Damien Hirst’s 'The Physical Impossibility of Death in the Mind of Someone Living.' (AFP Photo/Doug Kanter)

Unlike many of the city’s galleries, New York’s museums made it out of Hurricane Sandy relatively unscathed. But even as the storm raged, they were quietly facing another battle—
in court.

Blockbuster exhibitions like the Guggenheim’s “Picasso Black and White,” the Whitney’s “Yayoi Kusama” and the Met’s “The Steins Collect” could be a thing of the past if a decision in a lower-court case involving textbook sales is upheld by the Supreme Court. On Oct. 29, the court, which was open despite the hurricane, heard oral arguments in Kirtsaeng v. John Wiley & Sons, a legal battle over whether copyrighted books produced abroad can be imported to the U.S. and resold. Though the case involves textbooks, it also implicates a section of the copyright law that applies to Picassos and Brancusis. The case started out in 2008 in federal district court in New York. Supap Kirtsaeng, a foreign exchange student at Cornell, found that his textbooks could be purchased more cheaply in his native Thailand, so he asked friends to buy the books there and ship them to New York. He then started selling them on eBay and, when he had racked up $37,000 from those sales, the textbooks’ publishers, John Wiley & Sons, filed suit. Mr. Kirtsaeng was found guilty of willful infringement and was asked to pay $75,000 for each of the eight Wiley textbooks he sold copies of, for a total of $600,000. Mr. Kirtsaeng appealed that decision, and in August 2011, the United States Court of Appeals for the Second Circuit found him guilty as well. In the meantime, in July 2012, the Association of Art Museum Directors (AAMD) and a group of 28 American museums including the Solomon R. Guggenheim Foundation, The J. Paul Getty Trust, the Museum of Modern Art and the Whitney filed a brief as “friends of the court,” in support of Mr. Kirtsaeng.

Mr. Kirtsaeng’s attorneys invoked the “first sale doctrine,” which can be found in section 109(a) of the Copyright Act, which limits certain rights of the copyright owner. The doctrine enables an owner of a copy to buy, sell, loan or borrow it without getting the permission of the copyright owner. (A “copy” under the Copyright Act doesn’t mean a pirated work or a work that is not original; it means the material object in which the copyrighted work is first fixed—so a copy could be an original work like a Damien Hirst shark sculpture, or it could refer to any of the millions of paperbacks of Fifty Shades of Grey published by Vintage.) But John Wiley & Sons, the publisher, maintains that the doctrine does not apply to works made abroad.

While this case turns on section 109(a) of the statute, which allows the owner of a “lawfully made” copy to resell it, the same language appears in another section, 109(c), which allows the owner of a “lawfully made” copy to display it—and has for years been giving museums the right to show the artworks that they buy and borrow.

“Art museums have long depended on Section 109 of the Copyright Act,” the brief states, “to develop and display their permanent collections and to assemble and present special exhibitions of art ... without having to obtain the copyright owner’s permission.” Displaying, acquiring, borrowing and loaning art are at the core of what museums do.

According to the decision by the Second Circuit, “lawfully made under this title” means lawfully made in the United States. If the decision were allowed to stand, the museums argue, museums may lose their right to display paintings made abroad, like Picasso’s Les Demoiselles d’Avignon, Edvard Munch’s The Scream and even those paintings by American artist Cy Twombly that were made in his studio in Gaeta, Italy.

“Museums want the certainty that has been there for generations,” Stefan Mentzer, the attorney representing the museums on their brief, told The Observer. “There could be some serious unintended consequences if the lower court’s decision were to be upheld.”

ROBERT CLARIDA, A PARTNER at Reitler Kailas & Rosenblatt LLC and the author of Copyright Law Deskbook, said that while none of the parties in the suit intended for this to happen, it’s a very possible consequence. “No one pursuing this 109(a) resale claim is thinking about ‘Oh, well, you know there’s also identical language in another part of the statute, and if you read it the same way, it’s going to have this crazy result.’”

If Wiley gets its way in the Kirtsaeng case, every museum that hangs a foreign-made work of art on its walls would be a potential infringer. Copyright owners could demand royalty payments—which museums would have to manage on a case-by-case basis—or even insist on control over curatorial decisions.

“Let’s say a show was being put together that had some ideological content that the artist didn’t like or the artist’s estate didn’t like,” said Mr. Clarida, discussing some of the more extreme possibilities he could imagine. “They might then try to say, ‘You can’t put my work in your show because it makes me look bad or makes me look like I’m affiliated with some sort of ideology that I’m not fond of, and I want you to take that piece off the wall.’”

The results could be disastrous for the museumgoing public. According to the museums’ brief, in 2008, “an estimated 51.1 million visitors, or 23 percent of American adults, attended an art museum or gallery in the U.S.”

In any event, the museum issue may have to be hashed out as the case proceeds. According to someone close to Wiley who asked to remain anonymous, the publishers don’t think the court will get to it. “This isn’t a case about museums and what museums can display or not display,” he said. “So it would be an issue for a court in a later case to interpret the museum provision.”

The museums could always resort to invoking fair-use defenses, for educational use or public edification.

Tom Allen, president and CEO of the Association of American Publishers, sees the issues at stake in the Kirtsaeng case and those presented by the museums as “apples and oranges.” The display of an artwork in a museum, he said, is very different from making 10,000 copies of a work that is destined for a particular market somewhere else in the world. Furthermore, the “parade of hypothetical horribles” (or potential negative consequences) in the museums’ brief is, he said, highly unlikely to occur. “Frankly,” he told The Observer over the phone, “I’m not certain what led the museums to write a brief like this.”

So what were some of these “hypothetical horribles”? As Justice Breyer summarized during the oral arguments on Oct. 29, “millions and millions of dollars’ worth of items with copyrighted indications of some kind in them that we import every year; museums that buy Picassos that now, under our last case, receive American protection as soon as that Picasso comes to the United States, and they can’t display it without getting permission from the five heirs who are disputing ownership of the Picasso copyrights. Those are some of the horribles that they sketch. And if I am looking for the bear in the mouse hole, I look at those horribles, and there I see that bear.” The issue of whether or not 109(a) applies to foreign-made goods has bubbled to the surface in the past few years. In a 2010 case involving Costco and the Swiss watchmaker Omega—in which Costco bought copyrighted watches that were imported and resold—the Supreme Court just missed an opportunity to address the issue when it was split 4-4 (Justice Elena Kagan had to recuse herself because she had signed the legal brief for the government in that case). In this case, Ms. Kagan may cast the deciding vote.

Whether the court decides that the law does or doesn’t apply to works made outside the U.S., the museums will still have at their disposal the fair use doctrine, though that is less reassuring, as it would have to be applied case by case. They may also lobby Congress to change the law (which is not that easy to do), or work with artists and estates to prevent the existing law from being carried out in a draconian way. Whether or not this case is about museums, the impact of an opinion by the country’s highest court that even touches on the issue can be enormous for future cases that have to grapple with similar issues. As for the museums stepping in to raise the issue, as Mr. Clarida put it, “If they don’t, who will?”

editorial@observer.com

Sotheby's. (Courtesy Getty Images)

Sotheby’s announced today that it lost $32.6 million in the third quarter, which ended Sept. 30, compared to a $29.7 million loss in the same period last year. It attributed part of the increase to an $11.6 million tax benefit in 2011 that didn’t occur again this year.

The slightly bigger loss amounts to $0.48 per share as opposed to last year’s $0.44 per-share loss, as per Bloomberg, which noted it was “in keeping with the 49-cent average loss forecast by six analysts.”

Conventionally, Sotheby’s sees a loss in the third quarter since auctions and private sales during the summer months are few and far between, with auctions during this period comprising between 7 to 10 percent of annual sales. The auction house’s biggest sales happen in the first and fourth quarters, like tonight’s Impressionist and modern art sale and next week’s contemporary art evening sale.

Nonetheless, there were some “bright spots” as per Sotheby’s president and CEO Bill Ruprecht, who spoke to the press in a phone conference this afternoon. Revenues were up 18 percent in the third quarter to $68.5 million, fueled by a 50 percent improvement in private sale commission revenues and a 56 percent increase in finance segment revenues.

Mr. Ruprecht also noted that sales in London last month, brought in record prices especially in contemporary sales, where Sotheby’s made “a high water mark for a picture by a living artist” when it sold Gerhard Richter’s painting Abstracktes Bild (809-4), for $35 million. “Great works of art will continue to fetch good prices.”

Courtesy Seven.

Seven, the art fair collective comprised of seven New York and U.K. galleries, has announced that when it returns to Miami, Dec. 4-9, it will inhabit a new 25,000-square-foot warehouse in the Wynwood district. The galleries—BravinLee Programs, Hales Gallery, Pierogi Gallery, Postmasters, P.P.O.W, Ronald Feldman Fine Arts and Winkleman Gallery—will be showcasing multiple video rooms and a 50-foot-long Salon Wall. Here’s a rundown of what they’ll be bringing.

BravinLee Programs will show new paintings by Los Angeles artist Laura Krifka, who’s having her New York solo debut at the gallery in the spring, and a preview of their show of Tom Sanford's “100 Little Deaths,” watercolors of celebrities who died in 2012. Its editions program will feature a new rug by Christopher Wool.

East London’s Hales Gallery will show works by Frank Bowling, Aubrey Williams and Hew Locke, three artists who emigrated from Guyana (South America/Caribbean) to Great Britain and represent three generations of the U.K.’s black post-war artistic legacy.

Pierogi Gallery will present pieces from Kim Jones's Averno series, a large-scale Sumi ink drawing by Dawn Clements inspired by the film East Side, West Side and recent work by Darina Karpov, John O'Connor, Ward Shelley and Jonathan Schipper.

Postmasters will feature works by Holly Zausner, Federico Solmi and Sally Smart—artists who combine film and video with collage, painting and photography. There will also be new works by William Powhida, Jennifer and Kevin McCoy and Eva and Franco Mattes among others and will introduce “moveable sculpture-paintings” by Tatiana Berg.

P•P•O•W will show an installation by Dutch artist Melanie Bonajo including some of her recent photographs. Ms. Bonajo will also collaborate in a live performance with Icelandic artist Joesph Marzolla on Thursday, December 6. Other artists featured will include Bo Bartlett, George Boorujy, Robin Williams and David Wojnarowicz.

For its third consecutive year, Ronald Feldman Fine Arts will be showing the work of artists the gallery represents.

Winkleman Gallery will present an installation of Leslie Thornton's film and video series, Peggy and Fred in Hell. The show will be a preview for the new archival restoration of this seminal series, which has been 30 years in the making.

Hearn and de Land. (Courtesy The Pat Hearn and Colin de Land Cancer Foundation)

The Center for Curatorial Studies at Bard College, in Annandale-on-Hudson, N.Y., announced today that it has acquired the archives of Colin de Land’s American Fine Arts gallery and the Pat Hearn Gallery. The acquisition of the archives from the estate of de Land, who died in 2003, at the age of 47, was made possible by the support of collectors Marty and Rebecca Eisenberg and Howard and Barbara Morse.

De Land, who was married to Pat Hearn (who died in 2000, at the age of 45), got into art dealing when he offered to sell a Warhol work for a neighbor on the Lower East Side who needed to buy drugs. It was the perfect start for the risk-taking, anti-commercial dealer, who looked like a character out of a Jim Jarmusch film and nurtured an experimental band of artists at A.F.A. from 1986 until his death, including Cady Noland, Alex Bag, Mariko Mori and Dennis Balk. He's also showed the work of an artist named John Dogg, whom has been alleged to be pseudonym of de Land and Richard Prince.

After time in the East Village and SoHo, Hearn was one of the first dealers to move to Chelsea in 1995. According to critic Roberta Smith, writing for The New York Times, she “resembled a bohemian Holly Golightly.” She showed artists including Philip Taaffe, Monique Prieto and George Condo. De Land and Hearn also helped establish the New York Armory Show along with dealers Matthew Marks and Paul Morris.

The archives of A.F.A. and Pat Hearn Gallery include complete documentation of the exhibition history for both galleries, correspondence between the artists and their representatives, documentation of de Land’s educational courses for art collectors, as well as personal manuscripts, journals and memorabilia.

“The acquisition of Colin de Land's American Fine Arts, Co. and the Pat Hearn Gallery archives is a significant stepping stone in CCS Bard's efforts to establish a unique and vital research center for the contemporary arts,” said Ann Butler, director of the library and archives at CCS Bard, in a statement. “This acquisition gives us the opportunity to preserve this unique material and make it available for research; providing our students and others with an opportunity to study and historicize two central and innovative figures of the New York art world.”

Picabia’s drawing for the original ‘Relâche.’ (Courtesy Performa)

Performa has announced that its benefit party “Relâche” will now happen on Nov. 29. The party, an "an evening of performances and perpetual movement" that reimagines the 1924 Surrealist ballet Relâche by Francis Picabia and Erik Satie, was originally set to take place on Nov. 1 but had to be rescheduled due to Hurricane Sandy.

Ryan McNamara, in the role of Picabia, plans to update the ballet with aerial acrobats. A live orchestra will perform Satie’s original score. The event will have a dinner inspired by René Magritte (green apples) and Salvador Dalí, a screening of René Clair's Entr'acte with a piano piece for four hands and a tribute to Picabia and Satie by Dr. Todd Colby.

Co-hosting the event are Cindy Sherman, Andrea and Marc Glimcher, RoseLee Goldberg, Julie Blakeslee and John Spong, Toby Devan Lewis, Wendy Fisher, Amanda and Glenn Fuhrman and Jeanne Greenberg Rohatyn.

The attire is black and white haute couture and tickets start at $150 with proceeds benefitting Performa Commissions and Performa 13. A percentage of new ticket sales will go toward hurricane relief.

Check Performa's site for more details.

The pier at the end of Van Brunt Street in Red Hook. (Photo: Rozalia Jovanovic)

Last Thursday, two days after Hurricane Sandy made landfall, the pier at the end of Van Brunt Street in Red Hook was covered in bright red dust that blew gently in the cold wind. The dust, a paint pigment, was all that remained of some paintings by Mexican artist Bosco Sodi, who, like many of the artists in the studios on the pier, had lost both artworks and materials to the storm.

Mr. Sodi, whose canvases caked with brightly dyed pigment and natural fibers debuted at Pace Gallery last December, drove to his studio after the storm and couldn’t believe what he saw. “The waterline was above my eye level; everything was just washed away. All my paintings were piled in one corner. Some of them miraculously survived: they were placed on top of wooden boxes and they had just luckily floated. All my art materials disappeared. Almost one year of my work now is gone.”

The devastation at the galleries in New York’s main art district, on the far West Side of Manhattan, may be the major business story of Sandy and the art world, but there is another story—the destruction of artists’ studios. Aside from superstars like Jeff Koons, whose warehouse-like space on 29th Street and 11th Avenue seems to have escaped the storm’s perils, artists with studios in Manhattan tend to have them on upper floors. In Brooklyn, though, which fits more artists’ budgets, many have ground-floor work spaces, and they were hard-hit.

On the afternoon when bits of Mr. Sodi’s artworks were drifting around the pier, many of the heavy vaulted metal doors of the artist studios there were shut and latched, as there was a meeting at the Kentler International Drawing Space on central Van Brunt Street. Congresswoman Nydia Velásquez (of New York’s 12th Congressional District for Brooklyn, Manhattan and Queens) held the gathering to give residents, small business owners and local artists information, including lists of emergency contacts for federal and state disaster relief services, Con Ed and insurance companies.

But these weren’t necessarily going to help the artists, most of whom do not have insurance. “Everybody is applying for assistance from FEMA,” said Mr. Sodi in an email, “but I think nobody needs more debt right now. We just need all the facilities to get back to normal so we can start working again soon.”

Antonio Bilotta, an artist who works next door to Mr. Sodi, was in his studio on the pier, sweeping the floor around a few large sculptures of trees made from recycled pieces of wood, which had been soaked through with floodwater. He worried that after a few days, they might get bloated or chip.

“We worked all day to put everything like wood and plastic outside to stop the water,” he said. “But nobody can expect this storm, this disaster, I don’t think.” When he came to his Red Hook studio after Sandy from nearby Carroll Gardens, where he lives, he said, the water was gone but had left behind a huge mess.

“The water came up to here,” he said pointing halfway up a mixed-media work hanging on the wall. He grabbed a sponge and daubed it into a tire that is part of the artwork, soaking up water that had collected there. “One of the artists had a broken door, so everything went out with the sea and out on the pier. But what do you want to do?” he asked and laughed. “We’re starting again.”

STARTING OVER WILL TAKE a while for artist Dustin Yellin, also based in Red Hook. “[The water] started coming in by 5, 6 o’clock,” he said last Wednesday, standing outside his studio on Imlay Street wearing a blue beanie and glasses. “By 8, it was crazy. By 9:30, it was out of control. By midnight, it was slowly moving out. I saw everything flood away. It was the craziest thing I’ve ever seen in my life.”

Despite evacuation warnings, he stuck it out in his Red Hook studio to be close to his art. As a result he saw nearly all of it get destroyed as the nearby Buttermilk Channel surged, flooding both his 15,000-square-foot studio on Imlay Street and his other space, known as The Intercourse. About 100 feet away, it’s a 25,000-square-foot Civil War-era building he’d refurbished and opened as an artist residency just 10 months ago.

Nevertheless, he wasn’t despairing. “When you lose whatever you’ve built in your life and your world,” he said, “it only makes you and your community stronger.”

For other artists, living in the boroughs had its own challenges. In nearby Gowanus, painter Deborah Kass had just gotten back from the opening of her solo show at Pittsburgh’s Andy Warhol Museum. She wrote in an e-mail that she was “wondering why after the best weekend of my life I have to deal immediately with the storm of the century, shit from the Gowanus [Canal] floating into my backyard and trees falling on my house!! damn!” She added, “I was too high from the show to worry about the hurricane till about 4 in the morning when I shot out of bed and started taping plastic to the doors and fussing with the basement.”

Artist Simen Johan, whose studio is in Gowanus, was stuck in Madrid during the storm. Though his studio at the Gowanus Lofts, an artist studio building, was fine, his car—a black Subaru station wagon parked outside—was destroyed. Mr. Johan, who shows with Yossi Milo in Chelsea, is scheduled to drive to a residency in Virginia later this month, and the sudden loss of his car might stymie those plans and set him back another $5,000 to $9,000. “My super has security camera photos. The whole lot was like an ocean.”

Cleaning out the basement at Smack Mellon in Dumbo. (Photo: Rozalia Jovanovic)

OVER IN DUMBO, Suzanne Kim, the director of exhibitions at Smack Mellon, a nonprofit gallery and artist studio program, wore a garbage bag cinched at the waist and yellow gloves as she worked with a team of artists in matching garbage bag tunics to pick through materials like a pile of gleaming sports trophies that were laid out on tables outside the building. “Everything that’s non-porous is being cleaned,” she said. “What’s porous is being thrown out.”

“For hurricane Irene, we got six inches,” she said. So as soon as they heard forecasts of Sandy, they notified the artists in their studio program, a residency run out of their basement, and advised them to put everything up on tables or in the small office on the main gallery floor. On Sunday, with some artists still out of town, they moved as much art as they could into the office. But it was much worse than Irene, and all seven artists in the program lost irreplaceable work and materials.

The program also lost its media room, which had two full editing suites, as well as a wood shop and a metal shop. Thanks to the landlord—Two Trees Management—artists will be temporarily setting up shop at 111 Front Street, where they’ll be in good company among the other galleries in the building, such as Dumbo Arts Center.

Ms. Kim said that Smack Mellon didn’t have flood insurance due to the high cost of such insurance for areas anywhere in a flood zone. “Our broker told us some policies cost $5,000 for $15,000 worth of coverage. Being a nonprofit running as lean as we do, that’s not something that was going to work.”

Around the corner at Rabbithole, a set of basement studios in a hard-hit building, artist Donna-Maree Wilding was tearing up the sopping floorboards in the space where she runs a children’s workshop called Creatively Wild Art Studio, bundling them and depositing them in the Dumpster outside. She walked The Observer through the warren of studios and showed us how the water had trailed through the rooms, soaking everything in its wake. On top of that, she was getting complaints about the floorboards in the Dumpster.

Artists whose studios are in other parts of the city weren’t as worried. When we spoke with Jonah Freeman last week, he hadn’t yet been back to his studio in Ridgewood, where all of his supplies had been covered in plastic and the expensive materials moved to the center of the room. “I don’t know what’s going on over there, but I assume that that’s probably okay as well, unless there are some leaks in the roof. But it didn’t seem like there was a lot of water coming down from the sky. It seems like there were summer storms that were more dramatic than this.”

He rode out the storm in Williamsburg, watching movies and going to restaurants. “I’m on South Fifth, near the water, but there was no flooding, there was no nothing really. Everything shut down, but there was no real destruction of my life.”

Like Mr. Freeman, artist Olaf Breuning didn’t experience much damage, having escaped to his house in Upstate New York during the storm. Then he returned to Tribeca, where he and his wife Makiko lived for three days without power, visiting friends in “the light zone” to take showers and charge electrical gadgets. “I think I was very lucky after all, and not a victim of the whole situation,” he told The Observer over email. Spared from any loss, he addressed the storm’s aesthetic aspects. “I saw more the beauty in the change of situations. To realize one time more that without power we have nothing, especially in a city like New York. For me it was an experience.”

rjovanovic@observer.com

Sanders and Haq. (Courtesy ICI).

Jay Sanders and Nav Haq have been selected as the 2012 winners of the Independent Vision Curatorial Award by Independent Curators International (ICI). Mr. Sanders, curator of performance at the Whitney Museum in New York, and Mr. Haq, a curator at MuHKA in Antwerp, Belgium, were selected by Hans Ulrich Obrist, co-director of exhibitions and programs and director of international projects at the Serpentine Gallery in London. The award goes to emerging curators from around the world who have demonstrated “exceptional creativity and prescience” in organizing exhibitions, conducting research and for related writing. The biennial award comes with a $4,000 stipend to support the curators' independent practice.

The two were chosen from a shortlist of curators who were nominated by 15 internationally established curators, including RoseLee Goldberg, founding director of Performa, Sofia Hernández Chong Cuy, curator of contemporary art for Colección Patricia Phelps de Cisneros,
 Jens Hoffmann, director of the Wattis Institute for Contemporary Arts, and Matthew Higgs, the director and chief curator of White Columns.

Mr. Haq has previously been a curator at Arnolfini in Bristol, England, and Gasworks in London, and has curated many solo projects with artists, including Hassan Khan, Cosima von Bonin and Kerry Tribe. Mr. Sanders has been a gallery director at both Greene Naftali and Marianne Boesky in New York. Most recently, he co-curated the 2012 Whitney Biennial with Elisabeth Sussman.

"Each curator is establishing a unique voice, developing their practice by initiating projects independently, as well as having worked in a diverse range of institutions," said Mr. Obrist in a statement. "Nav Haq frequently takes us into the polyphony of art centers, creating shows and projects that broaden the scope of our thinking. Jay Sanders stays close to artists, gaining a strong understanding of an artist’s body of work—both emerging and overlooked—so that ultimately audiences can know an artist deeper.”

While the creation of the sculpture might be over, Mr. Koons is nonetheless still hard at work on crafting and maintaining his image. Despite having a broken wrist, which was in a cast (the result of a horseback-riding incident), he was charming and upbeat, much like a professional model, seeking the best angle, variously standing or sitting, feigning at turns surprise and conviviality, and even giving us some pointers: “Come around from here," and, "I can stand over there.”  Mr. Koons once again proved that he is his own greatest creation.

Pierson. (Courtesy Patrick McMullan)

Artist Jack Pierson will be honored at this year's Artwalk New York, a benefit art auction on Wednesday night, Nov. 7, co-chaired by Richard Gere, Carey Lowell and Coco Rocha that goes to support the Coalition for the Homeless. Photographer and New York City nightlife fixture Patrick McMullan will be the philanthropic honoree, and Alec Baldwin the honorary chair.

The event, which is being held at 82 Mercer Street in Soho beginning at 6:30 p.m., will feature a live auction, by Sotheby's senior vice president Aileen Agopian, of works by artists including Mr. Pierson, Cindy Sherman, Wade Guyton, Andy Warhol, Jenny Holzer and Ed Ruscha. There will also be a silent auction with artworks by Yoko Ono, Shepard Fairey, Olaf Breuning, Raymond Pettibon, Robert Longo and Pat Steir, among others.

Since Hurricane Sandy, the staff at Coalition for the Homeless—the country’s oldest direct service organization that helps homeless men women and children—has been out on the streets attending to the upsurge in need.

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