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Let me state that I have immense respect for Harvard’s graduate programs and its stunningly talented corps of graduate students. As far as intellectual capital goes, the university is worth a fortune. They made a very serious error in focusing on rich children of foreign oil barons as opposed to admitting some spectacular economics students from UF recently, but that is another story and another foible.

By way of Alex Ross and Justin Davidson, I came across this news that RMJM (UK-based international architectural firm) donated $1.5 million to, and was matched by $500k in funds by, Harvard University School of Design (HGSD). The ostensible reason was to “stem a ‘brain drain’ in the design and construction industry.” Right. Here’s more:

“Huge growth is predicted in the number of buildings to be constructed over the next 25 years,” says RMJM Chief Executive Peter Morrison, “at a time when a high number of designers who graduate from leading design schools are opting to leave the profession. The loss of architects to other professions is a global problem. Who will design all those buildings?” [Emphasis added.]

You can’t be serious! Sounds good on paper, but let’s take a look at this shall we? In my estimation, it looks like RMJM wanted to make a donation to Harvard, get their name on something, make a splash in the community, so they donated to HGSD. Great. In negotiations over what the money should be used for, they determined that it should have some kind of social welfare bent. Terrific! But the best that they could come up with was a ridiculous farce based on an analysis of the market?

First of all, it’s not the case that we have too few architects. Although it is true that we would have more if we didn’t have useless certification programs and requirements, the market is at a relative equilibrium on this point because the requirements are still not as onerous as those for law and medicine. Additionally, schools all over the world, and especially in the USA, graduate many thousands of architects every single year. So let’s get real about what’s going on: contrary to their assertions, the market is supersaturated with architects! There are just plain too many of them!! That’s why so many graduates don’t practice in the field! This drives the price of their services down and means that they will tend to go to jobs where they may make more money — whether it’s “consulting” as the article odiously remarks or other professions and jobs is irrelevant.

Why can’t a firm donate money towards the development of a skill-based program, not those that have no bearing at all on reality? This donation has nothing to do with social welfare, and in fact, may well make it worse off.

A recurrent theme of this blog is that just because art gets mixed up with money doesn’t mean that the integrity of the art is in any way damaged or its authenticity lessened, or, in Marxist terms, that it becomes a “commodification-induced perversion of the core art form” though there are always those (Star Trek Voyager anyone?).

Now, I hope you have seen Project Runway. I think it is fun and inspiring, personally — and a big part of it is Tim Gunn. Every stressful environment should have someone like him. He is, by acclamation, a soothing, avuncular presence whose advice is often better heeded than ignored. ( And what a huge error Victorya committed by attacking him! I refuse to be drawn in, as I believe Victorya is quite a talent, but politically it is unwise… but what do politics matter in art? )

It turns out that Tim Gunn feels strongly about the nexus between art and commerce as well. According to the televised interview I watched with him the other night:

Gunn holds firmly to the belief of looking at fashion design through the lens of commerce. In other words, he believes in clothes that not only look lovely, but are wearable too.

Adam Smith bless you, Tim Gunn.

In my Art Law class, I once lambasted the notion of ‘the public interest’. No, I did not wield Margaret Thatcher’s argument that “there is no such thing as society” (a quote, incidentally, that has grown to such proportions that no one remembers the context… accordingly, I urge you to check that link). Rather, I attacked it because using that as a policy justification for an action, especially in the arts, will lead to specious results and open the door to twisted perversions of what is really in the public interest.

Think about it. One could make an argument that virtually anything is in the public interest and who will decide what truly is or isn’t? If two things are, who will decide which is more so in the public interest? (And is there such a thing as the public interest? There is no such thing as society! errr, uhhh… strike that….) This battle is not new. In property law, for instance, there has long been the problem of “eminent domain” in the US. Eminent domain is a power created by the Fifth Amendment to the US Constitution, stating: nor shall private property be taken for public use without just compensation. We recently had a much-maligned decision out of the US Supreme Court, Kelo v. New London, that ruled a taking given to private interests may a public use in certain situations, such as job growth and economic development, which are the main reasons eminent domain is employed in many areas around the US as local governments strive to change blight into prosperity. The majority in favor of the government power, four liberals and the moderate/conservative Justice Kennedy, supported the broadening of the public use concept while three conservatives and the moderate/conservative Justice O’Connor thought the distinction between private and public use had been grossly discarded. In other words, the liberals support the government having broad powers over property by way of the government determining what a public use is — essentially whatever it wants it to be. [I have terribly simplified this and encourage you to read the opinions and issues involved in detail. Between 65% and 93% of Americans reacted negatively to this decision and it says a lot about differing interpretations of government power.]

In Latin America, the social function doctrine holds similar sway. As I currently understand it, many countries such as Brasil and Colombia explicitly ascribe to the “social function” of property doctrine in their country’s respective constitutions. The doctrine is essentially that states hold the ultimate ownership, as sovereigns, to all the property in their territorial domains and they “allow” other owners so long as the use/ownership serves a social function. As you might suspect, this is an incredibly amorphous standard that could be abused. Who decides, after all? One scholar of the subject recently told me that thousands of pages could be written in a single book about the concept. I replied that it makes perfect sense because it can be twisted into anything you want it to be, and mean anything you want it to!

So I have wasted a lot of your time in coming to this point, but I write all this due to Donn Zaretsky’s comments regarding the O’Keeffe paintings at Fisk University. Recently, the court settled the issue by preventing Fisk’s sale of the works particularly on grounds of the public interest. While lauded by some, the legal reasoning is quite rightly lambasted by Zaretsky:

I’m still puzzled by this whole approach. I’m as in favor of the public interest as the next guy, but isn’t it also in the public interest that Fisk be able to field NCAA athletic programs? Isn’t it in the public interest to improve the chances of Fisk’s very survival as an institution? And how exactly are we supposed to measure the effect of various states of affairs on the public interest? If Fisk keeps the entire Stieglitz Collection, but has to cancel its NCAA sports program and make who knows what other sacrifices as a result of its precarious financial condition — what is that, like a “72” on the public interest scale? But if Fisk gets to keep 99 out of the 101 works in the collection (plus the right to exhibit one of the other two for four months every four years) but also ends up with $25 or 30 million to solve lots of its other problems — is that a “70”? Or, what if it gets to share ownership of the collection with a new museum in, say, Arkansas, so that it winds up with $30 million in the bank and anyone who wants to see the works just has to time his visit for the right part of the year? What public-interest score does that get? In short, the “public interest” game gets pretty slippery pretty fast. It’s easy to wave your magic wand and say “public interest” — in an ideal world of course it would be best for Fisk to keep all of the works (at least for the people of the state of Tennessee; perhaps not so much for the people in Arkansas) — but the question is always compared to what? It’s not at all obvious to me that the current state of affairs is, on the whole, better than some of the alternatives that emerged during the course of the litigation.

The facts of this case may indeed lead to the conclusion that the paintings may not be sold. I have only had a mild interest in the case and cannot say for certain. However, I think we should turn around and watch the shots coming at us from astern: too often art law is determined by considerations of the public interest. Make no mistake about it, the public interest is a negligible if not completely valueless consideration when considering restrictions on the alienation of art. Ultimately, we will pay the price for restricting it in the public interest by stagnation in art.

Appreciation for the arts has varied with time and with taste. For the nonce, arts of many kinds are in vogue — and we are surrounded by art, fashion, taste, vogue, music, and design of all manner. At a time when many believe that we do not have enough arts in schools because we are supposedly teaching to tests, and in a time when many decry funding for the arts, the fact of the matter is that humanity at all class levels have never been so aware of art in the entire history of humanity. This is not entirely due to technology, as it owes in part to the monopoly profits of strong intellectual property laws, but it is a fact.

So we have a tremendous amount of art in our lives. Humans have to use language to discuss art, and it’s too easy to employ hierarchies, ordering, and different degrees of adjectives to art. Some believe that, depending on our language, we are hard-wired to do so. In any event, one might wonder if, absent commentary and criticism, we might think that all art is equal — or given a certain specialty, perhaps *more* of it might be equal. (In the market, one might speculate this already occurs due to the primacy of goodwill value in the art, i.e. the value of a name.)

I read some interesting commentary on this subject and it’s hard to come by. In a lengthy NYT bio of legendary pianist and Texan Van Cliburn, there’s some debate over the merit of piano competitions. How do judges decide, after all? It’s similar to many types of art competitions in that the dilemma is what categories do you select for judging and how do you pick which is better in any given category? How does one grade feeling in piano performance? Is it easy for the judges to  be biased? All these and many more questions challenge the convention of judging in art for the sake of competition. Van Cliburn himself has never been a judge, and never wants to be. He explains:

“I couldn’t do it,” he said. “I’ve never been on a jury. It would be the hardest thing ever for me to do. I’m too understanding of why a person did a passage this way instead of that way.”

Could this be a paradigm for future aesthetic appreciation competitions? Or discussions?  [Apologies for errors, brevity, and lack of coherent thought as I typed this at 0330….]