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

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

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

More on Civic Cultural Heritage, the Ozarks, and Eakins

Daniel Brook of the Boston Globe has a can’t miss article on the “Gross Clinic” fund raising efforts in today’s edition, available here. He neatly summarizes all of the salient issues in the dispute, and rightly points out the hypocrisy in an American city, which owes much of its artistic resources to the power of its Gilded Age benefactors, crying foul when an important work is purchased by wealthy outsiders. Were Philadelphians perhaps upset at the idea of Bentonville Arkansas, home to Wal-Mart, upstaging its own perceived cultural importance? I think so. The article echoes a lot of the arguments I’ve been making here, namely that the civic export restrictions are quite similar to the policies implemented by source nations to protect their own archaeological heritage.

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

The "Gross Clinic" Will Stay in Philadelphia


Philadelphia Mayor John Street announced yesterday that the $68 million needed to keep the Gross Clinic in the city has been raised. The Philadelphia Museum of Art and the Pennsylvania Academy of the Fine Arts will share ownership of Thomas Eakins’ 1875 depiction of a surgical procedure. Exactly how much money was raised, and how much the 2 art institutions have had to borrow to match the purchase price remains to be seen. It’s been estimated that about $30 million has been donated in the six weeks since Thomas Jefferson University announced it would sell the work to the new Crystal Bridges Museum, and the National Gallery if the purchase price was not matched locally.

The decision to sell the painting was met by a great deal of local protest, but it seems all the parties involved, with the exception the original purchasers, have come out looking good. The University gets its funds, the work has received a great deal of publicity and should be visited a great deal in the coming months, and Philadelphia has kept one of its prized local works. However, some have pointed out that the fund-raising push may limit the amount donors are willing to give to other good, non-charitable, causes.

At the heart of the decision to sell the work, lies a question which often plagues cultural property. Do very beautiful works have a single home, or can they be enjoyed and appreciated anywhere? That’s a question without an easy answer. Those who donated to this effort felt strongly that this work belongs in Philadelphia. Though it would have been enjoyed and appreciated in Arkansas, Philadelphia would have lost a measure of civic pride. In any event, for the foreseeable future, the Gross Clinic will remain in Philadelphia.

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

Mayor Street Drops Historic Status


Philadelphia Mayor John Street has withdrawn the nomination of The Gross Clinic for designation as a historic object. It seems the only way the work can remain in Philadelphia is for the matching process to take over. It’s not clear where the fund raising efforts are at now, but Lee Rosenbaum reports that they are more than halfway there based on her interview with the major gifts officer of the Philadelphia Museum.

The work, recognized as one of the greatest American paintings, has been sold for $68 million to the new Crystal Bridges museum in Bentonville Arkansas (a scale model is pictured here), which will share the work with the National Gallery. Trustees of Thomas Jefferson University voluntarily agreed to delay the sale so Philadelphians could come up with funds to keep the work in Philadelphia.

I am not terribly surprised that Mayor Street has declined to continue the Historic Designation procedure, as it amounts to a municipal export restriction. Many nations have export restrictions which prevent the export of works, but the US is the main exception. With the lone exception of some Native American artifacts covered under NAGPRA, generally, any work of art can be freely exported from the US. This is not the first time Philadelphia has acted to prevent the removal of a work of art. Donn Zaretsky pointed out to me that Philadelphia used the historic designation process to keep The Dream Garden in the city in 1998.

Efforts to prevent or delay the sale provide an interesting new way to think about export restrictions. Export restrictions are a reality for the art and antiquities market, but they are quite controversial. They generally involve underdeveloped source nations (such as Peru, Guatemala, or Nigeria) and wealthy market nations (like Japan, the US, or the UK). At issue in the source nation debate are inherent concerns about the less developed world, cultural appropriation, and the continued exploitation of the underdeveloped world. If Philadelphia had continued to prevent the sale, it would have sharply cut against the prevailing position of the US, which generally frowns on export restrictions.

From an intellectual standpoint, I’m disappointed the historic designation process has been abruptly halted. The Eakins debate strips away those concerns, as Philadelphia is on roughly the same footing as Bentonville. This allows us to focus in on the core issue, which asks, do certain works belong in a certain context? Might context be secondary to the interests of the University, which plans to use the funds to expand its campus. Also, might there be a greater value in allowing more of the public to view the work?

It’s not clear why exactly the mayor chose this moment to halt the process. Perhaps he did not want the process to get dragged through a lengthy court battle, or perhaps he wants the civic fund raising efforts to receive priority. One potential solution which has not been explored is for Philadelphia to buy a share of the work, which would let it display the work periodically. This would allow people to see the work in Philadelphia from time to time, while allowing a greater audience for the work. Some have estimated that as few as 500 people saw the work last year. The main disadvantage would be the risks inherent in transporting valuable works of art, however, the work will already be traveling anyway, between Arkansas and the National Gallery.

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

The "Gross Clinic" featured on NPR

Morning edition today features a story on Thomas Eakins’ “The Gross Clinic” and attempts by Philadelphia to prevent it from leaving the city. Trustees of Thomas Jefferson University have given the city and benefactors until December 26th to raise enough funds to keep the work in the city. The City has also chosen to invoke its Historic Preservation law to prevent the work from leaving the City. This is a fascinating example of a city choosing to exercise an export restriction, which normally only takes place at the national level.

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