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More on the Fisk Decision

By Intellectual Property Law, Esq.

More on the Court of Appeals decision in the Fisk-O'Keeffe case from Diverse magazine here and the Wall Street Journal Law Blog here. The latter characterizes the decision as holding "that Fisk owns O?Keeffe?s work at this point and therefore is free to do what it wants with its 101-piece, $60-million collection," but, as noted yesterday, that isn't quite right. You can read the decision here, the upshot of which is that on remand Fisk must establish that "the change of circumstances subsequent to the gift render literal compliance with the conditions [of the gift] impossible or impracticable." If they are able to do that, then "the trial court is to fashion a form of relief that most closely approximates Ms. O'Keeffe's charitable intent." The "best interests of the people of the State of Tennessee," which the lower court seemed to get so hung up on, would not seem to factor into that analysis (there may be forms of relief that are better for the people of the State of Tennessee but do not closely approximate O'Keeffe's intent).

The decision also goes out of its way, it seems to me, to say that "it is apparent" that "the charitable intent motivating the gifts" was "to make the Collection available to the public in Nashville and the South" (emphasis importantly in the original). If that's the intent, then a deal whereby the University sells a 50% undivided interest in the Collection for $30 million to, say, a new museum in Bentonville, Arkansas, with the University retaining the right to display the Collection for six months of every year, starts to look pretty good. But again, that's step two. Before they get there, they first have to show that compliance with the terms of the gift has become "impossible or impracticable."

Full post as published by The Art Law Blog on July 16, 2009 (boomark / email).