{"id":44,"date":"2008-06-01T14:07:23","date_gmt":"2008-06-01T19:07:23","guid":{"rendered":"http:\/\/www.danziger.com\/articlesnews\/?p=44"},"modified":"2008-06-01T14:07:23","modified_gmt":"2008-06-01T19:07:23","slug":"44","status":"publish","type":"post","link":"https:\/\/danziger.com\/?p=44","title":{"rendered":"Deal Or No Deal"},"content":{"rendered":"

The appeal – and the legal and ethical complications – of buying a museum piece.<\/strong><\/p>\n

Although we tend to view professional conferences as occupational hazards (like long hours and short-tempered opposing counsel), the one on the sale of museum property sounded promising. Deaccessioning is a hot topic, thanks to the need for increasingly cash-strapped museums to find ways to balance their budgets while trying to stay out of the papers\u2014or court. Depending on where one sits, deaccessioning is either the unethical removal and sale of public treasures or a useful means of refining a museum\u2019s collection.<\/p>\n

As it happened, we were sitting in the hot seats at the conference. To our right was Ren\u00e9e, a London ceramics collector; to our left was Joel, the director of a struggling local museum. The auditorium lights went down, and the first speaker observed that American museums, unlike their European counterparts, often improve their collections by selling some works to purchase others.<\/p>\n

Ren\u00e9e leaned heavily across us and poked Joel\u2019s shoulder: \u201cAre any of your museum\u2019s Victorian vases for sale?\u201d<\/p>\n

\u201cPerhaps,\u201d Joel whispered back, \u201cif the transaction is quick and quiet.\u201d Joel was so desperate to keep his museum afloat that he\u2019d consider raffling a Raphael, but he didn\u2019t want to draw attention to his institution\u2019s plight.<\/p>\n

\u201cAmerican museums can always freely sell their works,\u201d he told Ren\u00e9e. Typically, a deaccessioning can proceed if a museum board approves it. Museums can end up in court, however, if the sale is questioned by the state\u2019s attorney general. In most states, it\u2019s the attorney general who represents the public interest and who may\u2014but in practice almost never does\u2014sue to block a museum sale that, say, violates a state statute or the institution\u2019s own charter.<\/p>\n

Another scenario in which a U.S. museum cannot divest itself of objects involves donations made on the condition that they not be sold. This issue was recently faced by the financially troubled Fisk University in Nashville, Tennessee. It wanted to sell two valuable paintings, Georgia O\u2019Keeffe\u2019s Radiator Building\u2014Night, New York and Marsden Hartley\u2019s Painting No. 3, from a collection of 101 works that had been donated in 1949 by Georgia O\u2019Keeffe with the stipulation that they be made available to the public for study. But in February 2008, a Tennessee Chancery Court judge enjoined Fisk from selling the pictures, which had been kept in storage since late 2005.<\/p>\n

As part of the legal battle, the Georgia O\u2019Keeffe Museum, which represents the artist\u2019s estate, tried to wrest the collection from Fisk, arguing that the attempted sale violated the terms of the gift. The court ruled that Fisk had indeed violated O\u2019Keeffe\u2019s wishes but could nonetheless keep the works if they came out of storage by October 6, 2008. Fisk says it will appeal the judge\u2019s order.<\/p>\n

Joel leaned back across us and quietly assured Ren\u00e9e that since his museum\u2019s vases had been purchased through an unrestricted general fund, he could safely dispose of them. He added that the proceeds would \u201cbenefit the collection.\u201d<\/p>\n

\u201cSo the money from the sale will go only toward buying new objects?\u201d we whispered helpfully. We reminded him that the American Association of Museums (AAM) prohibits the use of deaccessioning proceeds for \u201canything other than acquisition or direct care of collections\u201d and that the Association of Art Museum Directors (AAMD) requires that the funds be \u201cused only to acquire other works of art.\u201d<\/p>\n

Unfortunately, these ethical codes have no legal teeth, and selling objects to raise money for general operating expenses is not necessarily illegal. There is little case law on the legality of deaccessioning to generate operating funds, and courts have generally approved such transactions if they are in the \u201cpublic interest.\u201d<\/p>\n

Moreover, there are many examples of museums selling works to fund operations\u2014invariably to the dismay of the larger museum community, which views the works as held in trust for the public. Consider Virginia\u2019s Randolph College, which last November sought to reduce a large operating deficit by consigning to Christie\u2019s four pictures from its Maier Museum of Art, including an important George Bellows painting, Men of the Docks, estimated at $25 million to $35 million. A local group succeeded in temporarily blocking the sale, contending, among other things, that it was unethical and violated donor intent. The plaintiffs eventually withdrew the case because they couldn\u2019t raise the $1 million bond required to keep the injunction in place. And since Randolph, unlike Fisk, is not legally restricted from disposing of works, it may soon decide to proceed with the sale.<\/p>\n

\u201cThere\u2019s no ethical restriction on using sale proceeds to conserve works in our collection, right?\u201d Joel asked us, sotto voce.<\/p>\n

Our response: This is a gray area, since some professional codes, such as that of the International Council of Museums (ICOM), seem to permit it. But we warned that the AAM and the AAMD strongly criticized Vermont\u2019s Shelburne Museum for its 1996 sale of sculptures and pastels by Degas and Manet at Sotheby\u2019s and its use of the $31.2 million in proceeds for conservation and security. Similarly, the Rose Art Museum of Brandeis University was lambasted in 1991 for auctioning at Christie\u2019s 11 paintings by artists such as Renoir, Toulouse-Lautrec and Vuillard and using the $3.65 million in proceeds in part for conservation and to advance the museum\u2019s \u201ceducational role.\u201d Critics complained that the Rose had set a terrible precedent by converting a portion of its collection into cash\u2014\u201cselling one of your children to feed the others,\u201d according to the director of another museum.<\/p>\n

The next conference speaker noted that some institutions, including New York\u2019s Metropolitan Museum of Art, will sell major works only through public auction. \u201cDoes that mean American museums are required to sell publicly?\u201d Ren\u00e9e asked nervously before being shushed by the crone sitting directly behind us\u2014who gave Thomas\u2019s chair a hard kick for emphasis.<\/p>\n

As it turns out, the Met\u2019s was a special case. It voluntarily agreed to public sales after a New York state attorney general investigation into its controversial 1973 decision to quietly deaccession paintings that had been donated by the philanthropist Adelaide Milton de Groot. The Met needed the money to purchase Vel\u00e1zquez\u2019s famous 1650 Portrait of Juan de Pareja. In her will, de Groot had inserted a \u201cwish\u201d\u2014which the Met argued was nonbinding\u2014that if the museum disposed of any of her works, it would give them to other institutions. Although the attorney general did not pursue legal action, the Met did change its policy by making deaccessioning more transparent.<\/p>\n

The day\u2019s final speaker suggested that deaccessioning is much less common in Europe because museums there, unlike in America, tend to be entirely state funded and therefore regard their holdings as inalienable public property. But we told Ren\u00e9e that times are changing, at least in the U.K. Just this past February the Museums Association, whose 1,500 members include most museums and galleries in the U.K., reversed its 30-year ban on deaccessioning and announced that institutions should make themselves more dynamic by disposing of works. The change was partly prompted by the efforts of the struggling Watts Gallery, in Surrey, to maintain itself by auctioning two important Victorian paintings at Christie\u2019s London this month: Albert Joseph Moore\u2019s Jasmine, estimated at \u00a3600,000 to \u00a3800,000 ($1.2\u20131.6 million), and Edward Coley Burne-Jones\u2019s The Triumph of Love, estimated to bring \u00a3400,000 to \u00a3600,000 ($799,000\u2013$1.2 million).<\/p>\n

\u201cIn that case, I\u2019m catching the next flight to London,\u201d Ren\u00e9e said, climbing over us. \u201cThere\u2019s a museum in Sussex with some darling decanters.\u201d<\/p>\n

Despite the many interruptions, we did learn at least one important lesson at the conference: No matter where you stand on deaccessioning, always sit on the aisle.<\/p>\n

“Deal or No Deal?” originally appeared in the June 2008 issue of Art+Auction.<\/em><\/p>\n

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The appeal – and the legal and ethical complications – of buying a museum piece. Although we tend to view professional conferences as occupational hazards (like long hours and short-tempered opposing counsel), the one on the sale of museum property sounded promising. Deaccessioning is a hot topic, thanks to the need for increasingly cash-strapped museums … <\/p>\n

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