More On Deaccessioning

Donn Zaretsky responds to some lazy criticism by Christopher Knight of his deaccessioning arguments.  If you want to have a serious discussion on the merits of a policy, then you should probably avoid distorting the opposing viewpoint, provide some evidence for your position, or at least take the time to read your opponnents views.  In this case, painting Zaretsky with a broad “deregulation” brush, and revealing a real distaste for lawyers generally cuts against any broader point Knight may have had.  Though the latter probably isn’t a bad idea generally—lawyers are a special breed after all—cultural policy and museum management has too long ignored and shunned sound legal principles. 

That appears to be a real shame in this case as Zaretsky probably doesn’t disagree too much with Knight’s core philosophy on collections management.  It seems to me Zaretsky points out the flaws and inherent inconsistencies in the stated policy.  As he argues “what I see myself as having been doing during this debate is pointing out the inconsistencies in, the hypocrisy that is built into, the conventional art world view on deaccessioning (namely that it is perfectly fine when the proceeds are used to buy more art, but absolutely forbidden for all other purposes).”  That seems to me to be a very valuable argument, and an important role that few others have done. 

He goes on to discuss the prominent deaccession examples of recent years, including the National Academy to avoid closing its doors, or Universities want to sell works because of substantial drops in endowments, or Thomas Jefferson decides to sell its $68 million work because nobody visits it, or a universal museum attempts to shift gears because of a declining local economy.  Now we can challenge these stated views, and certainly should maintain healthy skepticism of these attempts to deaccession works.  However the current rules prevent and even preclude this kind of debate. 

As I’ve speculated before, one wonders if in this economic climate, we may have to think about adopting the approach much of the rest of the World uses for cultural management, which is an increased level of Government support and funding.  Much of the cultural management structures in the UK, such as the Waverley Export Process, were initiated in response to economic hard times, and the loss of art and world-heritage leaving the UK and heading elsewhere, namely to the US.  It might be worth remembering, that the Universal Museums in america were formed at the expense of other nations.  Though it may be pessimistic, I’m increasingly convinced that art follows money and influence.    

Questions or Comments? Email me at derek.fincham@gmail.com

"AAMD Rules Need to be Deaccessioned"

So argues Donn Zaretsky in Art in America.  Here’s an excerpt:

So where does that leave us? Supporters of the AAMD position say that works can never be sold—except when they can be sold, in which case they’re somehow no longer held in trust. And they say that if we allowed an exception for even the most mutually beneficial transaction (for example, a sale by a struggling institution like the National Academy to a healthy one like the Met), there would be no end to such sales—even though experience under their own rule shows that there are strong institutional constraints in place that act as a check on any abuse of such freedom.

Clearly, these internally inconsistent rules need to be re-examined, if not thrown out altogether.   

Questions or Comments? Email me at derek.fincham@gmail.com

All or Nothing

Rose Museum

Lots of very thoughtful reactions to the shocking decision by Brandeis University to shut down the Rose Museum of Art.  The Art Law Blog and C-Monster have all the links.  The best coverage comes via the Boston Globe and NPR

The decision is upsetting on two levels.  For one, the institution is deciding art does not have a place in its core education mission.  Second and perhaps more troubling, how many more Universities and museums will be confronted with similar difficulties in the coming years.  There was the rumored Iowa proposed deaccessioning, the LA MOCA debacle, the National Academy deaccessioning, and even the dissolution of 18 research positions at the University of Pennsylvania all signal a shift away from the arts and humanities. Endowments are way down for a host of institutions.  Given the economic situations, might these increase, rather than decrease? 

One of the potential avenues to block the closure, or at least guide it towards a more-acceptable resolution will be the Massachusetts Attorney General.  One wonders if in this climate, we may have to think about adopting the approach much of the rest of the World uses for cultural management, namely Government support and funding.  Much of the cultural management structures in the UK, such as the Waverley Export Process, were initiated in response to economic hard times, and the loss of art and world-heritage leaving the UK and heading elsewhere, namely to the US.  It might be worth remembering, that the Universal Museums in america were formed at the expense of other nations.  If a similar trend continues here in the US, might something like a Culture Cabinet Post become not just a nice idea, but a necessity?   

William R. Ferris, senior associate director of the Center for the Study of the American South, University of North Carolina, Chapel Hill, and former chairman of the National Endowment for the Humanities, made the case in an op-ed piece last month in the New York Times. It begins:

IN 1935, as part of the New Deal, President Franklin Roosevelt created the Farm Security Administration, which reached out to rural families as they struggled during the Depression. Roy Stryker, who oversaw the agency’s photo documentary program, captured the strength of American culture in the depths of the country’s despair. The photographs of Walker Evans, Dorothea Lange and Gordon Parks showed us both the pain of America and the resilience of its people.

In 1965, President Lyndon Johnson drew on his Texas roots when he created the National Endowment for the Arts and the National Endowment for the Humanities, organizations that share America’s arts and humanities with the American people.

As we are entering another era of increased government programs, or so it would seem.  Might not a strong Cabinet-level advocate make very good sense?  I think it would.  

Turning back to the Rose decision, Donn Zaretsky beats me to the punch on one of my initial reactions to the decision.  Namely, the deaccessioning hurdles may perversely make it more feasible for an institution in financial or other difficulty to completely shut down, rather than sell parts of a collection. 

I wonder if the taboo against selling individual pieces might not have contributed, in some small way, to Brandeis’s decision to close the museum? If they could have sold five or ten of the most valuable works without controversy, might the trustees have reached a different conclusion?

Richard Lacayo offers more substance on this with an interview with Michael Rush, the Rose’s director:

“You can’t solve a shortfall problem by selling, say, our Lichtenstein and still maintain yourself legally and ethically as a museum. I think that’s what’s behind the decision to do something drastic and close the museum.

“Over the last couple of years we went through one very meticulous deaccessioning. It involved some art that was not part of our mission and had never been shown in the museum but that happened to be valuable. We got in before the market crashed. We went through several meticulous processes there, with donors, with boards, with lawyers, with the AAMD.

“So the university, from the top down, was intimately familiar with deaccessioning processes. And I think that, rather than go through the scrutiny that would accompany the sale of a few paintings, they decided instead on what I’m sure they felt would be a one-shot situation of horrible feedback over closing the museum. As draconian as it may seem, I think that closing the museum was what they were advised, legally, to do. You can’t do this piecemeal.”

All or nothing, that seems to be the ethical landscape.   

Questions or Comments? Email me at derek.fincham@gmail.com

Deacessioning, Art and the Bottom Line

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There’s been a great deal written about the National Academy’s decision to sell these two works Scene on the Magdalene  by Frederic Edwin Church (1854) and Mt. Mansfield, by Sanford Robinsons Gifford (1859). 

Lee Rosenbaum was the first to report the story (though she seems a little too fond of criticizing conventional news outlets for not linking her in — despite a paucity of links to other blogs by Lee herself).  As regular readers of Lee will know she has been very critical of deacessioning generally and this one in particular: 

I have never credited the deaccession-or-die argument and I still don’t. That was Fisk University’s justification for its attempt to monetize its Stieglitz Collection. When it was instructed by a judge not only to keep the collection but to get it back up on public view, it somehow managed to raise funds the old-fashioned way, allowing it both to display the collection and to keep the university afloat. I believe that deaccessioning is the easy way out, even more tempting today as museums grapple with Dow-ravaged endowments and distressed donors.

 But she notes:

 The National Academy is an honorary association of artists … who are responsible for its governance. The artist/members voted 181 to 1 … in favor of selling the works. An alternative that was considered but rejected was selling the Academy’s swank Fifth Avenue mansion and moving to less pricey quarters.

 Donn Zaretsky at the invaluable art law blog responds to this argument:

 So let me get this straight. The museum runs a “chronic operating deficit.” Its $10-million endowment is “restricted to specific purposes and cannot be used for general operating funds.” Its artist board members voted 181 to 1 in favor of the sale. The purchase agreement “stipulated that the paintings were to be hung publicly.” There’s a good chance they’ll end up on view at the Crystal Bridges Museum.

And we’re supposed to be outraged by this . . . why?

I think Zaretsky makes the more compelling argument here.  Is art really this static?  He notes yesterday as well that:

Another question worth exploring is whether it’s sensible to draw such a sharp distinction between the acquisition of art, on the one hand, and other ways museums spend money, on the other. Take, for example, Whitechapel Gallery, only because it was just in the news earlier this week. It recently completed a $20 million renovation and expansion — a “desperately needed” makeover. “The added space will allow the gallery to remain open continuously, whereas before it had to close about 10 weeks a year when installing new art. Its educational space was too small to accommodate even an average-size school class, and the former library had no wheelchair access.” Is it not possible to see those things as every bit as important to the institution’s mission as the acquisition of additional artwork? Is keeping the museum open an extra 10 weeks a year not a good art-related reason? Does expanding space for education not count either? Why should we automatically assume that buying art always justifies a deaccessioning, but that no other use of proceeds — no matter how important to an institution’s mission — ever can?

The argument against deaccessioning is essentially that funding should be found from private donors somehow, and its better for a museum to shutter its doors, and close up shop temporarily and move across town than to sell  a work.  Let’s compare the National Academy’s decision with the difficulties at Los Angeles’ Museum of Contemporary Art.  MOCA pencilled itself into a financial corner.  The institution is in dire financial straights, but according to the LA Times’ Tim Rutten:

[T]he curatorial staff was busy putting on exhibitions that won acclaim around the world, nobody bothered about the cost. Year after year, as expenses outstripped revenue, the board let the professional managers dip into capital — the endowment — to cover the shortfall in operating expenses. More recently, they’ve also been borrowing from restricted gifts to the museum, including those for new acquisitions. While other institutions were pinching pennies and cutting back, Strick actually increased the size of MOCA’s professional staff by at least 50 people.As one trustee, who also asked to remain anonymous, said this week, “All this happened without anybody on the board screaming — and somebody should have screamed.”

 We might point to the financial mismanagement, but how much of this financial difficulty can be focused on the decision to focus on the art itself, on the acclaimed exhibitions.   MOCA seems to have focused entirely on the art, and now needs the art world equivalent of a financial bailout.  The National Academy has instead chosen to deaccession works, which has produced a dramatic reaction from the Association of Art Museum Directors essentially ostracizing the New York institution from the American Art community.  Are the two related? 

I find it very interesting how swiftly the AAMD responded to the National Academy, especially given the downright glacial pace with which it responds to instances of antiquities looting or illegal export.  But might the AAMD be also sending a message to MOCA here, and other institutions in looming financial difficulty that in the current economic climate deaccessioning is not a viable option?  (As I was writing I notice that  Christopher Knight has picked up on the same possibility).  That seems the most likely reason for the dramatic and swift response.  Fund raising and arts funding is going to be tighter in the coming years and months.  The United States has largely been immune from these kinds of painfull art departures, in large part because it has been the buyer.  But as American dominance may be waning, perhaps there will be some tension between America’s expansive art buying policy and the loss of works of art from museums and instituions.  I think there are a lot of complicated questions to resolve here, as art moves from the historical financial and economic centers of America in cities like Philadelphia or Boston to Bentonville Arkansas or even abroad.  Perhaps America’s laws will have to shift and become more ‘retentionist’ as this art loss becomes more common. 

Questions or Comments? Email me at derek.fincham@gmail.com

Another Deaccessioning Decision in Duluth

Donn Zaretsky has an interesting overview, with lots of links, to an emerging problem for the National Galleries of Scotland, which may have to find £50 million in the next four months to purchase Titian’s Diana & Actaeon.

It may have to do the same within the next four years for another one.

He concludes by arguing:

[T]o oppose the deal between Fisk University and Alice Walton’s Crystal Bridges Museum on “anti-deaccessioning” grounds just means that you would prefer that Fisk suffer whatever consequences follow from its inability to consummate the proposed sale (elimination of various athletic programs, faculty layoffs, etc.) than that the works at issue be relocated (and, in that case, for only half the time, and probably to a venue which would allow even more people to see them).

The difference in Scotland and the UK is the process is somewhat more regulated. If a work is slated for export outside of the UK, important “Waverley” level works are temporarily delayed so funds can be raised. Perhaps a similar idea could work in the United States, though that idea is anathema to the ethos of many American cultural institutions which are often eager to acquire works to build collections.

Another example is the city of Duluth, Minnesota which is considering selling this window featuring Princess Minnehaha, which is installed in the railroad depot in the city. The city is considering selling the window to help make up a $6.5 million budget gap. This window could fetch between $1-3 million at auction.

The window was commissioned by the State of Minnesota and was used in an 1893 Columbian Exposition in Chicago. A Duluth civic group bought the Tiffany window soon after the exhibition. City officials have tried to justify the sale, arguing it doesn’t have a strong Duluth connection, and that the city isn’t a museum. That may be true, but a window which has been in the city for well over a century must have begun to develop a kind of attachment to the city. I wonder what differences there might be between the city of Dulth’s potential decision to sell the window, and the Univeristy of Iowa’s potential decision to sell its Pollock.

I’d recommend to Duluth, that if it is considering selling the window, it give civic groups and interested parties an opportunity to raise funds to keep the window in Duluth (as the Waverley criteria accomplish in the UK), or try to work out a sharing agreement to allow the window to be viewed by its citizens. If so, then it seems like a good idea to allow the city to continue its day-to-day operations in exchange for auctioning off the window.

Questions or Comments? Email me at derek.fincham@gmail.com

No Cosmopolitanism in Iowa?


There has been a surprising amount of uproar over the University of Iowa considering deacessioning this work, Jackson Pollock’s Mural. Tyler Green and Lee Rosenbaum have both weighed in, both fairly critical of the potential sale. I can see their point, these works develop a presence in a way, and people have a relationship with a work of art that continues to bring them back to an art museum. However, circumstances change, and there are some very good reasons for considering the sale or partial transfer of a work of art. I tend to agree with Donn Zaretsky on this when he says:

I know I seem to lack the deaccessioning-outrage gene, but my first reaction to hearing about a possible deal with the DMAC is, “What’s so bad about that?” If $100 million or so could go to the University to help it deal with its flood-related problems, with the Pollock moving a mere 115 miles down the road (plus a promise to “allow UIMA to show the painting occasionally”), how exactly does that amount to a catastrophe?

Indeed, there may not be anything wrong with such a decision, and we can’t know what artists or benefactors would have wanted these museums to do with these works when confronted with serious financial pressures. However I find it very interesting that many of the calls for anti-deaccessioning are very contrary to the kind of art cosmopolitanism and sharing of art and culture that many have advocated, notably James Cuno.

In theory the idea of sharing art and culture is a very good idea, but there are always complications, and in the end local communities, arts patrons, and even large nations want to keep their art. People don’t like to see beautiful works leave, especially under bad circumstances — like they may not be protected from looters adequately, or people are breaking the law, or a catastrophic flood has forced them to.

Questions or Comments? Email me at derek.fincham@gmail.com

Deaccessioning Controversy in Buffalo


A great deal of controversy has been brewing recently over decisions by museums to sell parts of their permanent collection, or deaccessioning. First, came the decision by the Pennsylvania Academy of the Fine Arts to sell Thomas Eakins’ The Cello Player to purchase an interest in The Gross Clinic.

Now, it seems the Albright-Knox Art Gallery in Buffalo NY has decided to sell a great deal of its permanent antiquities collection to allow it to purchase more contemporary works. The Buffalo News has a list of the works for auction here. Among the works are classical sculpture, Chinese porcelain, a Benin bronze, and a number of other works.

Colin Dabkowski of the Buffalo News has an article in yesterday’s Buffalo News which indicates a group of concerned citizens called the “Buffalo Art Keepers” are going to challenge the sale in court. Donn Zaretsky at the Art Law blog has more, as does Lee Rosenbaum. Rosenbaum labels the dispute a “showdown”, but that may be a bit generous for the “Art Keepers”. I agree with Zaretsky that it will be extremely difficult for them to prevent the sale. What it will do is raise the cost, both in terms of legal expenses and public opinion, in deaccessioning.

Richard Stanton, the counsel representing the “Art Keepers” says “They intend to protect the membership’s interest in the collection and see that the museum follows its own mission statement and governing rules before they sell off masterpieces of art which have been assembled over the past 140 years.” Perhaps so, and I’ll freely admit I’m not an expert in museum governance regulations, but wouldn’t there be some kind of version of the Business Judgment Rule for museums. In the corporate context, the Business judgment rule states that courts will not step in and interfere with a corporate board’s business decisions. Surely, a similar situation must be at play here.

The “Art Keepers” are arguing that the museum has collected and displayed ancient art and antiquities in the past, but has recently changed its mission to focus on contemporary art. I think the neo-classical design of the museum itself would seem to speak to an earlier intention to display older works. However, shouldn’t a museum be able to shift positions? Do we want to box an institution in and prevent it from shifting a mission in the future? What the dispute really involves is a frustration with members of the public that the Albright-Knox has shifted away from displaying antiquities, and towards contemporary art. We may argue with that decision as a matter of personal taste, but museums should be able to switch positions, and we want our cultural institutions to have some degree of flexibility.

Another dimension to this decision may be that the recent string of repatriation requests by the Italians and Greeks may encourage a museum, especially one needing funds, to sell their antiquities before a source nation makes a very public and very unpleasant request for their return. I do not know the provenance of the Benin bronze the museum has decided to sell, but many of them were taken under less-than-savory circumstances in the 19th century in the Punitive Expidition of 1897. Nigeria has a compelling ethical case to be made for their return.

Limiting museum decision-making could severely restrict our ability to have strong and viable cultural institutions. You risk a great deal by forcing an institution to repatriate objects while also preventing it from selling and managing its collection in a responsible manner.

Questions or Comments? Email me at derek.fincham@gmail.com