Navigating the Deaccessioning Crisis

I have posted on SSRN a working manuscript of my piece Navigating the Deaccession Crisis.

I’d like to acknowledge my cohort of arts bloggers who have looked in terrific detail at many aspects of the issue, and the piece is far richer for their insights. In particular, Donn Zaretsky at the art law blog; Lee Rosenbaum at CultureGrrl; Tyler Green at Modern Art Notes; Sergio Muñoz Sarmiento at the Deaccessioning Blog; Richard Lacayo at Looking Around; and many others.



My proposal has three parts. First, the unnecessary restriction on deaccession proceeds should be eliminated. Second, when an important work of art is deaccessioned, other museums should be given an opportunity to purchase a work – to keep it in the public trust or its region – in much the same way the United Kingdom and other nations regulate the export of works of art. Finally, when any museum is considering a deaccession, it must provide reasons for the sale and publicize the decision to allow for public comment.

My thinking on deaccession first took shape in the wake of the controversy which surrounded the proposed sale of this painting, Thomas Eakins’ Gross Clinic, back in 2006. Why so much anger over the sale of a painting people weren’t seeing? Are there inconsistencies in the American Museum community with respect to deaccession and the acquisition of potentially looted antiquities? Can the process be streamlined? Will it happen more often? I sought an answer to these questions in the piece, and I’d be much obliged as always to hear any thoughts or reactions.

Here is the abstract:

A deaccession crisis confronts the American Museum community. Deaccession of art occurs when a museum decides to sell or dispose of a work of art. The crisis stems not from the practice itself – though there are indications deaccession will occur with increasing regularity. Rather the curious mixture of trust and estates law, state law, tax policy, nonprofit governance, professional guidelines, and doctrines governing deaccession all combine to form a body of rules which lack clarity and often conflict. These general and ephemeral standards preclude reasoned appraisal of whether any given sale may benefit the public. More care should be taken when crafting the rules governing our collective cultural heritage.

This article attempts to define the public interest in works of art, and provide a framework to guide in the deaccession of works of art to ensure those sales do in fact serve the public interest. The decision to sell works of art should be taken with care; but the current rules lead to a number of pernicious consequences. They have caused the loss of works from the public trust, the closure of museums and unnecessary legal battles.

Current guidelines require that deaccession proceeds be used only to purchase more art; however this rule appears to be a product of one high-profile scandal involving New York’s Metropolitan Museum of Art. To assist donors, museum directors and state Attorney Generals, this article proposes three changes. First, the unnecessary restriction on deaccession proceeds should be eliminated. Second, when an important work of art is deaccessioned, other museums should be given an opportunity to purchase a work – to keep it in the public trust or its region – in much the same way the United Kingdom and other nations regulate the export of works of art. Finally, when any museum is considering a deaccession, it must provide reasons for the sale and publicize the decision to allow for public comment.