Deaccession of art from the public trust.
Hugh Davies, Director of the Museum of Contemporary Art San Diego (1)
American museums are increasingly considering selling works of art in their permanent Collections. (2) Deaccession of art is:
the permanent removal or disposal of an object from the collection of the museum by virtue of its sale, exchange, donation or transfer by any means to any person. (3)
Museums have disposed of works in their collections in a variety of ways, but the term 'deaccession' was first used in a 1972 New York Times article by arts critic John Canaday who voiced his concerns over the quiet sale by the Museum of Modern Art which had:
recently de-accessioned (the polite term for "sold") one of its only four Redons, the gift of a prominent collector, rechanneling it into private hands--another prominent collector--by way of a dealer. (4)
While accessioning is the process of accepting an object into a collection; deaccession unwinds this process. (5) In an ideal world a museum should never be forced to deaccession a work of art, but reduced funding for the arts has forced more museums and universities to deaccession works of art. At present museums dispose of works without the benefit of a clear set of laws or guiding norms.
Consider the amount of art which has been sold by museums in recent years. The Fresno Metropolitan Museum of Art and Science has closed, and the entirety of its 3,000-object permanent collection has been slated for sale at auction. (6) The Fresno Art Museum may close as well--this could mean that there will be no contemporary art between Los Angeles and San Francisco. (7) Nearly a third of the works of art sold at Christie's May 2009 sale--45 lots in total--were works of art deaccessioned from US museums. (8) The Montclair Art Museum in New Jersey recently announced the deaccession of 50 works from its permanent collection, including an important Jackson Pollock drawing after it was forced to give away its 6,000-volume art library, reduce hours and lay off staff. (9) The Los Angeles County Museum of Art decided in 2009 to sell two Old Master paintings, one by Lucas Cranach the Elder and another by Sir Joshua Reynolds. (10) Many of these sales take place behind closed doors. In June 2009 the Orange County Museum of Art announced it had sold eighteen California Impressionist paintings to a private collector in a move which another museum director, Hugh Davies, called an erosion of "civic behavior and collegiality". It Many of these sales could have been lessened or avoided had art museums had the advantage of more permissive rules with respect to the use of deaccession proceeds.
A chorus of criticism invariably accompanies any deaccession of art; especially when those funds are not used to purchase more art or where the sale contravenes the wishes of a donor. (12) In 2008 when the University of Iowa considered selling all or part of its interest in Jackson Pollock's Mural (c. 1943), estimated to be worth as much as $100 million, it was met by a cavalcade of critics "noisily catastrophizing" the potential sale. (13)
The reactions to museum deaccessions really should not surprise us. Museums and arts organisations are permanent institutions which are required to serve the public interest in exchange for valuable tax benefits. (14) But with the recent financial downturn and a decrease in arts funding generally, institutions--particularly those attached to universities--are facing difficult decisions about when to deaccession works of art by removing them from permanent collections. (15)
Responsible deaccession should be a component of any sensible collections management policy. Museums may need to adapt their collection to changed circumstances. (16) Courts have held that institutions may decide to sell works of art from their collection for a number of reasons. (17) Special care should be taken during deaccession because tremendous value--both tangible and intangible--is bestowed upon works of art; and the temptation to unlock this tangible value challenges the notions of stewardship upon which museums and cultural institutions are built. A deaccession forces us to consider works of art as not just priceless pieces of cultural heritage, but also as commodities.
Current regulations are targeted at the use of the funds gained from deaccession; and may be both under- and over-inclusive. Consequently, industry guidelines and some state legislatures have filled these lacunae. Individual museum directors, trustees and the Association of Art Museum Directors (AAMD) have placed conditions on deaccession. The AAMD recently announced that its members had reaffirmed the policy that proceeds from art sales may not be used for operating funds or capital budgets. (18) Yet these restrictions do not always serve the public interest as current law and guidelines create incentives for museums to sell works in secret and avoid criticism. A BBC freedom of information request revealed the reality, that very few works in a museum's permanent display are ever displayed. (19) The British Museum kept 99% of its collection in storage, while the Natural History Museum stored 95% of its collection without display. (20) These numbers reveal that at some point every museum must run into a problem of scale. It will eventually be impractical to only acquire works of art, and eventually the difficult decision to deaccession must be made. (21) A museum must look to the past, but it must also stay abreast of current trends and new works of art.
The current laws and ethical guidelines make it more difficult for the cultural sector to arrive at solutions to these issues. Ethics policies promulgated by the AAMD and the American Association of Museums (AAM) impact on deaccessioning in a direct way. These governing bodies often react swiftly and decisively to any deaccession which violates their principles. (22) But, given the important role museums serve in America's cultural sector, we should insist on better regulation. A series of measured restrictions could serve two purposes. First, they could regulate permissible behaviour, offering guidance for best-practices. Second and more importantly, they would allow for an impartial check upon the process, diminishing the wave of harmful criticism which greets any museum contemplating a deaccession. This would bring order to the process, allow officials to build a body of precedent with which to measure their actions, and it would minimise public criticism which can often cause museums grave reputational harm. In an ideal world museums should never be forced to deaccession, but when they do, it should be with the benefit of a clear set of guidelines and procedures, which allow for public comment and debate and which ensure that important works of art maintain their connection to their interested public or region.
II. THE RULES GOVERNING DEACCESSION
Ethical guidelines have a substantial impact, as there remains a paucity of direct regulation of museums. The current rules provide that deaccession is usually permitted only to allow the acquisition of more works of art. However this does not always serve the public interest. How is the public interest served when an institution is unable to afford to pay its staff, or remain open or keep admission prices low? Museums perform an important role in educating the public, preserving works of art and attracting creative industries. As a result, they attract large sums of money, gifts and hours given by volunteers. (23) In general, the law of non-profit organisations is shifting towards a corporate model of accountability, which emphasises audits and other financial safeguards. (24) The law of non-profits has begun to increasingly borrow from the law governing corporations. This focuses attention on financial wrongdoing, or misuse of charitable funds but often ignores the broader obligations these organisations owe the public. (25) Donors are also increasingly setting restrictions on their gifts and attempting to guide the actions of non-profits, and that is particularly true with respect to museums. (26)
The small (though rapidly growing) number of cases which have addressed a trustee's or director's actions with respect to deaccession have done so in three general contexts. The first is a situation in which a museum wishes to sell objects to raise funds to meet financial obligations. (27) The second is when museums undertake a sale and use the proceeds to make capital improvements (28)--these are the most controversial decisions. (29) Third, disputes can arise when a sale involves a sale to a museum trustee (and may be considered self-dealing) or ifa sale price falls below market value. (30)
These problems actually implicate a broader set of concerns about the proper role of museums and how they can fulfil their obligations to the public. As will be seen below, none of these safeguards is really designed to examine museum deaccessioning with any kind of precision.
A. The Museum Community's Ethical Guidelines as Social Deterrence
Although the direct legal restrictions play an important role, deaccession is often guided mainly by professional codes of ethics promulgated by both the AAM and the AAMD, the two most influential museum associations in the United States. These ethical guidelines directly impact on deaccessioning, and end up having the force of law because, in the absence of formal legal regulation, they act as powerful norms within the American cultural community. Normative theory can help to answer and resolve some of the difficulties posed by the regulation of deaccession. Political scientists posit that norms erect "standard[s] of appropriate behavior for actors with a given identity." (31) Lawyers posit that social norms are enforced by a threat of social sanction while laws are enforced by state actions. With respect to deaccession, the social sanctions are generally far more severe. (32) At present the legal prohibitions of deaccession have very little impact on the substantive norms governing deaccessioning. These norms will often impact on the decisions of state attorneys general to challenge certain actions by museum boards and trustees; yet the cultural patrimony of the United States remains at risk.
First, we must understand what these norms proscribe. They restrict what museums may do with the proceeds from deaccessions, and recommend what circumstances must be present for a work to be deaccessioned. In the early 1990s, the Committee on Ethics of the American Association of Museums sought input from its members on a number of ethical issues. (33) The consensus was that deaccession should be limited exclusively to purposes consistent with the mission of the museum, and all proceeds should be used exclusively for the purchase of additions to the museum's collection. According to the AAM guidelines, "[d]isposal of collections through sale, trade, or research activities is solely for the advancement of the museum's mission. Proceeds from the sale of nonliving collections are to be used consistent with the established standards of the museum's discipline, but in no event shall they be used for anything other than acquisition or direct care of collections." (34) The AAMD has a stricter policy, setting forth two guiding principles which must always be observed by its members:
1. The decision to deaccession is made solely to improve the quality, scope, and appropriateness of the collection, and to support the mission and long-term goals of the museum;
2. Proceeds from a deaccessioned work are used only to acquire other works of art--the proceeds are never used as operating funds, to build a general endowment, or for any other expenses. (35)
The AAMD guidelines also indicate a belief that it is "important that a museum's deaccessioning process be publicly transparent". (36) However it is not clear if this means museums must publicly disclose any works under consideration for deaccession, and it also leaves a lot of discretion to museums in determining how 'public' this process should be. It also encourages its members to consider whether "the object [has] special historical or cultural relevance to the city, state, university, or college in which the museum is located?" (37)
Both governing bodies, then, insist that any deaccession must improve a collection and upgrade the art holdings. Although they do consider the transparency of the deaccession process, and encourage members to consider a work's connection to the region, these are not rigid rules; indeed not every institution which may consider a deaccession is a member of the AAMD. Although the AAM position permits a sale that allows for the care of the collection, these policies are quite restrictive. The only acceptable rationales are to upgrade the quality of a collection or to eliminate isolated or duplicate works. The deaccession of works to meet operating expenses is not permissible. The recent trends in the art world, the museum community and the economy, however, are putting tremendous pressure on these codes. They need to adapt to changing realities.
Although these codes are not mandatory, these organisations may exert substantial pressure to promote compliance. These codes are sometimes avoided by courts through their conclusion that some museums are primarily schools and may not be required to comply. (38) In other cases institutions have decided to withdraw completely from membership rather than risk penalties. Brandeis University in Massachusetts announced in 2009 when it was considering selling works that it would withdraw its membership from the AAMD to consider selling portions of its collection of contemporary art estimated to be worth as much as $350 million. (39) It was forced to contemplate a sale of the works to make up for a severe budget shortfall and a sharp decline in its endowment. In order to use any of the proceeds it first had to withdraw from membership in the AAMD. There are indications this drastic step was not taken lightly, as in July 2009 retirement payments for faculty and staff members were eliminated. (40)
Critics argue that if a museum can deaccession a work rather than undertake difficult fundraising, there may be a wave of unnecessary deaccessions. (41) But at the very least, the AAMD and the AAM should set up a safeguard where financially-troubled museums may be able to consider deaccessioning works of art. As deaccession becomes more prevalent, and if these works truly do enter the public trust, then the nation's cultural patrimony needs to be protected by a more nuanced policy that ensures works remain in institutions which preserve public use and access.
B. Legal Restrictions
A museum may deaccession an object free of legal restrictions in most cases. However when an object was a gift with conditions, or when the sale violates a fiduciary's duty of loyalty or due care; then a court may block or undo the sale. Donors can place restrictions on their gifts, preventing the sale of an object. (42) This will often make it difficult for museums to sell works of art, yet in some cases financial and other difficulties cause museums to undertake a sale anyway. (43) While these sales are legal, they risk upsetting donors and open the door to sanctions from others in the museum community.
1. A Paucity of Regulation by the States
No state has a statutory scheme directly regulating deaccession, though some states have begun to consider enacting deaccession restrictions. Some limited safeguards do exist when states or municipalities operate museums. (44) Take for example North Carolina which requires the board of the North Carolina Museum of Art to consult with the State Secretary for Cultural Resources before any deaccessio. (45) States may also require museums to provide information to the public through annual disclosures, at which point the public or interested observers can raise protests over deaccession. (46) Despite some moderate attempts at regulating the process the law remains far more permissive of the practice of deaccession than do the industry's own ethical guidelines. (47) If states do not directly regulate deaccession, then these decisions can be challenged by only a select few, including the donor, (48) his or her successors in interest or the attorney-general.
Recently, many more states have taken on this responsibility with increasing vigour and have begun to obtain information about how charitable trusts operate. There are two ways in which deaccession is generally challenged in court: first, a museum may seek court approval prior to the deaccessioning; (49) or second, a state attorney general may challenge a decision to dispose of a work under a theory that a museum is mismanaging charitable assets. (50)
Another difficulty facing those who wish to block a sale of a work of art will often be legal standing. Standing often depends on the particularities of the case, and is determined by whether the gifts are conditional or restricted. One category of people most likely to wish to challenge a deaccession, donors, will often lack standing. In most cases it is the attorney general of the state in which the work is located who has standing to enforce donor restrictions and to limit deaccession in individual cases. In other cases co-trustees or beneficiaries with a special interest have standing, (51) though this is often more difficult to establish if an attorney general is involved. (52)
So although local governments do have some freedom to regulate property for the public benefit, it remains to be seen whether that public benefit is served when a city on the East Coast prevents the sale of a work of art to another museum in another part of the country. This nearly happened in Philadelphia in the controversy surrounding Thomas Jefferson University's decision to sell Thomas Eakins' The Gross Clinic in 2006. Philadelphia Mayor John Street nominated the masterpiece for protected status, and if the Historical Commission had certified the work as an 'historic object' it would have fallen under the jurisdiction of the Commission and thus could not have been moved or altered without the panel's permission. (53) The dispute was resolved with a purchase by local institutions (avoiding the possibility that Thomas Jefferson University would have had a potential takings claim).
Each state attorney general carries the responsibility of monitoring museums if they take the form of a charitable trust or non-profit corporation. However this oversight role may just be whitewashing. In reality, an attorney general has very little ability to provide really effective oversight. Many have criticised the idea that an attorney general can effectively monitor a charitable trust or a non-profit corporation. (54) In a recent study of the Hershey Trust, Jonathan Klick and Robert Sitkoff showed how political considerations may sharply curtail the options of an attorney general. (55) As one leading text points out, "the enforcement of charitable trusts has been more or less sporadic." (56) An attorney general may be disinclined to challenge the actions of a powerful trustee or board member if it might hinder her the A.G.'s political aspirations. Different attorneys general exercise different levels of oversight as well. As Marie Malaro points out:
[s]ome [attorneys general have] active education programs and favor early consultation. Others give their attention only to situations that show evidence of serious abuse. (57)
One recent case involving a prominent historically black college in Tennessee, Fisk College, illustrates the difficult position occupied by attorneys general in this context.
In the late 1940s and early 1950s, 101 works of art were given to Fisk University by the artist Georgia O'Keeffe and her deceased husband, Alfred Stieglitz. The gift included photographs and paintings donated to Fisk by O'Keeffe in her capacity as a life tenant with power of disposition under the will of her husband. Also included were four paintings owned by O'Keeffe (including the iconic Radiator Building-Night, New York). The collection may be worth as much as $60 million. In 2005, in the midst of a serious financial crisis, Fisk University filed an ex parte suit seeking a declaratory judgment which would have allowed it to sell some of the works from the Stieglitz collection--despite the restrictions imposed by the gift--in order to add to the University's endowment and make campus improvements to its maths, biology and business departments. (58) The dispute arises from the conflicting interests of three groups: Fisk University, the O'Keeffe estate, and finally the people of Tennessee as represented by the Attorney General Robert Cooper. The Georgia O'Keeffe Foundation as successor in interest to the O'Keeffe estate, objected to the potential sale arguing that the violation of the initial restrictions would cause the gift to fail and the works would revert to the Foundation. (59)
Protracted litigation and negotiation has ensued. In March 2006, the O'Keeffe Foundation assigned all of its interests, including its interest in the then pending civil action against Fisk University, to the Georgia O'Keeffe Museum. (60) In April 2007, the University filed a motion to amend its complaint and requested that the conditions of the charitable gifts be rewritten by way of the cy pres doctrine. (61) The trial court granted the motion and found that the University had failed to establish two essentials required under the cy pres doctrine: one, that the gifts were motivated by general charitable intent; and two, that the relief the University was seeking did not effectively approximate the original purpose and intent of the gift. (62)
An appeal soon followed to determine whether the trial court erred in finding the Museum, as residuary beneficiary of the Foundation, possessed a right to reservation and therefore had standing in the dispute; whether the trial court erred in finding that the charitable intent of the gifts was specific rather than general charitable intent; and whether the trial court erred in finding that the University could not satisfy the necessary elements to entitle it to relief under the cy pres doctrine. (63) The Tennessee Court of Appeals held the O'Keeffe Museum did not have standing in the matter and it reversed the trial court's holding with respect to the 97 works from the Stieglitz Collection. (64) The Court remanded the case in order that the University be given the opportunity to demonstrate it does satisfy the elements required of the cy pres doctrine. (65)
The Tennessee Court of Appeals decision makes clear that the gift itself was made with the intention to make the Collection available to both the public in Nashville and to the south as well. (66) Although this is not a deaccession which will make it possible for Fisk University to acquire more art, it still makes the collection available to the public in the south, the works of art are still held in the public trust, (67) on display for the public. It seems unlikely that the courts of Tennessee would be serving O'Keeffe's or Stieglitz's wishes in restricting these gifts to prevent them from handling this new set of problems. It remains unclear then why the Tennessee State Attorney General was so critical of the proposed settlements. (68) Even if the works were to be split between Arkansas and Tennessee, they would still be on display in the region, available to minorities in the south--which was one of the primary animating purposes of the trust. Yet the Attorney General has an obligation to the people of Tennessee, at the expense of the interests of the citizens of Arkansas or other states. Given the difficulty State Attorneys General have in effectively policing these sales, many states have begun to consider stricter legislation governing the practice.
2. The Brodsky Bill in New York
In response to a series of deaccessions in the region--particularly at Brandeis in Massachusetts (69)--New York State Assemblyman Richard Brodsky renewed his efforts to enact legislation to regulate museum deaccessioning in New York. (70) His proposal is similar to theAAMD guidelines in that both bar the sale of parts of a museum collection to cover museum operating costs. The proposal would prevent deaccession unless:
1. the item is inconsistent with the mission of the museum;
2. the item has failed to retain its identity;
3. the item is redundant;
4. the item's preservation and conservation needs are beyond the capacity of the museum to provide;
5. the item is deaccessioned to accomplish refinement of collections as required by and/or stated in its collection management policy;
6. it is inauthentic;
7. the museum is repatriating the item;
8. the museum is returning the item to the donor; or
9. the item presents a hazard. (71)
The bill proposed by Brodsky assumes that museums should primarily acquire works of art. This does not allow any consideration of the question of whether these objects are on display, available to the public or available to researchers. The public interest is impacted by a number of different museum decisions, not merely the acquisition of a work. However the continued restriction on the use of the proceeds gained from a sale is problematic. On announcing the new proposal Assemblyman Brodsky stated:
[t]hese collections were not created as reservoirs of capital to be used for the benefits of the institution, you keep selling paintings to keep the doors open and eventually you have open doors and no paintings.... The goal here is to provide a consistent process in the museum community for dealing with these difficult issues. (72)
Yet these rules are apt to create a similar situation: they assume it would be preferable to allow some museums to close than to allow deaccession proceeds to be put to other acceptable uses.
Deaccession should be a last resort, but given extraordinary financial or other pressures why can a museum not carefully sell a work if it allows that museum to pay a curator's salary, keep the lights on or pay for security? At least a few museum directors believe so. Christine Miles, director of the Albany Institute of History and Art argues:
Does it make any sense to prevent the deaccessioning of works which then won't be enjoyed by the public because the institution that houses it can't afford to keep its doors open? I don't think so. Yes, the public interest in making these works available to the people must be preserved, but not at the expense of the organizations who provide the stewardship necessary to do so. (73)
Others have also criticised the proposal, including the Art Law Committee of the New York Bar. (74)
C. Judicial Examination of Donor Intent and Changed Circumstances
If parts of a museum collection were acquired by gift, and if the donor attached restrictions on the gift, a museum has an obligation to respect those restrictions. (75) A court in equity, however, can allow a museum to sell the object by reforming the gift instrument under the doctrine of cy pres. Cy pres allows a court in equity to amend the terms of a charitable gift if the terms are impractical, illegal or impossible to effectuate, and if the donor had a general charitable intent. (76) On the other hand, the court may refuse to allow a museum to amend these donor restrictions. (77) One of the difficulties that arises, even if the museum ultimately prevails under a cy pres decision, is the considerable time and effort spent in authorising the sale. Donor restrictions on charitable gifts can remain effective forever, as these gifts are exempted from limiting provisions such as the Rule against Perpetuities. (78)
Museum officials seeking to deaccession a piece of art may be constrained by the terms of a restrictive gift limiting the use or sale of a gift or work of art. These deaccession issues are best addressed at the time of acquisition, when museum officials have the greatest ability to negotiate the terms of the bequest. Indeed, the trend has been for institutions to accept fewer bequests with restrictions attached to them. When they are bound by restrictions, museums may look for alternative constructions of the trust instrument in order to free themselves from its terms. These alternative constructions often result in controversial or even dishonest readings of trust instruments. (79)
When financial or other circumstances have substantially changed, rendering the continuing mission of the museum impossible under a trust instrument, museums often attempt to use their charitable resources for the furtherance of their mission. Cy pres and court-approved deaccessions are one way of fulfilling their mission. (80) One of the challenges facing the law of trusts is how to resolve the tension between the wishes of the settler--known as perpetual dead hand control (81)--and the shifting circumstances which may arise and challenge the original purpose of the trust or gift. (82) The rules applicable to charitable trusts differ from those applying to other private trusts. Private trusts are subject to legal rules which restrict their operation over time. (83) This means that from time to time courts may have to re-examine trusts in the light of changed circumstances, (84) Cy pres allows courts to construe a broader charitable intent so as to avoid failure of the trust. Even when the settlor does not provide for a gift over or reverter on the happening of a particular event, courts can employ cy pres to save the gift. (85) According to the Restatement (Second) of Trusts, courts are equipped with the equitable power of cy pres to amend trust provisions after adherence "becomes impossible, impracticable, or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes." (86)
Judges have a great deal of discretion when applying the cy pres doctrine. In reevaluating the goals of the charitable trust, the court must "consider evidence as to what would probably have been the wish of the settlor at the time when he created the trust if he had realized that the particular purpose could not be carried out." (87) This can be a subjective enquiry, prompting some legislatures to erect statutory limits on the cy pres doctrine, (88) These limitations on the courts' powers to amend restrictive trusts attempt to ensure that the wishes of the settlor are not easily overturned.
D. Challenging Deaccession
There are few legal remedies available to those who wish to challenge a deaccession after it has taken place. As we have seen, in the absence of gift restrictions there are really only three options: first, the museum or its trustees may be held liable for breach of a fiduciary duty; (89) second, a museum itself may face liability; or third, a state attorney general may challenge a sale or attempt to return objects which have been sold.
In some cases the trustees or directors of a museum may face legal challenges. Yet bringing actions against individual trustees is also a difficult task. For one, liability can be difficult to establish because trustees are often provided with broad immunity and are not required to act as insurers of the institutions' activities. (90) If we were to propose that individual trustees should bear more of the burden for the consequences of their decision (an unwise move for a number of other unrelated reasons), this would have the effect of making it difficult to attract knowledgeable trustees and the donations that these individuals bring to an institution. These decisions are also sometimes shielded by the business judgment rule.
[D]irectors satisfy their burden by showing good faith and reasonable investigation; the directors will not be penalized for an honest mistake of judgment, if the judgment appeared reasonable at the time the decision was made. (91)
Thus, directors are obliged to inform themselves about the activities of the organisation, but the decisions they make are given broad discretion. (92) This standard is even more deferential when we consider that deaccession decisions are most often based on evaluations made by a director or curator, and many museum trustees are not art experts. (93) Museums may call in other museums or experts, but it can often be difficult to find a disinterested party, and art valuation is extremely difficult. (94) This process can often lead to difficulties and corruption, since many of these authentication experts, who happen to be the most sought-after, have a strong incentive to provide a valuation in line with the needs of the respective institution. This can result in the loss of accreditation from the AAM or AAMD, the loss of loans from other member-institutions, or even the loss of tax-exempt status. (95)
III. WEIGHING THE MISSION OF A MUSEUM AND THE PUBLIC TRUST
Deaccessioning has occurred more frequently in recent years, prompting one contemporary arts commentator to argue that museums should fail and close their doors rather than dispose of works of art. (96) Yet as arts commentator Judith Dobrzynski argued in a recent Op-Ed, "[i]f the choice is between allowing a museum to fail (or make crippling cutbacks) and selling some art, what's the big deal? Sell art!" (97)
The current financial outlook for museums is likely to be one of the most difficult in decades. In 2009, the Getty Museum, one of the wealthiest museums in the world, was forced to cut its annual budget by 24% and make 97 members of staff redundant. (98) The Art Institute of Chicago lost nearly 24% of its endowment in 2009. (99) Museums are raising admissions fees, laying off staff, dropping exhibitions and even imposing furloughs. (100) Universities all over the country are forced to cut arts budgets. (101) One reserve of resources may be endowment funds, though the economic downturn has also affected these reserves. The average investment loss was 23% between July and November in 2008. (102) As noted above, Fisk University in Nashville is engaged in a protracted legal battle in an attempt to sell some or part of a collection of art, including some important Georgia O'Keeffe works)o3 American museums are looking for ways to meet these expenses to continue their core function as sources of education, culture and higher learning.
Funding for the arts has been reduced generally as well. The repeal in 2001 of the federal estate tax eliminated one lucrative source of donations. (104) In 2002, the 60 highest donors pledged $4.6 billion, a sharp drop when compared to the $12.7 billion which was pledged in 2001. (105) In order to reduce tax burdens, donations of cash or assets to charitable institutions are often carefully crafted, with museums and cultural institutions the beneficiaries. (106) The recent trend to limit or repeal this tax has constricted this kind of tax-conscious philanthropy. (107) This may continue, with the Obama administration and others advocating a reduction in itemised deductions such as charitable contributions to museums. (108) This has resulted in substantial recent declines in charitable giving. (109) Decreased public funding has played a role as well. Although the federal government has established the National Foundation on the Arts and Humanities and many states have similar assistance programmes, these forms of assistance are at risk in the current economic climate. (110) More and more institutions may be contemplating whether to close their doors, lay off staff, or deaccession works.
A. A Difficult Mission: the Public Benefit and the Public Trust Doctrine
Many critics justify stringent restrictions of deaccession on the grounds that works of art should seldom be removed from the pool of works of art often described as the public trust. But under the current rules there are no guarantees that when a work of art is deaccessioned it stays in the public trust. The public trust doctrine offers a number of tools with which deaccession rules can be improved; but not in the way that many conceive of the concept currently. Rather than focusing on the purposes for which the funds are used, we need to shift our focus and ensure that when works are sold the public has an opportunity to examine the removal either through better tailored ethical norms provided by the museum community, legal action in the courtroom or improved legislation at the State or Federal level. To see how, we need to examine the role of museums in contemporary life, and examine how this role can be informed by the public trust doctrine.
1. The Mission of Museums
Commentators have long argued that the public has a strong interest in the collections management policies of museums. One arts commentator noted,
[i]f one accepts the theory that the collections of a museum are owned by the 'public' ... and that museums exist for the public benefit, then it could be argued that once such items are in the 'public' domain they cannot be removed by sale. (111)
Museums have an obligation to the broader public, the precise nature of which is often undefined. As Karl Meyer pointed out with respect to the modern museum, "no one is certain what its real mission is." (112) If nothing else, museums need to clearly define their obligations to the public, and make those missions clear and focused so as to put stakeholders, including donors and trustees, on notice of the potential uses of their bequests.
In exchange for lucrative tax advantages, museums owe an obligation to the public. (113) But what is this obligation exactly? We may begin to arrive at a better understanding of this mission by looking at what makes museums so exceptional and worth supporting with gifts, donations and taxpayer dollars. They preserve and display works of art for scholars, the public and future generations. They educate and inform the broader public about other cultures and ideas. They also inspire and promote civic pride and economic investment. However, seldom do museums ever articulate precisely how they fulfil this obligation. The governance structure of American museums--part private organisation, part public--serves only to further obscure the picture. Art museums cannot in all cases be all things to all people, and with rising operating expenses and other financial pressures, the question remains whether deaccession may in some limited cases actually help a museum to fulfil its public mission. Why shouldn't a museum be able to responsibly deaccession parts of its permanent collection in order to better serve their core mission? At least one explanation for the reticence of the cultural sector to embrace responsible deaccession stems from tradition.
Before and after the Second World War, American museums were busy keeping up with their European counterparts to acquire, preserve and study works of art. This was an important mission, as these museums were adding to the store of American cultural patrimony, often at the expense of other nations. However this mission seems to have undergone a steady alteration in recent decades. (114) Museums now view their mission in a broader way, making works of art available to the public at large--from different classes and socio-economic backgrounds. To accomplish this broader mission museums have sought to reach into the community through new and unique exhibits which do not always focus only on how the objects are presented. (115) These new efforts challenge the ideas upon which many of these museums were founded. Having acquired impressive collections of art, the question, particularly in dire economic times, becomes: what should be done with the art which has a very slim likelihood of ever achieving regular display? Art museums have attempted to fulfil broader obligations by appealing to the masses, by staging what are commonly referred to as 'blockbuster' shows. This sometimes comes at the expense of the more established stakeholders such as critics, connoisseurs, scholars and donors. When museums are encouraged to continuously collect and rarely deaccession, museums will eventually become overcrowded. They will run into a problem of scale, and it will become increasingly expensive to properly conserve this growing collection which rarely if ever goes on view. Deaccession occurs regularly, yet the current norms and laws guiding the practice do not ensure works of art remain in the public trust.
The overwhelming majority of works of art held by most museums will never be displayed publicly. The works on display at any museum are only the tip of the iceberg. And though museums fulfil a valuable public service by acquiring and preserving works of art, they must keep their doors open and the lights on for those works to be made available. And what of contemporary art which might seem baffling to the uninitiated? Many museum goers gravitate towards works of art that show evidence of skill and time; not necessarily the abstraction and abandonment of style which characterises much modern and contemporary art. In fact there are many different 'publics' which visit museums, all with different levels of education, background and expectations. Can one museum hope to please and accommodate all of these groups? At their core, museums should serve as a kind of gateway to new images, ideas and cultures.
A museum's mission can be served in a number of different ways. The current overriding sentiment with respect to collections management, as evidenced by the AAMD and AAM guidelines, (116) assumes that museums must acquire works in exchange for deaccession funds. This seems to suggest museums are repositories of art irrespective of whether anyone actually sees or studies the works. The strict norms covering deaccession proceeds may preclude some groups from benefiting from a museum. Individuals from more modest backgrounds may be better served by education, outreach, low admission prices and other gateways to the visual arts. An appropriate deaccession, which helps advance these goals, may better serve the broader public.
When disagreement arises over whether an action by a museum may violate this principle, courts are often of limited usefulness unless there is clear wrongdoing on the part of the museum or its leaders; or donors have attached clear restrictions to their gifts. This stems in large measure from the fact that the typical museum mission lacks precision, may be considered 'ephemeral', (117) or even nonjusticiable. (118) The open question though is whether deciding to never deaccession art is really compatible with the broader mission to the public. (119) Would it be better to allow a museum to fail than to sell some or part of a collection if it ensures continued service for the public benefit? (120) Are art museums merely institutions which collect and amass works of art for the public trust? Surely this is not the case. Rather, they serve a whole host of other critical functions ranging from education, research, curating, conservation and outreach.
These ethical guidelines determine how the public and the arts community judges how well a museum is fulfilling its mission. This judgment is critical to the success of a museum both in terms of how it can raise funds and acquire gifts, and in how it interacts with other museums for loans and other co-operative ventures. If a sale takes place, but the funds are used to buy more art, than a deaccession is assumed to be proper, even when there may be underlying wrongdoing or misconduct.
One high profile controversy has defined the terms of the debate and illustrates the flawed assumptions on which the current norms rest. In 1972 the troubling deaccession practices of the Metropolitan Museum of Art (the Met) first emerged. (121) The Met quietly sold a number of works donated by Adelaide Milton de Groot and others. The Museum director, Thomas Hoving, attempted to defend the sale by arguing the works were of inferior quality. However, the works at issue were by esteemed masters such as Vincent van Gogh, August Renoir, Toulouse-Lautrec, Henri Rousseau and others. (122) As controversy erupted, the Met argued it had needed to sell the works to replenish depleted funds; however the Met had actually been overextending itself with some of its purchases in the 1960s, including the acquisition of Rembrandt's Aristotle Contemplating the Bust of Homer for $2.3 million, Claude Monet's Terrace at Sainte-Addresse for $1.4 million, and Velazquez's Portrait of Juan de Pareja for nearly $5.6 million--a record then for any work of art purchased at a public sale. (123) It is also likely that the acquisition funds made it easier to purchase the Euphronios Krater, a masterwork of antiquity which was also purchased for a record $1 million for an antiquity, though it was later discovered the work had been illegally excavated and removed from Italy, and it has since been returned. (124) So although the Met was selling works of art in its permanent collection, it was violating domestic and international law in acquiring the Krater, and setting auction house records. Despite these questionable practices, these controversial deaccessions would still be permitted under the current AAMD and AAM guidelines. Although works were being removed from the Met's permanent collection, the proceeds from those sales allowed the acquisition of more art, the overriding priority of the current industry norms.
The opposition from donors in particular made it apparent that the secrecy surrounding the Met's deaccession had been a product of fear of legal action. (125) Today, much of the debate surrounding the current deaccession rules can be traced to this series of controversial deaccessions. The Met's sale of parts of the de Groot Collection were soon heavily criticised. (126) As one commentator noted, "if a museum wants a reason to sell it will be found." (127) Some called the process "disturbing" (128) or even a "cover up". (129) Louis Lefkowitz, a former New York attorney general, opened an inquiry into the decision to sell the works. (130) This public outcry and the accompanying scrutiny forced the Met and other museums to adopt internal guidelines governing deaccession. But they all start from the flawed assumption that deaccessions are legitimate if they allow the purchase of more art.
Even masterworks are subject to the collections management decisions of museum officials. (131) However, many in the museum community view themselves as almost-sovereign institutions. Museums have often exhibited a reluctance to allow greater scrutiny of their decisions:
Founded in the 19th century by autocratic men of wealth and power, the art museum's position as educator and of arbiter elegantiae has gone unchallenged, its policies and practices unexamined, and its purposes unquestioned. The social and economic circumstances of the founding of most American museums have set the tone for their administration even 100 years later. The administration of most museums is secretive, heavy-handed, and reactionary. Few administrative moves are openly made, and even the decision-making process itself is hidden. Any sincere public interest in the inner workings of museums is usually greeted with disdain and, perhaps more galling, with surprise by its officers and trustees. (132)
Public scrutiny of museum practices remains elusive, and the current norms and laws encourage further secrecy. Deaccession decisions, once an internal matter, have sometimes been heard before the court of public opinion. This often leads to unpleasant reputational costs for museums, and in an effort to avoid them; museums have often deaccessioned works as quickly and quietly as possible.
2. The Public Trust Doctrine
One of the typical arguments made against deaccessioning is that works of art are held by museums for the public trust. (133) Individuals in the cultural sector use the term to describe the obligations the museum community owes to its broader public. Yet there has been relatively little scholarly discussion of the implications of the public trust doctrine as it applies to art and cultural heritage. (134) A leading expert on the intersection of heritage and property, Patty Gerstenblith, has argued that objects which enter museum collections cannot later be returned to private ownership and their sale should be limited to other public institutions or within a given geographic region. (135) Yet this conflicts sharply with the way many in the arts community view the doctrine. As Hugh Davies, the director of the Museum of Contemporary Art in San Diego said in a recent interview:
We museum directors can huff and puff about how once we bring these artworks into our collections that they no longer have value because they've been removed from the market, that they become this special trust that is the patrimony of our cities and that they're held in trust for future generations. It's B.S. We go on and sell them and the rule is the proceeds [from] the sale can only go to replenish the collection. (136)
The uses of the funds gained from a sale have little to do with the important issue of whether the public must continue to access and enjoy works of art. To effectively regulate deaccession and prevent misconduct, deaccession must be divided into two separate enquiries. First, a museum should disclose to regulators and the public the reasons why a work of art must leave the permanent collection. Second, the proceeds derived from this sale or disposal must be put to an appropriate use. Properly applying the public trust doctrine to these works would be an effective way to accomplish this sensible approach. (137) To see how, we need to look at the idea of the public trust in some detail.
The doctrine has primarily been used as a tool in property and environmental law to avoid the exploitation of certain natural resources and provide standing for citizens to encourage environmental protection. (138) Both public and private owners of property which falls under the public trust must preserve the public's right to access and use. The doctrine has had a measured impact in increasing the public's interest in natural resources, and the environment. It has even reinvigorated the environmental movement (139) by promoting "guardianship, responsibility, and community" in public spaces. (140) It originated in the Roman concept of public property, which stipulated that certain parts of the environment--the air, rivers and the sea, for example, were not subject to private ownership. Rather, they were dedicated for public use. (141) This idea soon took root in the civilian law of many nations in Europe, as well as the common law of England (142) Such is also the case in many other nations with respect to cultural heritage, art and antiquities; which are often the subject of national ownership declarations and other restrictions. (143) However, it is not limited to navigation or commerce--the doctrine applies broadly to the public's use of resources. (144) The interest of state government in public trust property is only that of a steward. (145) Under the public trust doctrine, resources are held in trust by the state for the benefit of the public. Even where resources or lands have been conveyed into private ownership, an owner generally holds title subject to public trust restraints. (146) Since its reintroduction, examples of the public trust doctrine in the courts of several other states have emerged.
The doctrine first gained widespread attention after a decision by the Supreme Court in 1892 in Illinois Central Railroad v. Illinois. (147) In that case the Court struck down an Illinois state privatisation of the waters of Lake Michigan. These resources were in fact "held in trust for the people of [Illinois]", and the public "may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties. (148) In 1869, the state legislature sold over 1,000 acres of submerged land extending a mile from the Chicago shoreline to a privately owned railroad company. Shortly thereafter, the state legislature repealed that grant and the matter ultimately came before the Supreme Court. The Court held that the legislative repeal of said grant was valid because the original grant had invalidly divested state authority over navigation in the adjacent lake and could not be responsibly abdicated. (149) The Court justified its holding on the theory of sovereign ownership by states of key natural resources such as navigable waters.
Joseph Sax later re-examined its potential substantive and procedural foundations. (150) He argued that the trust doctrine should not merely be used to protect navigation, commerce and fishing. Rather the doctrine could act as a legal rationale for the public to assert its right to the protection of the environment for future generations. The doctrine then began to gain widespread attention as a basis for citizens to override unreasonable privatisation of natural resources. (151) With the advent of the modern environmental movement, then, Sax's theory of the public trust has proved to be a powerful tool for environmental groups and concerned citizens seeking to prevent or decrease environmental harms. It has been at the forefront of state common law developments aimed at preserving the natural environment, having been recognised in many state constitutions and environmental laws. (152) How then does this public trust doctrine apply to works of art held in American museums?
The value of an archaeological resource, similar in nature to a work of art, conferred standing in a case before the Utah Supreme Court. In National Parks and Conservation Association v. Board of State Lands, the Utah Division of State Lands and Forestry decided to exchange a section of state school trust land for lands owned by a county)s3 Based in part upon a theory of the public trust doctrine, the National Parks and Conservation Association (NPCA) filed suit to prevent this exchange. The Utah Supreme Court examined whether the appraised values of lands owned by a county offered in exchange for state school trust lands represented their full value. (154) The court held that the beneficiaries of a school land trust did not include the general public and that the school lands trust did not constitute a public trust that implicated the general welfare of the state. Even so, the court granted standing to the NPCA based on the public trust doctrine theory because the matters implicated by the public trust doctrine--namely, the preservation of unique archaeological and paleontological values which exist in some state school lands, and reaching a resolution upon the propriety of attempts by state governments to discharge their fiduciary duties in administering public lands--raised valid issues of significant public importance. (155) Likewise, in dicta the court stated that in certain cases it may be unconscionable not to preserve and protect unique paleontological and archaeological values, and that it may be necessary for the state to buy or lease school lands from specific (non-) public trusts so that unique, and sometimes non-economic, values such as these may be preserved and protected. (156)
Yet in Iowa v. Sorensen, for example, the state of Iowa sought to acquire certain real properties under the public trust doctrine. (157) Attempting to quiet title, the opposing private property owners argued that Iowa Code [section] 614.17, which barred claims to real estate pre-dating 1970, precluded the state's claim to several parcels at issue. The state argued that [section] 614.17 did not apply to the state as it sought the property under a theory of the public trust doctrine, and could not be lost by default. (158) Even though the Iowa Supreme Court expressed scepticism that the public trust doctrine should extend to archaeological property, (159) the Court concluded that land adjacent to the Missouri River was suitable for public use as access to the river was a use protected by the public trust. (160)
Yet there exist great differences between how different state laws and constitutions define the public trust. As states are encountering the loss of works of art, they may decide to treat works of art as a public trust resource, though no state has done that at present. Recent case law indicates that under a theory of legislative supremacy, legislatures may reallocate property from one public purpose to another without violating the public trust doctrine. In Cathedral Church of St. John the Divine v. Dormitory Auth., a church sought to enjoin the adjacent construction of an additional wing of a nursing home under a theory of the public trust under the claim that the addition would adversely impact the character and quality of the church and other surrounding buildings. (161) In the court's analysis of the church's public trust theory, the court concluded that under New York state law the public trust doctrine was highly circumscribed in application, and uniquely impresses only upon state parklands a public trust which cannot be alienated except by direct and specific authorisation by the state legislature. Consequently, the court rejected the church's argument that the property which the nursing home sought to expand upon (an unused, deteriorating 'gatehouse' used for years by the nursing home as a sitting area) constituted a 'parkland' under the purview of the public trust doctrine as it applied in New York. (162) Following review of a conditional agreement whereby the nursing home agreed to meet certain requirements specified by the city and state, the court held that the expansion project would not impact the church or the local environment adversely.
Similarly, in Wade v. Kramer, the countervailing doctrine of legislative supremacy was reaffirmed as the only proper instrument by which to permit reallocation of use of a trust corpus pursuant to the public trust doctrine. (163) In Wade, the plaintiff landowner filed suit to enjoin defendant state officials from constructing a bridge which would be partially built upon a publicly owned conservation area adjacent to her real property. (164) The plaintiff's complaint alleged that the state is a trustee of property that it owns, including wildlife and archaeological relics, which it maintains for the benefit of state citizens. The court upheld the validity of property held under a public trust, but noted that the power of the legislature over property subject to a public trust has been broadly interpreted. (165) Citing Paepcke v. Public Bldg Corn., the court concluded that the public trust doctrine allows the state to divert trust property to new and different uses. (166) In Paepcke, a complaint was filed to enjoin construction of public schools in city parks. (167) There, the court extensively relied on an article by Professor Sax. (168)
It is often said that once a work of art enters a museum collection, that museum holds those works in the public trust for future generations in much the same way that the public may enjoy navigation on public waterways. There are three general restrictions on governmental authority which are imposed by the public trust: the property must be available for the general public; the property may not be sold; and the property must be maintained for traditional uses. (169) It is unclear just how these restrictions may impact on the actions of museums, though as more and more museum directors and others refer to their collections as part of the 'public trust', more states may begin treating these resources like navigable waterways and archaeological resources. As Ford Bell, the President of the AAM, wrote in a letter to the New York Times "once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations." (170) Yet this contrasts with the way in which other public trust resources are regulated. If a private buyer purchases an important work of art there is no guarantee under the current rules that the work of art will in fact stay in the public trust or in the region. (171) When a museum closes because it cannot meet its operating expenses, then all of a museum collection risks disappearing into private collections. There exists a pressing need for a more ordered process for removing objects from the public trust, and cultural policy makers who are critical of increased state regulation may want to think very carefully about how they classify works of art.
Indeed, the public trust argument with respect to deaccessioning has been used in two conflicting ways. First, it is used to criticise the loss of works of art from a given museum which may fall into a private collection. Second, it is also used to criticise the transfer of a work of art from one museum to another. Consider a situation in which the Met decides to deaccession a work of art which is then purchased by the new Crystal Bridges Museum in Arkansas. In that case the works will still be on public display, still viewed by the public, still held in the public trust. However the viewing public is likely to be different--the inhabitants of Arkansas and the surrounding region as opposed to those near New York--the work may still be used in much the same way it had been in New York. Yet the current rules do not allow for an orderly evaluation of these different publics. Merely restricting the uses to which these deaccession funds can be put does not ensure that the public is served. If these works really are special and unique, the deaccession process must acknowledge that fact.
B. Why Deaccession Art?
Museums hold priceless works of art, yet these are not liquid assets. (172) As a result, special care must be taken if a museum decides to convert these illiquid assets. But such a careful accounting does not take place under the current system of norms and laws. These imperfect safeguards have led to devastating consequences--including museum closures--which often make it more difficult for trustees and directors to navigate financial difficulty. (173) Given the controversy which often surrounds deaccessioning, museums often attempt to make deaccessions as quickly and quietly as possible. (174) In fact, in the early 1970s museums often attempted to avoid any publicity--a troubling trend which continues today. (175) This may be an effort to elude criticism by prominent donors. Many museums are attentive to the fact that new acquisitions were purchased with the funds provided by the deaccession of another donor's gift. (176) Deaccessioning certainly raises revenue that can be put to a number of uses, but this process also produces a number of costs: (177) Decreased donations may ensue, there may be negative public responses, donors may attempt to donate only with the benefit of restrictive covenants attached to gifts, or it could even risk litigation from donors or state attorneys general. Yet given the reduced funding for the arts and other tax reforms, more museums will consider deaccession; and as a result, some in the museum community are attempting to reform the practice by challenging the default industry guidelines. (178)
1. Meeting Expenses
Museums are absolutely barred by the AAMD and AAM guidelines from using the proceeds of deaccession to pay fixed costs to allow a museum to continue to maintain its basic functions. These basic functions may include maintenance on a building, the conservation of artwork, staff salaries, repayment of a debt, or even meeting the expenses of a loan exhibition. These problems will often call into question the leadership of a museum's managers and directors.
In late 2008, it was revealed that the National Academy in New York had decided to sell two works from its permanent collection: Frederic Edwin Church's Scene on the Magdalene (c. 1854) and Sanford Robinson Gifford's Mount Mansfield, Vermont (c. 1859). (179) The Academy owns more than 7,000 works of art, most of which have never been publicly displayed. The sale generated nearly $15 million in proceeds, which were applied to the day-to-day operating expenses of the institution. Carmine Branagan, the director, said that without the proceeds of the sale, "the Academy would close". (180) The Academy had been running at a deficit for five years, and was forced to borrow heavily from its badly depleted endowment to pay personnel salaries and the heating bill. The Academy was quickly criticised by the AAMD, which rescinded the Academy's membership and directed its other members not to lend or collaborate with the National Academy. (181) This left other museums scuffling to revise their exhibition plans. The Academy's expulsion from its peer group implies that the entire institution is untouchable, with other museums risking a tarnished reputation by mere association with the disgraced institution, including with their staff. (182) Branagan objected to the sanctions arguing that the Academy is not a traditional museum; it acquires works through the donations of member-artists, not through purchasing, and as such it should not be held to AAMD's standards. The New York Board of Regents' oversight does not extend to the Academy as it was chartered by the state in 1858 and the Regents obtained chartering power in 1890. The Academy, governed by its inducted artist-members, voted to sell the paintings.
Prior to this decision, the Academy considered selling its Fifth Avenue mansion, but the members voted against this proposal. The AAMD sanction has only made it more difficult for the National Academy to fulfil its mission to the public interest. Fewer people will be able to appreciate the 7,000 works in the Academy collection, all because two paintings were sold in order to maintain operations, and were sold with a strict requirement that they continue to be on public display. It is difficult to see how the public interest was harmed by the sale, unless we include in a narrow definition of public interest that works of art must stay at their current institutions, a proposition that seems to conflict with the prevalence of loaned artwort and travelling exhibitions. Museum directors and trustees must weigh their fiduciary duties to the museum and the ethical obligations to the public against their more immediate responsibilities to the men and women working at the museum.
2. Selling Art to Accommodate Shifting Taste
The deaccessioning of works to meet changing aesthetic tastes should perhaps be the most controversial of all deaccession decisions. Art is of course subject to shifting tastes, and artists and styles move in and out of favour. This shift in the relative merit of any given work cuts both ways. A once-admired artist may fall out of favour while works which were relegated to the margins may be vaulted to the status of masterworks. (183) It may also be true that a museum has become unpopular and its assets could be used for some other purpose. (184) Which contemporary art to buy and which works from previous generations can or should be deaccessioned are extremely thorny questions. The question remains, however--do we want to insist that museums keep all, or nearly all of their works of art, even if they are never displayed? This position may ensure that works are seldom sold, and even that some lost or neglected masterwork may resurface from a museum's seldom-displayed reserves. Yet it seems equally foolish to encourage museums to sell works, which may be very valuable and of extremely high quality, in an unwise effort to compete with the art market and accommodate constantly-shifting tastes?
For example, museums may decide to completely shift focus, and deaccession parts of their collection which are deemed to fall outside their new mission. Such was the case in 2007 when the Albright-Knox in Buffalo, New York, decided to deaccession its permanent antiquities collection in order to allow it to focus on the purchase of contemporary works. (185) The museum shifted gears from a 'universal' museum which provided a sample of a great deal of works of art ranging from antiquity to modern times. While this may have been an acceptable act on the part of the Albright-Knox, it conflicts sharply with the public trust theory of museum collections. One of the works sold was a classical bronze statue, Artemis and the Stag which was sold to a private collector for a then-record $28.6 million. (186) Although the work may be on temporary public display from time to time, it is owned by an anonymous private collector who is free to do whatever he or she wants with the object. The decision by the museum to shift focus was challenged by a number of concerned local citizens; however their attempt to block the sale of the works was unsuccessful. Their legal action seeking a preliminary injunction was denied by a New York Supreme Court because the plaintiffs did not show a likelihood of success on the merits, as the Board of Trustees of the Albright-Knox was deemed to have acted in good faith. (187)
In fact the deaccession of the works of art was due in large measure to the changing economic realities of the city. The Albright-Knox was an integral part of the cultural life of Buffalo; but as that city's economic fortunes changed, so too did the museum. Buffalo had fewer residents in 2000 than in 1900; and more than a quarter of the city's population lives below the poverty line. (188) Despite this, the museum "is probably America's best modern and contemporary art museum with the least money, the smallest fundraising base, and the least-likely-to-improve donor community". (189) Given the economic reality, it makes good sense for museums in regions which have fallen on hard economic times to have the leverage and ability to shift focus and to ensure these institutions remain vibrant cultural centres that can do the most good for their interested public.
3. Isolated Pieces and Redundancies
Museums also sell works of art which bear little relationship to the other works in the collection. A museum may wish to part with a work which does not fit within its focus perhaps, or it may wish to correct an accession decision that was made then for good reasons, but that with the benefit of hindsight does not now seem appropriate. Such was the case in 1923 when the Kunsthistorisches Museum in Vienna sold Manet's The Old Musician, which the Museum had acquired in contemplation of acquiring a later work by Manet, but was never able to do. (190)
Works may be deaccessioned because an institution wants to part with some of its collection in order to fill a gap in a deficient collection. However some argue each work of art is unique and thus can never truly be considered 'redundant'. As one commenter noted "no work of art is a duplicate of another. Prints, meant to be multiple originals, come closest. In painting, sculpture and other media the concept does not exist. Even a chair is not a true duplicate in the sense that it can be disposed of, because a set of four chairs is not the same as four times one chair." (191) Others argue, however, that "there is such a thing as enough Corot landscapes." (192)
Another example was the decision of Thomas Jefferson University in Philadelphia to sell Thomas Eakins' The Gross Clinic, which it had owned since 1878. The University had announced that it was going to sell the painting for $68 million to Wal-Mart heiress Alice Walton, but gave local institutions a right to pre-empt the sale of the work. (193) It made the decision to sell the work in part because the work was not widely visited in its location on the campus. The decision to deaccession was far easier for the University because it did not have a campus art museum; it is instead a medical school, which freed it from the obligation to abide by ethical guidelines--including the AAM, AAMD, or the Association of College and University Museums and Galleries (ACUMG).
A group of Philadelphia museums, philanthropists, and foundations were able to raise $68 million in 45 days to retain the Eakins masterpiece in Philadelphia. (194) The Philadelphia Museum of Art and the much smaller Pennsylvania Academy of Fine Arts were able to raise the funds with the help of a bank loan, to keep the painting. But both museums had to sell works of art to raise acquisitions funds. The Pennsylvania Academy of Fine Arts had to sell The Cello Player, another notable Eakins work. (195) A private individual purchased the work, and we have no way of knowing when or if it ever will be on regular public display again. The Philadelphia Museum of Art also was forced to sell three works by Eakins, including Cowboy Singing. (196) A better, ordered process for the sale and purchase of these works by public institutions can ensure that works of art which belong in the public realm stay there.
IV. How TO REFORM THE PROCESS
This section offers some normative policy changes which should be adopted to remedy the difficulties with the current approach. Museums should define the ways in which they hope to serve their public, so that attorneys general, other museums, and donors all understand how a museum can or should use the works of art which enter its collection. In many deaccessioning scandals, it is not necessarily museum trustees asking the wrong questions, but rather a foundational disagreement about when art should be removed from a collection, or if it should ever be removed from the public trust. To better assist policy makers in navigating this difficulty, we need to have a frank and open accounting of how and why art is sold. If art can never be deaccessioned, we need to have an honest appraisal of the likely consequences of that policy choice--it will almost certainly result in more museum closures and the loss of works from the public trust. This may not always be the result of financial mismanagement on the part of a museum's governance apparatus.
In the face of the likely tide of deaccessions, there is an urgent need for smarter regulation which does not merely say that selling art to buy more art is the only acceptable means of deaccession. To do that, we need to think with more care about what the public interest really requires.
Three changes would allow museums to better serve their public:
1. Eliminate the restriction that proceeds from deaccession can be used only for purchasing more art.
2. When an important work of art is deaccessioned, other institutions and individuals should be given an extended period of time--at least six months--to purchase the work and keep it in the public trust. Similarly, when a work of art carries a special connection to a region, cultural institutions and localities should be given a similar six-month period to attempt to raise the needed funds.
3. When a museum is considering a deaccession, it must publicise its actions, opening the decision up for comments from the public, and should make known the reasons for the deaccession and the purpose for which the funds will be used.
These changes could be implemented at the state level via legislation (such as that which is being proposed by the New York State Assembly); through a federal law, via tax incentive when works are sold at auction, or may be interpreted by courts as the proper discharge of the duties of museum directors and trustees. These sensible rules will allow courts to determine if the public interest is being served in any given context.
A. The Funds Gained from Deaccession
As we have seen, the proposed Brodsky legislation in New York and the AAM and AAMD guidelines insist that proceeds from deaccessioned works of art should be used only for the purchase of other works of art. While the policy is often justified by the public trust doctrine, the rules seldom ensure that works of art actually stay in the public trust. In fact, the current rules seem to assume that museum directors and trustees cannot be trusted with the management of their institutions. Although increased scrutiny and oversight of these actors may certainly be a good idea--indeed state attorneys general should pay closer attention to the decisions of these individuals--the current rules handicap these stewards of our heritage, making it harder for them to serve the broader public. As a consequence museum directors and trustees will probably find much merit in this proposal.
B. Keeping Works in the Public Trust
The current system assumes that if $10 million is raised from a deaccessioning, and those funds are used for purchasing more art, then the exchange is somehow equal. However, attaching a value to works of art is inherently difficult, and the rules should use more care when works of art enter or leave the public trust. This can be accomplished by creating an opportunity for other museums which serve the public interest to match any offer for a deaccessioned work. These committees could be created by the industry governing bodies--the AAMD or the AAM; the Federal government may step in; or states could create them as well. These committees could decide whether any given work should remain in the public trust by measuring them against a set of criteria. Such an approach would ensure that important works of art are kept in the public trust. They could use the export restrictions of the United Kingdom as a guide, and if certain criteria are met, any sale could be delayed for a period--six months perhaps--to allow museums or other institutions to purchase a work and keep it in the public trust. The criteria may look something like this:
1. Is the Object so closely associated with our history and region that its departure would be a misfortune?
2. Is the Object of outstanding aesthetic importance?
3. Is the Object of outstanding significance for the study of some particular branch of art, learning or history?
In fact there is precedent for this approach. In February 1993, the New York Historical Society was forced to close its doors after 188 years. (197) It was forced to sell 183 Old Master paintings in order to try to maintain its operations. (198) The unprecedented sale caused the New York Attorney General to step in and stipulate that qualified institutions could pre-empt the sale of a work, even purchasing it for a discount below the hammer price. Exercising this right, the Met purchased one of those works Triumph of Fame by Lo Scheggia. (199) This was a case in which the Historical Society could no longer survive.
Allowing other museums to have a right to match any offer, and a period to raise the necessary funds would have at least two benefits. First, it would allow a struggling museum to transfer part of its collection to another institution, keeping a work in the public trust, while allowing it to convert some art into badly-needed operating funds. Second, it would indicate the difficulties an institution may be dealing with and may allow wealthy benefactors, or government funders to step in and assist the struggling institution. Although drastic, museums should be able to consider the possibility of selling some of their assets in order to remain solvent before they are forced to contemplate shutting down. Under the current rules, more closures are a very real possibility. When museums close, there is no guarantee that works of art stay in the public trust. Surely the public cannot be served best by a policy in which one narrow interest--acquiring the art--is allowed to prevail absolutely over the very important interest of providing public access, education, research and outreach. The only way museums can serve the interests of the public is if they are given the means to survive, which may require periodically allowing them to deaccession works from their collections. It is unrealistic to demand that museums retain works that do not serve their mission or those for which they cannot care properly, while forsaking the benefits of selling these works to others who might put them to better use.
Such a system exists in the United Kingdom through its limited export restrictions. (200) It is a pragmatic and utilitarian model that allows cultural institutions in the United Kingdom to match any offer for an important work of art which might be sold abroad. The restrictions allow the export of objects generally, but if an object satisfies the Waverley Criteria, export may be delayed to give domestic institutions an opportunity to purchase the object. (201) The United Kingdom's export restrictions draw an effective compromise between retaining exceptionally beautiful or historic objects and the art trade generally. Applying such a measured restriction on works of art that are deaccessioned would allow financially-troubled institutions to raise badly-needed funds, and allow the works of art that belong in the public trust to remain there. Such an approach would allow the ordered redistribution of wealth in cases in which museums are unable to continue to meet basic financial obligations. Many in the United Kingdom may want works of art to remain there, just as arts advocates decry the sale of works from a museum's permanent collection. By taking a sensible approach to export restrictions, the UK regime allows British cultural institutions an opportunity to keep important works in the country. A similar set of incentives should be employed when museums deaccession works of art. In this way, museums are prevented from instituting quick deaccessions, and other museums in the region can have an opportunity to purchase works of art which may be linked in an important way with that city or region. (202) This ensures museums are given the opportunity to keep a work of art in the public trust, and gives them the time to raise funds in order to accomplish this task.
The Getty Museum recently purchased J.M.W. Turner's Modern Rome--Campo Vaccino from a private individual in the United Kingdom for $44.9 million at Sotheby's. (203) The painting was purchased by the Earl of Rosebery in 1878 in Rome, and had been on loan to the National Galleries of Scotland in Edinburgh since 1978. (204) So because the family decided to sell the work, and because no funding or buyer could come forward to match the purchase price, the work was granted an export permit and is not on display at the Getty in Los Angeles.
This opportunity to match apurchase price would prevent deaccessioned works from leaving the public trust, by allowing for a first option for other museums or public institutions. When museums must quickly purchase works of art at an auction, they are competing with wealthy private bidders who are not required to negotiate boards and ethical obligations. Private buyers are more nimble than their institutional counterparts. For example, in 2005 the New York Public Library decided to sell its Asher B. Durand Hudson River School painting Kindred Spirits in order to replenish its endowment. (205) Sotheby's acted as the library's agent. The work was sold to the Crystal Bridges Museum in Arkansas during a sealed-bid auction in which a joint bid by both the Met and the National Gallery fell short of the estimated $35 million offered by Alice Walton. (206) The Sotheby's bid system "virtually ensured that the work ... would not end up in a New York Museum." (207) The disposition of works so integral to the public trust demand more careful attention. Experts may disagree about whether the work belonged in New York, but at the very least a panel of experts should be given the opportunity to take up the question, and offer public institutions an opportunity to keep important works in the public trust. Museums can be better stewards of our collective cultural heritage if states or the AAMD adopt restrictions similar to the Waverley Criteria, and allows for a period during which museums can raise funds for a purchase.
C. Publicising Deaccessions
The deaccession process needs to be made transparent. Museum directors and trustees often prefer not to announce deaccessioris because they do not want the unpleasant criticism which accompanies these decisions. In other cases museums may justify a sale by claiming they are selling a work which is inferior or seldom exhibited--however the reality may often be quite different. The St Louis Museum of Art sold a work by Jean Metzinger, Landscape, in 2007 by claiming it was rarely exhibited. However it had been displayed regularly between 2002 and 2006. (208) By hiding the deaccessioning of works, museums serve only to cloud the issues and make it more difficult for a reasoned appraisal. One museum which has decided to make all its deaccessions public is the Indianapolis Museum of Art which discloses in advance any works from its permanent collection which it is contemplating selling. (209) The IMA also has set up a searchable database of artworks which may be deaccessioned. It has also created a clear set of guidelines governing deaccession. (210) The website allows for public comment, including a comments link which allows concerned members of the public to voice their opinion. If an object has been sold, the website tells when and where the sale has or will take place and the price if the work has been sold.
Criticism of deaccession is often not just about maintaining public access and use, but is also an argument for a region retaining its art. This kind of regionalism may benefit certain publics in some cases, but not in every case. When works of art are held in the public trust, our collective rights in these works are promoted. If we properly apply the doctrine, it promotes the substantive values of the public interest in maintaining works of art for study and enjoyment, while also promoting the procedural values of allowing other institutions the opportunity to purchase deaccessioned works, and to ensure deaccession occurs as a careful measure of last resort.
Museums should strive to make works of art available to the widest possible audience; they should work to create the best possible connection between works of art and the public. By examining the role museums play in society, we have seen that these cultural resources are not always used in a way which benefits the public. In fact the current industry norms and laws governing deaccession make it more difficult for museums to accomplish their important missions. The funding sources for the arts are shrinking at an alarming rate, and without the benefit of a sensible and pragmatic deaccession policy, cities may risk losing their art collections. Although in the past museums may have been guilty of complacency when confronted with financial difficulty, the current funding and economic climate are forcing more and more museums to make difficult decisions. In an ideal world museums should never be forced to deaccession, but when they do, they should do so with the benefit of a clear set of guidelines and procedures which allow for public comment and debate, and ensure important works of art maintain their connection to their interested public and region. Museums are stewards of our collective cultural heritage, and more care should be taken when evaluating how these works leave the public realm.
(1) See below, note 178.
(2) Scott Raecker, an Iowa state representative, was roundly criticised for asking whether the University of Iowa should consider selling Jackson Pollock's Mural (1943) which might raise as much as $150 million dollars for student scholarships and arts funding. Donald Kuspit, 'Pollock's Mural: A Clear Choice?', ARTNET, 24 Feb. 2011, <http://bit.ly/eAI0rl>
(3) N.Y. Educ. Law [section] 233-a(1)(b) (McKinney 2010).
(4) John Canaday, 'Very Quiet and Very Dangerous', NewYork Times, 27 Feb. 1972.
(5) As the leading text on museum management notes with respect to deaccession, "The definition presupposes that the object in question was once accessioned, that it was formally accepted and recorded as an object worthy of collection status." See Marie C. Malaro, A Legal Primer on Managing Museum Collections 217 (2nd edn 1998).
(6) 'Fresno Met to Sell Items at Auction', Fresno Bee, 2 Feb. 2010, http://www.fresnobee.corrd2010/02/02/1807018/fresno-met-to-sell- items_at_auction.html; George Hostetter, 'Art Sales from Met Museum Not Paying Off for Fresno', Fresno Bee, 6 Jan. 2011, <http://www.fresnobee.com/2011/01/06/2222510/art-sales-from-met- museum_not.html#storylink=mirelated> (last visited 24 Jan 2011).
(7) Arts commentator and independent reporter Judith Dobrzynski argues with respect to Fresno, a city bigger than Pittsburgh, "Fresno is simply too big to be left without local access to art for its citizens". Judith H. Dobrzynski, Fresno Museums: One Down, Another On The Brink?--UPDATED, 'Real Clear Arts', (16 Feb. 2010, 4:40 PM), <http://www.artsjournal.com/realcleararts/2010/02/fresno-update.html>.
(8) Lindsay Pollock, 'American Art Weak at Sotheby's and Christie's New York Sales Despite Museums' Clear-Out',ArtNewspaper, 24 June 2009, <http://www.theartnewspaper.coxrdarticles/American-artweak-at-Sotheby-s-and- Christie-s-New-York-sales-despite-museums'clear-out/17498> (last visited 25 Jan. 2011).Eric Widing, Christie's Auction House American painting director, noted: "For decades American museums sold very little American art. They felt required to hold on to everything they were given", adding "It]here has been a cultural change and museums recognise you don't have to keep everything in the basement.".
(9) James Panero, 'Another Art Museum Puts Its Collection on the Block', Wall Street Journal, 15 April 2009, <http://online.wsj.com/article/SB123974676917018355.html>
(10) Mike Boehm, 'LACMA's Deacccessioned Old Masters: One Down, One to Go', Culture Monster (6 Mar. 2009, 11:15 AM), <http://latimesblogs.latimes.com/culturemonster/2009/03/ laemadeaccessi.html>.
(11) Mike Boehm, 'Criticism of OCMA Mounts: A San Diego Museum Director Says the Sale of Art to a Collector Erodes 'Civic Behavior and Collegiality' L.A. Times, 19 June 2009, <http://articles. latimes.com/2009/jun/19/entertainment/et-ocma19>.
(12) See e.g., Carol Vogel, 'Leonardo Notebook Sells for $30.8 Million', N.E 77mes, 12 Nov. 1994 (reporting the sale by the Armand Hammer Museum of Art and Cultural Center at the University of California at Los Angeles which had to sell Leonardo da Vinci's Codex Hammer in order to defend a lawsuit challenging ownership of the collection); see also Lee Rosenbaum, 'Op-Ed Rush to Auction', N. Y. Times, 26 Nov. 1994.
(13) Lee Rosenbaum, 'Repose for Iowa's Pollock? Museum's Director Is Optimistic' CultureGrrl, (13 Aug. 2008 10:53 AM), <http://www.artsjournal.com/eulturegrrl/2008/08/ repose_for_iowas_pollock_museu.html>
(14) The non-profit International Council of Museums states "[a] museum is a non-profit, permanent institution in the service of society and its development, open to the public, which acquires, conserves, researches, communicates and exhibits the tangible and intangible heritage of humanity and its environment for the purposes of education, study and enjoyment." International Council of Museums Statutes, Art. 3.1 (2007), available at <http://archives.icom.museum/statutes.html#3>
(15) For example university arts funding has been drastically slashed in recent years. The Louisiana State University Museum of Art has seen its funding slashed by 20%, and the way in which arts programmes are suffered means those programmes often take a disproportionate cut when institutions cut funding. See Patricia Cohen, 'Arts Programs in Academia Are Forced to Nip Here, Adjust There', NY Times, 10 Aug. 2009, at C1.
(16) As the Orphans' Court of Pennsylvania noted in deciding whether the Commissioners of Fairmount Park could sell works of art which were donated upon the death of Anna H. Wilstach in 1892: "An art museum, if it is to serve the cultural and educational needs of the community, cannot remain static. It must keep abreast of the advances of the times, like every other institution whose purpose is to educate and enlighten the community." In re Wilstaeh's Estate, 1 Pa. D. & C. 2d 197, 207 (Pa. Orph. 1955).
(17) See below, notes 172-196.
(18) Press Release, Association of Art Museum Directors, Association of Art Museum Directors Mid-Winter Meeting Held in Sarasota (15 Jan. 2010) (available at <http://aamd.org/newsroom/ documents/AAMD2010MidWinterMeetingPressRelease_000.pdf>).
(19) 'London Museums Urged to Show more Works', BBC, 18 Jan. 2011, <http://www.bbc.co.uk/news/ mobile/uk-england-london-12214145> (last visited 31 Jan 2011).
(21) One observer noted how difficult ensuring this kind of permanency is: "Nobody--or almost nobody- gets hurt when [an organisation] sells off works that it never exhibits or intends to exhibit. A second-rate Gerome or Rosa Bonheur ... can surely be dispensed with ... Of course, there is always someone with access to the reserves, if only a graduate student writing a dissertation on an obscure dauber, who will be unhappy over the decision, but ... his interests can, and should, be sacrificed." John Michael Montias, 'Are Museums Betraying the Public's Trust?', 51 Museum News, May 1973, at 25, 27 (1973), reprinted in 19 3'.. CulturalEcon. 71, 74 (1995).
(22) In late 2008, the National Academy Museum deaccessioned two Hudson River School paintings. It was facing a severe financial crisis, and claimed its only other option was to sell its premises on Fifth Avenue in New York city. The AAMD responded quickly, censuring the institutions, requesting its members to suspend any loans to the Academy and to cease any collaboration on exhibitions. Press Release, AAMD, AAMD San Diego Meeting Featured Lively Discussion of Current Issues Affecting America's Art Museums, (2 Feb. 2009) available at http://bit.ly/fpB48p; 'AAMD Censures National Academy Museum', ARTINFO 5 Dec. 2008, <http://www.artinfo.com/ news/story/29702/aamd-censures-national-academy-museum/>'
(23) Howard L. Oleck and Martha E. Stewart, Nonprofit Corporations, Organizations & Associations 1-2 (6th edn 1994).
(24) See Marion R. Fremont-Smith, 'The Search for Greater Accountability of Nonprofit Organizations: Recent Legal Developments and Proposals for Change', 76 Fordham L. Rev. 609 (2007). For example, California recently adopted such a change. California Nonprofit Integrity Act, Cal. Gov't Code [section] 12586 (West 2004).
(25) See Evelyn Brody, 'The Board of Nonprofit Organizations: Puzzling Through the Gaps Between Law and Practice', 76 Fordham L. Rev. 521,559 (2007).
(26) See John K. Eason, 'The Restricted Gift Life Cycle, or What Comes Around Goes Around', 76 Fordham L. Rev. 693 (2007); Glenn v. Univ. of S. Cal., NO. B151776, 2002 WL 31022068, at * 4-5
(Cal. Ct. App. 2 Sept. 2002) (holding that allegations of improper use of funds made by a donor were sufficient to plead causes of action for common law and statutory misappropriation).
(27) In 1993 an independent advisory committee recommended that the New York Historical Society cut staff and sell $20 million from its collection after it was forced to close its doors. Michael Kimmelman, 'Critic's Notebook; Selling Art to Save Historical Society: A Painful Remedy', NY Times, 18 March 1993.
(28) Cleveland Museum of Art v. O'Neill, 129 N.E.2d 669, 670 (1955).
(29) See, e.g., See Jennifer L. White, 'When It's OK to Sell the Monet: A Trustee-Fiduciary-Duty Framework for Analyzing the Deaccessioning of Art to Meet Museum Operating Expenses', 94 Mich. L. Rev. 1041 at 1065-66 (1996), reprinted in (1996) I Art Antiquity and Law 375 (arguing that museums should be permitted to deaccession to raise operating funds so long as the trustees are held to the trust standard of conduct); Jason R. Goldstein, 'Deaccession: Not Such a Dirty Word', 15 Cardozo Arts & Ent. L. J. 213,246 (1997) (arguing for greater acceptance of deaccessioning so long as it is subject to public disclosure and judicial review through the cy pres doctrine).
(30) In People ex rel. Scott v. Silverstein, 408 N.E.2d 243, 245 (Ill. App. Ct. 1980), the Illinois state attorney general alleged that trustees of the George F. Harding Museum secretly sold a work from the collection and sold other objects to cover budget deficits caused by their own excessive salaries. In re Estate of Rothko set the standard for sales in breach of trust when the fiduciaries had an obligation to retain the art works, although that case involved estate executors and foundation trustees, rather than museum trustees. 372 N.E.2d 291, 319 (N.Y. 1977).
(31) Martha Finnemore and Kathryn Sikkink, 'International Norm Dynamics and Political Change', 52 Int'l Org. 887 at 891 (1998).
(32) Robert D. Cooter, 'Three Effects of Social Norms on Law: Expression, Deterrence, and Internalization', 79 Or. L. Rev. 1 at 4-5 (2000).
(33) Marie C. Malaro, 'The Museum's Perspective', 297 PLI/Pat 849 at 853 (1990).
(34) American Ass'n of Museums, Code of Ethics for Museums (2000), <http://www.aam-us.org/museumresources/ethics/coe.efm> (last accessed 5 Jun. 2009).
(35) American Ass'n of Art Museum Directors, 'Art Museums and the Practice of Deaccessioning' (2007), <http://www.aamd.org/papers/documents/FINALPositionPaperDeaccessioning.doc> (last accessed 5 Jun. 2009).
(38) See In re the Barnes Foundation, 69 Pa. D. & C.4th 129 (Orphans' Ct. 2004).
(39) John Hechinger, 'Brandeis Faces Suit Seeking to Stop Plans to Sell Art', Wall Street Journal, 27 Jul. 2009, <http://online.wsj.com/article/SB124872539024884721.html>.
(40) Tamar Lewin, 'Brandeis Halts Retirement Payments', N.Y. Times, 21 May 2009, <http://www.nytimes.com/2009/05/22/education/22college.html?ref=business>, (Roland King, vice president for public affairs at the National Association of Independent Colleges and Universities states in the piece "There is this perception that the nonprofit world is maybe a gentler, kinder world than corporate.... So some people seem to perceive this as a breach of faith, especially since many people go into nonprofit work at less salary, because the benefits are so good. But we are absolutely at a point in this economy where these sort of things have to be on the table.").
(41) Richard Lacayo, 'Looking Around', <http://lookingaround.blogs.time.cong2008/12/30/hard.sell/> (30 Dec. 2008, 6:17 PST).
(42) As Professor Gerstenblith notes: "IT]he donor who wishes to do this must be careful to draft the restriction in a legally enforceable manner by creating in the donee a fee simple subject to a future interest, such as a possibility of reverter or an executory interest. If the restriction is properly created, then the donee would forfeit the property upon violation of the restriction. The property would then either revert to the donor or the donor's estate or pass to a third party so long as the third party is another charitable institution, thereby making the gift-over exempt from the Rule Against Perpetuities. It is often not in the interest of a museum to accept a gilt with such forfeiture provisions." Patty Gerstenblith, 'Acquisition and Deacquisition of Museum Collections and the Fiduciary Obligations of Museums to the Public', 11 Cardozo J. Int'l & Comp. L. 409, 420-21, n. 57 (2003).
(43) See below, notes 58-66 and accompanying text.
(44) Museums can take three basic forms. They may take the form of a charitable trust if formed under the terms of someone's trust instrument, such as the Getty Museum in California, or the Barnes Museum in Pennsylvania. Ifa museum incorporates under a not-for-profit incorporation law of the state, it will be a charitable corporation. Third, museums may be operated by the government.
(45) See N.C. Gen. Stat. [section] 140-5.14(9) (2009).
(46) See Wis. Stat. Ann. [section] 229.11,229.18 (West 2009). In Wisconsin annual disclosures of all elements of a museum's finances must be disclosed, which may allow the public to challenge a decision by a Wisconsin museum to deaccession.
(47) For a list of states with legislation which attempts to regulate deaccession in some specific contexts, see Linden Havemeyer Wise and Beverly M. Wolff, 'Deaccessioning, Disposition, and the Pledge of Museum Collection: The Legal Parameters', C579 ALI-ABA 107, 119-21 (1991).
(48) See Restatement (Second) of Trusts [section] 391 (1959) (stating that "[a] suit can be maintained for the enforcement of a charitable trust by the Attorney General or other public officer, or by a co-trustee, or by a person who has a special interest in the enforcement of the charitable trust, but not by persons who have no special interest or by the settlor or his heirs, personal representatives or next of kin").
(49) See, e.g., Elaine L. Johnston, 'Deaccessioning to Raise Operating Funds: Recent Cases, in Legal Problems of Museum Administration' 169-74 (A.L.I.-A.B.A. 1993) discussing Hammond Museum, Inc. v. Harshbarger, No. 92E-0067-GI (P. & Fam. Ct. Essex County, Mass. 5 Oct. 1992) noting that the court issued a judgment stating that the museum was authorised to make the sale and use the proceeds "if residual funds are available, to preserve the remaining artifacts of the museum an purchase similar ones, and do repairs, maintenance, and to make necessary improvements on the museum's real estate insofar as any of these are necessary to keep the museum open and functioning"; also discussing Trustees of the Everhart Museum v. Commonwealth of Pennsylvania, Court of Common Pleas of Lackawanna County, Pennsylvania, Orphans' Court Division, No. 1043-92 (25 Aug. 1992); see, e.g., In re Gary's Estate, 288 N.Y.S. 382, 383-84 (N.Y. Sup. Ct 1936) (holding a restriction on a gift made to the Metropolitan Museum New York had become impractical, allowing a museum to sell a large collecting of donated objects).
(50) See, e.g., White, above, note 29 at 1046-47 n.23.
(51) Alco Gravure, Inc. v. Knapp Foundation, 479 N.E.2d 752 (N.Y. 1985).
(52) See Carolyn C. Clark, 'Looking the Gift Horse in the Mouth: Donor Restrictions on Charitable Giving, in New York' Practice Skills Course Handbook Series 377, 389-91 (P.L.I.-N.Y. 2009); discussing Consumer Union of U.S., Inc. v. New York, No. 119699/02 (N.Y. Sup. Ct. 1 Oct. 2003). "In granting standing, the court noted that the Attorney General was conflicted since he represented the state, which defended the conversion, and the court held that the policy holders had a 'special interest'". Id.
(53) Stephan Salisbury, 'History Panel will Consider 'Gross Clinic' ' Philadelphia Inquirer, 29 Nov. 2006 B01.
(54) See, e.g., Jonathan Klick and Robert H. Sitkoff, 'Agency Costs, Charitable Trusts, and Corporate Control: Evidence from Hershey's Kiss-Off', 108 Colum. L. Rev. 749, 816-19 (2008). Iris J. 'Donor Standing To Enforce Charitable Gifts: Civil Society vs. Donor Empowerment', 58 Vand. L. Rev. 1093, 1136-39 (2005); Evelyn Brody, 'Whose Public? Parochialism and Paternalism in State Charity Law Enforcement', 79 Ind. L.J. 937, 946-50 (2004); Susan N. Gary, 'Regulating the Management of Charities: Trust Law, Corporate Law, and Tax Law', 21 U. Haw. L. Rev. 593,622-24 (1999).
(55) Klick & Sitkoff, above, note 54 at 614; pointing out that some have said 'A.G.' should stand for 'aspiring Governor'.
(56) Scott and Ascher on Trusts [section] 37.3.10, at 2436-37 (5th edn 2008) [hereinafter Scott on Trusts].
(57) Malaro, above, note 5 at 224, n. 22.
(58) Georgia O'Keeffe Foundation (Museum) v. Fisk University, 2009 WL 2047376 at *1 (Tenn. Ct. App., 2009).
(59) In a letter to Fisk University President, Dr Charles S. Johnson, Ms O'Keeffe stated: "Pursuant to the authorization given me as Executrix of the Last Will and Testament of Alfred Stieglitz, deceased, by the decision of the Surrogate's Court of New York County rendered May 19, 1949, I do hereby assign and transfer to Fisk University the various objects previously delivered to it from the Stieglitz Estate on permanent loan....
"It is my understanding that Fisk University will not at any time sell or exchange any of the objects in the Stieglitz Collection ... and that it will lend The Gaboon Figure to the Museum of Modern Art every three years for a period of three months if requested to do so." Id. at * 3.
(60) Id. at * 5.
(62) In re Fisk University, 2007 WL 5877151 (Trial Order) (Tenn.Ch. Apt 27, 2007) (NO. 05-2994III).
(63) In re Fisk University, 2009 WL 2047376 at "5-9.
(64) Id. at * 10.
(65) Id. at * 11-13.
(66) "[T]he charitable intent motivating the gifts of the Stieglitz Collection and Ms O'Keeffe's four pieces to the University was to make the Collection available to the public in Nashville and the south for the benefit of those who did not have access to comparable collections to promote the general study of art." ld. at '14.
(67) See below, notes 203-34 and accompanying text.
(68) Theo Emery, 'Tennessee Voids Settlement for Sale of Paintings by Fisk', N. Y. Times, 6 Apr. 2007, <http://www.nytimes.eom/2007/04/06/us/06fisk.html>.
(69) See above, note 39.
(70) New York Senate Proposed Bill A6959. Brodsky and others have brought legislation to regulate the practice in New York before, including the Brodsky/Pillittere Bill (June 1991), No. 8531, and the Grannis Bill (1989-1990), A. 3835, cited in Malaro, above, note 5 at 220, n. 9.
(71) New York Senate Proposed Bill A6959 [section] 8(a)-(i).
(72) Robin Pogrebin, 'Bill Seeks to Regulate Museums' Art Sales', New York Times, 18 Mar. 2009 at C 1.
(73) Christine Miles, 'Legislature's Meddling Hurts State's Museums', Albany Times Union, 5 Jul. 2009, at B 1.
(74) New York City Bar Committee on Art Law, Letter to Richard Brodsky, 21 May 2009, available at <http://www.scribd.com/doc/15831924/52109-Letter-to-AM-Brodsky-Re-Museum- DeaecessioningBill>. Some libraries and archives may be negatively impacted by the proposed bill which defines museums so broadly that most libraries in the state would mn into difficulty disposing of material no longer needed by the library.
(75) Mary Varson Cromer, Note, 'Don't Give Me That!: Tax Valuation of Gifts to Art Museums', 63 Wash. & Lee L. Rev. 777, 780 (2006).
(76) Scott on Trusts [section] 399.
(77) Museum of Fine Arts v. Beland, 735 N.E. 2d 1248, 1251 (2000).
(78) See Patty Gerstenblith, 'The Fiduciary Duties of Museum Trustees', 8 Colum. J. Art & L. 175, 179 (1983).
(79) Such was the case with the de Groot bequest. The bequest read: "All other works of art owned by me at the time of my death and not effectively disposed of under any of the foregoing provision of this Will, I give and bequeath to said Metropolitan Museum of Art. Without limiting in any way the absolute nature of this bequest, I request said Metropolitan Museum of Art not to sell any of said works of art, but to keep such of said works of art as it desires to retain for itself, and to give the balance to such one or more important Museums as said Metropolitan Museum of Art shall select...." Metropolitan Museum of Art, Report on Art Transactions 1971-1973 (20 June 1973), reprinted in John Henry Merryman and Albert E. Elsen, Law, Ethics and the Visual Arts, at 7-116, 7-132 (1979). Karl Meyer addressed the Metropolitan's questionable interpretation by writing, "[de Groot's] wish, expressed in her will even if not in terms that were legally binding, was that the Metropolitan give to other museums ... any works it did not want ... Was the spirit of the bequest violated by ignoring a donor's wishes?" Karl E. Meyer, The Plundered Past 52-53 (1973). Paul Bator, in a letter to the New York Times during the scandal, wrote, "[t] he de Groot paintings were left to the museum on the donor's express request that they not be sold and that, if the Metropolitan did not wish to keep them, they be kept in the public domain by gifts to other museums." Paul M. Bator, 'Letter to the Editor', N. Y Times, 23 Jan. 1973.
(80) Deviation is a similar kind of legal measure. In one case a donor gave a restricted gift to the Cleveland Museum of Art, with the terms of the gift stipulating that the funds could be used only to purchase works of art. The museum wished to use the funds for expansion and improvement to the buildings. Upon an application to the court it was found, applying deviation, that the settlor's purpose was maintenance of the museum and allowing the use of the trust funds for construction of new facilities. The court held that if the settlor were alive he would have allowed the funds to be used as the museum intended. Cleveland Museum of Art 129 N.E.2d 669.
(81) This dead hand control may severely limit a charitable institution's ability to respond to changes in circumstances. See Joseph A. DiClerico, Jr., 'Cy Pres: A Proposal for Change', 47 B. U. L. Rev. 153, 155 (1967).
(82) See Rob Atkinson, 'Reforming Cy Pres Reform', 44 Hastings L.J. 1111, 1114(1993).
(83) One such limiting rule is the rule against perpetutities. See In re Rolston's Will, 253 N.Y.S.2d 614, 617 (Sup. Ct. 1964) (holding that the rule against perpetuities does not apply to the duration of a charitable trust).
(84) See Bogert et al., The Law of Trusts and Trustees 431 (rev. 2nd edn 1993) (discussing the value of the rule in dealing with changed circumstances in charitable bequests). But see Board of Trustees of the Museum of the Am. Indian v. Board of Trustees of the Huntington Free Library and Reading Room, 610 N.Y.S.2d 488, 501 (N.Y. App. Div. 1st Dept. 1994) (assessing the negative effects of cy pres on charitable giving as substantial enough to impose stringen dispositionally-based conditions on the use of the cy pres power).
(85) Huntington Free Library, 610 N.Y.S.2d at 495 (finding that N.Y. Est. Powers & Trusts Law 8-1.1(c)(1) prevents the failure of charitable trusts when the general purpose of the disposition is possible to accomplish); In re Estate of O'Brien, 627 N.Y.S.2d 544, 547 (Sup. Ct. 1995) ("It is not the policy of the courts of this state to allow a gift in which the testator evidences a general charitable intent to fail."); cf. Mass. Gen. Laws Ann. ch. 12, [section] 8k (West 2009) ("A gift made for a public charitable purpose shall be deemed to have been made with a general intention to devote the property to public charitable purposes, unless otherwise provided in a written instrument of gift").
(86) An impracticable situation in a charitable trust is one in which, "it is possible to carry out the particular purpose of the settlor ... [but] to carry it out would fail to accomplish the general charitable intention of the settlor." Restatement (Second) of Trusts [section] 399 cmt. q (1959).
(87) Restatement (Second) of Trusts [section] 399 cmt. d (1959).
(88) See, e.g., Ga. Code Ann. [section] 53-12-113 (2009) (requiring that if a "bequest, trust, or gift cannot be executed in the exact manner provided.., the superior court will exercise equitable powers in such a way as will nearly as possible effectuate the intention of the testator, settlor, or donor."); N.Y. Est. Powers & Trusts Law [section] 8-1.1(c) (McKinney 2010) (allowing application of cy pres when literal compliance with general purposes has become impossible or impracticable); see also Bogert et al., above, note 84, at [section] 433 (noting that for choice of law purposes, federal courts will apply the law of the jurisdiction in which the trust would be adjudicated in a state court; no federal cy pres law exists).
(89) See below, part III.C.2.
(90) Francis v. United Jersey Bank, 432 A.2d 814, 820 (1981) (noting "The problem is particularly nettlesome when a third party asserts that a director, because of nonfeasance, is liable for losses caused by acts of insiders....").
(91) Cheffv. Mathes, 199 A.2d 548, 555 (1964).
(92) See Barnes v. Andrews 298 F. 614, 615-16 (S.D.N.Y. 1924).
(93) See above, notes 125-128 and accompanying text.
(94) See William Baumol, 'Unnatural Value: Or Art Investment as a Floating Crap Game', 15 J. Arts Mgmt. & L., 47 (Fall 1987) (arguing that art "prices can float more or less aimlessly and their unpredictable oscillations are apt to be exacerbated by the activities of those who treat such art objects as "investments," and who, according to the data, earn a real rate of return very close to zero on the average."). See also Jeffrey C. McCarthy, 'Federal Income Taxation of Fine Art', 2 Cardozo Arts & Ent. L.J. 1, 7-24 (1983).
(95) See Kenneth Karst, 'The Efficiency of the Charitable Dollar: An Unfulfilled State Responsibility', 73 Harv. L. Rev. 433,434 (1960).
(96) Arts journalist and commenter Tyler Green argues " If an institution.., can't operate effectively enough to stay open, it should close. Then it should disperse its collection to non-profit institutions--to other museums. This way art collections held in a public trust remain held in a public trust. There is no reason that failed institutions should have nine lives. When they've failed, they've failed." 'Modern Art Notes', <http://www.artsjournal.com/man/2009/01/failure_is_an_option.html>_ (5 Jan. 2009, 11:06 EST).
(97) Judith Dobrzynski, OP-ED: 'The Art of the Deal', N. Y TIMES, I Jan. 2010, A21.
(98) Javier Pes & Helen Stoilas, 'Recovery After Annus Horribilis: But Directors are Still Making Cuts in Museum Budgets', Art Newspaper, 28 Jan. 2010, <http://www.theartnewspaper.com/articles/ Recovery-after-annus-horribilis/20186>.
(101) Patricia Cohen, 'Arts Programs in Academia Are Forced to Nip Here, Adjust There', New York Times, 10 Aug. 2009 at A20.
(102) John Hechinger, 'New Unrest on Campus as Donors Rebel', Wall St. J., Apr. 23, 2009 <http://online.wsj.com/article/SB124043394794145007.html>.
(103) See above, notes 58-66 and accompanying text.
(104) Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. No. 107-16, 501,115 Stat. 38, 69.
(105) Elizabeth Schwinn and Ziya Serdar Tumgoren, 'The Megagift Plunge', Chronicle of Philanthropy, 20 Feb. 2003, at 6.
(106) See Religious Liberty and Charitable Donation Protection Act of 1998, Pub. L. No. 105-183, [section]3, 112 Stat. 517, 518; William H. Gates, Sr. and Chuck Collins, 'Tax the Wealthy: Why America Needs the Estate Tax', Am. Prospect, 17 June 2002.
(107) See Martha Lufkin, 'Why Some Millionaires Want This Tax', Art Newspaper, Mar. 2001, at 1.
(108) See Ceci Connolly, 'President Pivots on Taxing Benefits', Washington Post, 2 Jun. 2009, <http://www.washingtonpost.com/wp-dyn/content/article/2009/06/02/ AR2009060201491.html>. The proposed health-care overhaul proposed by Senator Max Baucus may also limit to 35% the tax break that wealthy individuals can receive for itemised deductions to charity. Suzanne Perry, 'Senators Propose Charitable-Deduction Limits in Health Bill', Chronicle of Philanthropy, 23 Sep. 2009, <http://philanthropy.com/news/updates/index.php?id=9571>.
(109) A poll of 665 non-profits found that 51% saw a drop in fundraising in 2009. Miriam Souccar, 'Charities Get More Donors, Fewer Dollars', Crain's New York, 16 Oct. 2009, <http://www.crainsnewyork.com/article/20091016/FREE/910169993>.
(110) See Robert C. Lind et al., Art and Museum Law: Cases and Materials 505-06 (2002).
(111) Alfred Knoll, Museums -A Gunslinger's Dream, 10 (1975).
(112) Karl E. Meyer, The Art Museum: Power, Money, Ethics: A Twentieth Century Fund Report (1979) reprinted in Patty Gerstenblith, Art, Cultural Heritage, and the Law 234 (2nd edn, 2008).
(113) Some have argued there has been far too much scrutiny of philanthropic organisations, which may fundamentally change the philanthropy-government relationship. Evelyn Brody and John Tyler, 'How Public is Private Philanthropy?: Separating Reality from Myth' 9-10 (The Philanthropy Roundtable, 2009).
(114) The recent wave of repatriation from American museums may be the best example of the shift in approach. See Christopher Chippindale and David Gill, 'From Malibu to Rome: Further Developments on the Return of Antiquities', 14 Int'l J. of Cultural Prop. 205 (2007).
(115) Willard L. Boyd, 'Museums as Centers of Controversy, America's Museums', Daedalus, Vol. 128:3, Proceedings of the American Academy of Arts and Sciences 185,199-203 (1999).
(116) See above, notes 31-40 and accompanying text.
(117) Linda Sugin, 'Resisting the Corporatization of Nonprofit Governance: Transforming Obedience into Fidelity', 76 Fordham L. Rev. 895 (2007).
(118) See Dana Brakman Reiser, 'Eron.org: Why Sarbanes-Oxley Will Not Ensure Comprehensive Nonprofit Accountability', 38 U.C. Davis L. Rev. 205, 218 (2004); Peggy Sasso, 'Comment, Searching for Trust in the Not-for-Profit Boardroom: Looking Beyond the Duty of Obedience to Ensure Accountability', 50 U.CL.A.L. Rev. 1485, 1528 (2003).
(119) Take for example another difficult mission which currently faces Universities which maintain major athletic programmes. It can be persuasively argued that many universities encourage their coaches to sacrifice academics because they compensate those coaches more highly if student-athletes win games than if they excel in the classroom. See Burton Weisbrod, 'Address at the Forhdam Law Review Symposium: Nonprofit Law, Economic Challenges, and the Future of Charities' (30 Mar. 2007), cited in Sugin, above, note 117 at 896, note 15.
(120) See the comments of Tyler Green, above, note 96 (arguing "The perpetuation of a failed institution isn't what's important: The art is. It's imperative that organizations do what is best for the art, for the public, and for the legacy of the artists whose work is in the collection. Sometimes that means closing.").
(121) John Canaday, 'Very Quiet and Very Dangerous', N.Y. Times, 27 Feb. 1972, at D21.
(122) Meyer, above, note 79, at 51-53.
(123) Theodore Rousseau, the chief curator at the Met admitted "What really sparked all this was the acquisition of a really great work of art--the Velazquez--and we had to make some sacrifices." /d. at 51-53.
(124) Jason Felch and Ralph Frammolino, 'Italy Says It's Proven Vase at Met Was Looted', L.A. Times, 28 Oct. 2005, <http://articles.latimes.com/2005/oct/28/local/me-met28>.
(125) In fact, many relatives and supporters of de Groot denounced the deaccession of the works donated. Meyer, above, note 122 at 53.
(126) 'Art: The Met: Beleaguered but Defiant', Time Magazine, DATE? 1973, <http://www.time.com/time/magazine/article/0,9171,910568,00.html> (last visited 24 Jan 2011).
(127) Egbert Haverkamp-Begemann, 'The Price is Never Right', 51 Museum News, May 1973, at 67.
(128) John Rewald, 'Should Hoving be Deaccessioned?', 61 Art in Am. 25 (1973).
(129) See e.g., Weintraub, above, note 132, at 8.
(130) See e.g., Williams, above, note 126.
(131) Consider a Cezanne landscape sold during this controversial deaccessioning period at the Met in the early 1970s. The work had been purchased in 1913. In 1972, the work was in need of restoration, and yet the curator refused because he was worried it would damage the thinly painted work. When the work was slated for deaccessioning, another Met staff member had the work cleaned, unbeknownst to other staff members. The restoration was successful, and it highlighted the magnitude of the error, and in fact the work was "one of the very few that satisfied Cezanne sufficiently to lead him to sign his name". David R. Gabor, 'Deaccessioning Fine Art Works: A Proposal for Heightened Scrutiny', 36 U.C.L.A.L. Rev. 1005, 1016 (1989).
(132) Harry Weintraub, 'Museums With Walls: Public Regulation of Deaccessioning and Disposal', Art &Law 1, 8 (Fall 1975).
(133) See, e.g., James Cuno, "The Object of Art Museums,' in Whose Muse?: Art Museums and the Public Trust 49, 52 (James Cuno ed., 2004) (describing the contract between the museum and the public to "acquir[e], preserv[e], and provid[e] access" to art).
(134) For a notable exception, see; see also Patty Gerstenblith, 'Identity and Cultural Property: The Protection of Cultural Property in the United States', 73 B.U.L. Rev. 559, 642 (1995) (proposing a model for the recognition of group rights to ownership of cultural property via the public trust doctrine); see also The Public Trust and the First Americans (Ruthann Knudson and Bennie C. Keel eds, 1995).
(135) Patty Gerstenblith, 'The Fiduciary Duties of Museum Trustees', 8 Colum.-VLA J. L. & Arts 175, 192-93 (1983).
(136) Modern Art Notes, <http://www.artsjournal.com/man/2009/02/the_debate over_collection-to-.html> (25 Feb. 2009, 11:55 AM EST).
(137) The public trust doctrine has been applied to works of art in many cases. See Ellen R. Porges, Note, 'Protecting the Public Interest in Art', 91 Yale L.J. 121, 122, 135 (1981) (arguing the public trust doctrine offers a legal theory for the protection of works of art and can require private owners of art to prevent the destruction or mutilation of works).
(138) One leading commentator has argued then that the public trust doctrine should not be applied to art, "[C]ourts frequently use such a 'public trust' argument to invalidate any attempts to give exclusive control of navigable waters to a private party. To argue that any object donated to a museum is as essential to the public welfare as the ability to use navigable waters does not comport with common sense." Malaro, above, note 5 at 220, n. 9.
(139) See Erin Ryan, 'Public Trust and Distrust: Theoretical Implications of the Public Trust Doctrine for Natural Resource Management', 31 Envt 7. L. 477, 479-80 (2001) ("Environmental activists ideally hailed the emergence of the new public trust as the legal tool that would finally empower them against powerful private and government interests they believed imperiled natural resources nationwide"); see also David Hunter, 'An Ecological Perspective on Property: A Call for Judicial
Protection of the Public's Interest in Environmentally Critical Resources', 12 Harv. Envt 'l. L. Rev. 311 (1988).
(140) Carol M. Rose, 'Joseph Sax and the Idea of the Public Trust', 25 Ecology L. Q. 351 (1998).
(141) The Institutes of Justinian Book 2, title I, parts 1-6, at 65 (J. Thomas trans. 1975) ("By the law of nature these things are common to mankind--the air, running water, the sea, and consequently the shores of the sea. No one, therefore is forbidden to approach the seashore, provided that he respects habitations, monuments, and building which are not, like the sea, subject only to the law of nations.").
(142) In England, the public trust doctrine was incorporated into the Magna Carta. In mediaeval France, a law stated that "the public highways and byways, running water and springs, meadows and pastures, forests, heaths and rocks are not to be held by Lords; nor are they to be maintained in any other ways than that their people may always be able to use them." See Marc Bloch et al., French Rural History 183 (1966).
(143) See Derek Fincham, 'Fraud on Our Heritage: Towards a Rigorous Standard for the Good Faith Acquisition of Antiquities', (Forthcoming, Syracuse J. of Int'l L. & Com. (2009)).
(144) See e.g., Richard J. Lazarus, 'Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine', 71 Iowa L. Rev. 609, at 649 (1986).
(145) Peck v. Alfred Olsen Const. Co., 216 Iowa 519 (1933).
(146) Mary A. Eikel and W. Scott Williams, 'Public Trust Doctrine and the California Coastline;, 6 Urb. Law. 519 (1974).
(147) 146 U.S. 387 (1892).
(148) Id. at 452.
(149) Wade v. Kramer, 121 Ilk App. 3d 377 (1984)
(150) See Joseph L. Sax, 'The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention', 68 Mich. L. Rev. 471,478-89 (1970).
(151) Id. at 491-565.
(152) See Alexandra B. Klass, 'Modern Public Trust Principles: Recognizing Rights and Integrating Standards', 82 Notre Dame L. Rev. 699 (2006); Matthew Thor Kirsch, 'Upholding the Public Trust in State Constitutions', 46 Duke L.J. 1169 (1997).
(153) National Parks and Conservation Ass 'n v. Board of State Lands, 869 E2d 909 (Utah, 1993).
(154) Id. at 911-12.
(156) Id. at 921.
(157) State v. Sorensen, 436 N.W.2d 358, 360 (Iowa, 1989).
(158) Id. at 360-62.
(159) Id. at 363.
(161) Cathedral Church of St. John the Divine v. Dormitory Auth., 224 A.D.2d 95 (N.Y.A.D., 1996).
(162) Id. at 103.
(163) Wade v. Kramer, 459 N.E.2d 1025, 383 (1984).
(164) Id. at 1026.
(165) Wade v. Kramer, above, note 163 at 1027-28 (citing Paepcke v. Public Bldg Corn of Chicago, 263 Ill.2d 330 (1970)).
(167) Paepcke v. Public Bldg. Com., above, note 165.
(168) Sax, above, note 150 at 566.
(169) Ibid. at 477. The justification of the public trust to prevent and preclude certain actions by museums has received relatively little scholarly attention. One open question may be whether other museum actions might be challenged by the museum-going public via the public trust doctrine.
(170) Ford W. Bell, Letter to the Editor: 'Museum Art, Held in Trust', N.Y. Times, 30 Mar. 2009 <http://www.nytimes.comJ2009/03/31/opinion/lweb31museums.html?_r=1>.
(171) The current rules, as haphazard as they are, actually treat works of art like a commodity. As Donn Zaretsky notes in response to an analogy which compares a museum selling its collection to cover operating costs to allowing a bank to raid trust assets to do the same: "Do museums have the same relationship to the works in their collections as banks do to the assets they hold for their customers? Museums aren't holding the works in trust for someone else. They own them. I'm not sure it's a useful way of looking at things to say that the works belong to "the people" and are merely "held" by the museum. For one thing, what people? The people of a particular city? State? Nation? And even if you do think of it this way, what would be wrong with a sale between two New York museums--say the National Academy sold to the Met? Wouldn't that just be like the bank moving my money from one of my accounts to another?" Art Law Blog, <http://theartlawblog.blogspot. com/2008/12/trust-me.html> (15 Dec, 2008, 21:54 EST).
(172) See White, above, note 29 (arguing "art museums present the paradox of being simultaneously very rich.., and very poor."); Stephen E Weil, 'On a New Foundation: The American Art Museum Reconceived', in A Cabinet of Curiosities: Inquiries into Museums and Their Prospects 81, 84 (1995) (estimating that in 1989 museums held perhaps $65 billion worth of art in their collections); Peter Temin, 'An Economic History of American Art Museums', in The Economics of Art Museums 179, 179-80 (Martin Feldstein ed., 1991) (stating that while art museums have "substantial collections of assets", often their operating budgets run at a deficit).
(173) See e.g., note 6.
(174) Havemeyer and Wolff, above, note 47 at 109-10.
(175) Weintraub, above, note 132.
(176) "Whenever possible, works of art obtained through disposal proceeds or through exchange credit the name of the original donor in terms that make it clear that the new object acquired was not given by the donor, but acquired through funds obtained by sale or exchange of his gift." Thomas Hoving, 'A Policy Statement from the Met', 51 Museum News, May 1973, at 43, 44.
(177) For example in 1999 trustees of the Lincoln Center considered but quickly abandoned a plan to deaccession a painting to finance building repairs. The plan was abandoned when major donors and the artist strongly criticised the plan. Carol Vogel, 'Lincoln Center Drops Plan to Sell Its Jasper Johns Painting', N.Y. Times, 26 Jan. 1999.
(178) As the Director of the Museum of Contemporary Art San Diego has noted "We museum directors can huff and puff about how once we bring these artworks into our collections that they no longer have value because they've been removed from the market, that they become this special trust that is the patrimony of our cities and that they're held in trust for future generations. It's B.S. We go on and sell them and the rule is the proceeds from the sale can only go to replenish the collection." Modern Art Notes, <http://www.artsjournal.com/man/2009/02/the_debate_over_collection-to-.html> (25 Feb. 2009, 11:55 EST).
(179) Randy Kennedy, 'National Academy Sells Two Hudson River School Paintings to Bolster Its Finances', N.Y. Times, 5 Dec. 2008 <http://www.nytimes.com/2008/12/06/arts/design/06acad.html>
(181) Robin Pogrebin, 'Branded a Pariah, the National Academy is Struggling to Survive', N. Y. Times, 22 Dec. 2008 <http://www.nytimes.com/2008/12/23/arts/design/23acad'html?pagewanted=l&- r=l>"
(182) CultureGrrl, <http://www.artsjournal.com/culturegrrl/2009/01/ deaccession_aggression_one_dec.html> (29 Jan. 2009, 12:04 EST) (Arguing that the decision to prohibit collaboration with the academy imposes severe hardships. Although Rosenbaum agrees that revoking the academy's membership was warranted, she sees it as an "assault on academic freedom" by way of its detrimental effect on exhibitions that were of great "public and scholarly value.").
(183) John Rewald notes the story of Leonce Benedite, the director of the Luxembourg Museum for modern art in Paris. In the early part of the twentieth century Gustave Caillebotte (himselfa painter and a supporter of the early Impressionist movement) bequeathed a now-staggering collection of Impressionist works, including two Manets, eight Monets, and eleven Pissaros--however, of the 68 works bequeathed, only 38 were finally accepted. Another benefactor offered a gift of twelve murals by Cezanne: again, this was before the Impressionists had gained the acclaim they enjoy today, and as a result the Cezannes were denied accession. In the decades which followed the Impressionists were soon highly sought after. "In 1952, the Louvre had to reach into a special fund to purchase just one of these [previously-rejected works]." Rewald, above, note 128, at 25.
(184) In re Estate of Hermann, 312A.2d 16 (Pa. 1973).
(185) Art Law Blog, <http://theartlawblog.blogspot.com/2007/02/albright_knox_knews_updated.html> (22 Feb. 2007, 22:44 EST).
(186) Lindsay Pollock, 'Bronze Artemis Sells for $28.6 Million, Sets Records', Bloomberg, 7 Jun. 2008, <http://www.bloomberg.com/apps/news?pid=newsarchive&sid=agaewu8u95EE>.
(187) Dennis v. Buffalo Fine Arts Academy, 836 N.Y.S.2d 498 (N.Y. Sup., 2007).
(188) Tyler Green, 'Modern Art Notes', <http://www.artsjoumal.com/man/2007/03/reexamining_deaccessioning_at.html> (7 Mar. 2007, 9:54 EST).
(190) Editorial, 'The Sale of Works of Art out of Museums', Burlington Magazine, Jan. 1960.
(191) Begemann, above, note 127 at 34.
(192) Weil, above, note 19, at 66.
(193) See below, see. IV.A.
(194) Richard Lacayo, 'The Impermanent Collection', Time Magazine, 23 Apr. 2007, at 88.
(195) Stephan Salisbury, 'To fund 'Clinic,' a 2d Eakins Sold: "Cello Player" Buyer, Cost Not Revealed', Phila. Inquirer, 1 Feb. 2007, at A1.
(196) Carol Vogel, 'Philadelphia Raises Enough Money to Retain a Masterpiece by Eakins', N.Y. Times, 24 Apr. 2008, <http://www.nytimes.com/2008/04/24/arts/design/ 24gros.html?_r=2&ref=arts&oref=slogin#>.
(197) See David W. Dunlap, 'Historical Society Shuts Its Doors but Still Hopes', N.Y Times, 20 Feb. 1993.
(198) See Michael Kimmelman, 'Should Old Masters Be Fund-Raisers?', N. Y Times, 8 Jan. 1995, <http://www.nytimes.com/1995/01/08/arts/art-view-should-old-masters-be- fund-raisers.html> (noting a sale by the New York Historical Society of Old Master painting for purposes of replenishing its endowment fund noting "when people see the city's cultural heritage put up for sale, they may well ask themselves why they should give to an institution that does such a thing.").
(199) Carol Vogel, 'Met Blocks Sale So It Can Keep An Old Master', N.Y. Times, 13 Jan. 1995 <http://www.nytimes.com/1995/01/13/arts/met-blocks-sale-to-keep-old- master-for-itself.html>.
(200) For the author's thoughts on the merits of the Waverley Criteria, see Derek Fincham, 'Why U.S. Federal Criminal Penalties for Dealing in Illicit Cultural Property are Ineffective, and a Pragmatic Alternative', 25 Cardozo Arts and Ent. L. J. 597, 636-39 (2007). See generally Vivian Wang, 'Whose Responsibility? The Waverley System, Past and Present', 15 Int'l J. Cultural Prop. 227 (2008) (providing an overview of the Waverley Criteria).
(201) United Kingdom Department for Culture, Media and Sport, 'What Are the Waverley Criteria?', <http://www.culture.gov.uk/what_we_do/cultural_property/4140.aspx> (last visited 15 Aug. 2009). For the Waverley Criteria, see above, text accompanying note 300. Japan, South Korea and Canada have similar limited export restriction laws. The Canadian Cultural Property Export and Import Act, R.S.C., ch. C-51, [section] 11(1) (1985), has similar tests: "(a) whether the object is of outstanding significance by reason of its close association with Canadian history or national life, its aesthetic qualities, or its value in the study of the arts or sciences; and (b) whether the object is of such a degree of national importance that its loss to Canada would significantly diminish the national heritage." Id. The Canadian Cultural Property Export Review Board determines if an object is of "outstanding significance and national importance." If so, its export is delayed until a purchase can be arranged by a domestic institution. Under the Japanese law for the Protection of Cultural Properties, works of art are designated either "national treasures" or "important cultural properties." See Bunkazai hogo ho [Law for the Protection of Cultural Properties], Law No. 214 of 1950, art. 27 (Japan), translated at <http://www.wipo.int/tk/en/laws/pdf/japan_cultural.pdf>.
(202) See Lacayo, above, note 125, at 88.
(203) Carol Vogel, 'Getty Buys Turner's "Rome" for $44.9 Million', N.Y. Times, 7 Jul. 2010, <http://artsbeat.blogs.nytimes.com/2010/07/07/getty-buys-turners-rome-for- 44-9-million/>.
(205) Carol Vogel, 'New York Public Library's Durand Painting Sold to Wal-Mart Heiress', N.Y. Times, 13 May 2005, <http://www.nytimes.com/2005/05/13/nyregion/13painting.html>.
(206) Michael Kimmelman, 'Civic Treasure: A Need for Transparency, Not Secrecy', N. Y. Times, 18 May 2005, [section] E, at 1, arguing "[i]t's time for transparency. Increasingly, we demand it from government, the media and Wall Street, in response to dwindling public faith. The same should apply to libraries and museums, which also regularly test our trust."
(208) Lee Rosenbaum, CultureGrrl, <http://www.artsjournal.com/culturegrrl/2007/09/ st_louis_offthewall_deaccessio.html> (21 Sep. 2007, 11:59 EST).
(209) Indianapolis Museum of Art, 'Deaccessioned Artworks', <http://www.imamuseum.org/explore/deaccessions> (last visited 15 Aug. 2009).
(210) Indianapolis Museum of Art, 'Deaceession Policy', Feb. 2008, available at <http://www.imamuseum.org/sites/default/files/ Final_IMA_Deaccession_policy.pdf>.
Derek Fincham *
* Assistant Professor, South Texas College of Law; Ph.D. University of Aberdeen, 2008; J.D. Wake Forest University, 2005. Special thanks to Peter Morris for research assistance.
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|Date:||Jul 1, 2011|
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