s work, Cohen apparently paid the most of any buyer, purchasing “Specially Round Midnight” for $2.43 million.  Easy come, easy go?

Other buyers include Michael and Lise Evans, who bought “Mr. Jones” for $2 million, art dealer Jeanne Greenberg Rohatyn, collector Adam Lindemann, and shipping magnate Philip Niarchos.

What follows is a list of works declared unlawful and sold through February 2009 and the prices paid:

“Specially Round Midnight,” $2.43 million

“Mr. Jones,” $2 million

“Escape Goat,” $2 million

“Canal Zone,” $1.2 million

“The Other Side of the Island,” $1.2 million

“Naked Confessions,” $450,000

“Untitled (Rasta)," $400,000

One buyer, whom I have not yet been able to identify, wanted to buy three paintings – “Back to the Garden,” “Cookie Crumbles,” and an untitled work.  But he had cash flow problems, so he traded a Richard Serra sculpture for them.  Gagosian Gallery, which is Prince’s dealer, got the sculpture, the buyer got the paintings, and Prince got money.

In addition, Prince traded four of his “Canal Zone” paintings for a work owned by Gagosian, “Dying and Dead Veteran” by Larry Rivers, estimated to be worth between $3 million and $4 million.

Stay tuned, as I’ll be breaking a lot more news over the next week.

Two images from Patrick Cariou's "Yes, Rasta" that Prince used in creating "Specially Round Midnight" (top)

Image of Cohen pulled from the internet.  "Yes, Rasta" images Copyright Patrick Cariou.

Text Copyright 2011 Laura Gilbert

In Case that Triggered Russian Embargo on Loans to U.S. Museums, Chabad Now Says It Wants to Negotiate; Russian Ship Refuses to Land in San Francisco, Citing Dispute

This story of the latest developments in Chabad v. Russian Federation was up briefly and then purchased exclusively by the New York Observer (it was reported and written by me).  Read it here.