Fisk University Wins Appeal

OKeeffes Radiator Building
Georgia O’Keeffe Radiator Building

In a 2-1 decision Fisk University has won an appeal against the state of Tennessee which will allow it to sell a partial share in works of art to the Crystal Bridges Museum in Arkansas. The Tennessean reports today that the proceeds from the sale can be used as Fisk sees fit, it will not have to set aside 2/3 ($20 million) of the proceeds to care for the art. This is the latest, but not the last ruling in a dispute which has been ongoing since Fisk decided in 2004 to help offset its financial difficulties by selling works of art donated by Georgia O’Keeffe and her husband Albert Stieglitz.

Fisk officials called the ruling a victory: “On behalf of the many students who attend and the faithful alumni and friends, we look forward to working out the details with the Chancery Court and the (Tennessee) Attorney General,” said Fisk President Hazel R. O’Leary. We will never know for certain whether O’Keeffe would have approved of the sale of part of the collection, and as a consequence sharing the art in the South equally between Fisk and Crystal Bridges makes good sense for the University and the Museum, and art patrons in the South. It seems an interesting bit of timing that just as the Court of Appeals released its decision, Crystal Bridges is opening as well. The long legal battle is nearly done, as it will now be up to The State Attorney General, Fisk and the Chancery Court of Davidson County to work out the final arrangements for the sale in accordance with the latest appellate ruling.

  1. Brian Haas, Court validates Fisk’s Georgia O’Keeffe art-sharing deal, Tennessean,  (last visited Nov 30, 2011).
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Who Benefits From the Stieglitz Collection at Fitz University?

So asks Boston University Law Prof. Alan Field in a piece on SSRN: Who Are the Beneficiaries of Fisk University’s Stieglitz Collection? Here is the abstract:

Most fiduciary relationships determine with specificity the beneficiaries of the fiduciary’s activities. Not-for-profit entities, however, serve a class of unspecified beneficiaries and can exercise discretion in determining who to serve and how to serve them. This paper explores the limits of discretion that recent litigation established for Fisk University in balancing its educational mission and its administration of a valuable art collection donated decades earlier. The paper analyzes the case as it addresses respect for donor conditions, changes in circumstance, standing issues, the doctrine of cy pres and the designation of the appropriate class of public beneficiaries. Race and geography also play contributing roles.

Well worth a read. Donn Zaretsky finds it “much more interesting” than the Attorney General’s brief in the very long legal battle over the present disposition of the collection.

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Fisk Can Sell the Art, Essentially Loses 2/3 of the Proceeds

What Would O’Keeffe Do Today?

Chancellor Ellen Hobbs Lyle managed to frustrate all sides of the Fisk University dispute with the latest ruling in the case.  She has ruled on Fisk University’s request to sell a partial interest in the Stieglitz Collection to the Crystal Bridges Museum in Arkansas.  The University can sell the half-interest to the Crystal Bridges, but it can only use $10 million of the proceeds “for its viability”. The remainder of the proceeds will be put in an endowed fund to maintain a “Nashville connection for the collection”. Income from the fund would be paid to Fisk to maintain and display the collection when it is in Nashville. Donn Zaretzky does not seem to understand the logic—and I’m not sure I do either.  He asks:

Was the “role” O’Keeffe “designed” for Fisk equal to one-third of the, um, total “roles” involved in the gift? Or that helping Fisk was (exactly) half as important to O’Keeffe (as measured by the old intent-o-meter) as making sure the work never left Nashville? It seems a little arbitrary to me.

There is just no way for us to know what O’Keeffe would have wanted. I think a better policy would allow deaccession in limited circumstances, but adopt the approach the United Kingdom has taken with respect to export of art and delay the sale for an extended period of time to allow other public institutions an opportunity to keep a work in the ‘public trust’. When a work carries a special connection to a region, cultural institutions and localities should be given a first opportunity to raise the needed funds. The Tennessee Attorney General wants the art to stay in Nashville, but he did not want to compensate Fisk appropriately. I just do not see the injustice here. A financially troubled and storied institution, whom O’Keeffe wanted to support decades ago can receive a much-needed benefit with the partial sale of works of art that can be better preserved and seen by a wider audience.

In response to the ruling Fisk University President Hazel O’Leary said “We are pleased with the court’s ruling that we can consummate the sharing agreement with Crystal Bridges, . . .  However, the court’s decision to restrict $20 million of the funds so that interest from the endowment is used to support the art is excessive.” Tennessee Attorney General Bob Cooper did not seem any happier with the ruling “We are disappointed with the approval of the Stieglitz Collection’s sale to the Crystal Bridges Museum in Arkansas contrary to the express wishes of the donor. . .”.

Lee Rosenbaum, who seems to believe art should never move anywhere argues this is a violation of donor intent.  Yet the court makes abundantly clear that Georgia O’Keeffe had failed to take the “necessary legal steps of reserving a reversionary right in the Collection”. In fact, O’Keeffe had, according to the Tennessee Court of Appeal given a general charitable gift, and her successors are unable to claim now that her gift came attached with special conditions. I am sympathetic to Rosenbaum’s frustration with the decision. It seems to split the dispute so evenly that neither side can be very pleased—with the exception of the Crystal Bridges Museum which will now get access to the collection for half the year.  Yet Rosenbaum claims that the sale of the work violates O’Keeffe’s intent. Unless she has the power to speak to the late artist beyond the grave there is absolutely no evidence, and we cannot ever really know for certain whether O’Keeffe would have blessed this sale.  All we do know is that she did not anticipate this circumstance, and certainly placed no legally cognizable restrictions on the collection.

  1. Jennifer Brooks, Fisk art ruling upsets both sides, The Tennessean, November 4, 2010, (last visited Nov 4, 2010).
  2. Robin Pogrebin, Court Says Fisk University Can Sell Stake in Art Collection –, New York Times, November 4, 2010, (last visited Nov 4, 2010).
  3. Lee Rosenbaum, Judge Approves Fisk/Crystal Bridges Deal, Restricts Use of Walton’s $30 Million – CultureGrrl, (last visited Nov 4, 2010).
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