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.

Buying Fake Antiquities (UPDATE)

Felix Salmon has an interesting discussion of the sale of fake antiquities, prompted by Charles Stanish's initial article, with a lengthy response by Prof. Stanish himself.  As I commented there, those who follow these debates have enjoyed a thought-provoking series of responses to Prof. Stanish’s terrific initial article. I don’t doubt that many collectors are buying fakes. But I wonder at the efficacy of the typical archaeologist position—calling their actions an “irrational behavior” may be true enough, but is it wise?

As a lawyer, trying to craft a legal solution to these problems given the limits of funding and law enforcement resources is only made more difficult when partisans shout across the divide like this. I don’t dispute there are fakes, or that individuals shouldn’t perhaps collect many of the objects they collect. But we will never eradicate the desire of collectors to collect. Are there compromise positions which archaeologists may adopt that would shift this desire in helpful directions? Yes, but insulting those with a different view of material cultural heritage doesn’t get us any closer to any pragmatic solutions.

(UPDATE):

Paul Barford responds here.  He uses as examples of things which should not be compromised: the collection of wild bird eggs, drink driving, ivory poachers and child abuse.  Unfortunately he doesn't follow through with any of these analogs, and they strike me as a bit bizarre. 

He states archaeologists should not compromise.  That is one view of course, and it is played out in Mr. Barford's own blog, which does not allow commenting and has badly distorted many of my positions in the past.  Mr. Barford and I probably don't disagree on many of the core problems, indeed he probably doesn't disagree with what many collectors state publicly.  There exists broad consensus that looting of sites is a problem, and should be illegal.  The disagreement arises when we consider the legal measures which should respond.  He seems to take every instance of looting as an indication that "stronger" laws are needed.  But of course he never gives any concrete details.  I'd encourage Mr. Barford to consider the sentiments of Colin Renfrew, which I'll paraphrase:  in the 30-plus years since the 1970 UNESCO Convention, has there been a decrease in the looting of sites?  Why?  Is it all because of collectors?  Or is it instead the inevitable result of some of these laws and regulations which have created a stronger black market?  What is Mr. Barford's ideal legal framework?  Despite a primary interest in artifact hunting since the 1990's, he hasn't bothered to think about models for future policy as far as I can tell.  I'd be interested to read them. 

Deaccessioning in the UK (UPDATE)

The Southampton City Council has decided to sell parts of its permanent collection, including Rodin's Crouching Woman, pictured here, and Alfred Munnings' After the Race.  The decision was announced in July, but nobody really noticed.

Charles Saumarez Smith reports on the sale for the Art Newspaper, "[E]veryone in the museum world is aware that attitudes towards so-called de-accessioning are shifting in favour of allowing museums, in certain carefully defined circumstances, to consider the possibility of sales. It is, nevertheless, worth asking whether or not it is right that sales from one of Britain’s more significant regional art collections can reasonably be ignored."

The works could raise upwards of £5m, and only 200 works in the 3,500 piece collection can be displayed at one time. What will the funds be used for?  They will help to construct a £15m maritime museum commemorating the sinking of the Titanic.  Saumarez Smith asks the pointed question:

[I]s it sensible for Southampton town council to break trust with generations of previous town councillors, who have diligently and systematically and with a great sense of civic pride built up one of the best and most impressive public collections of works of art in the country to sell some of those works in order to celebrate the sinking of the Titanic?

Perhaps not, but if we were to apply the current rules of the AAMD to this sale, the sale would be perfectly acceptable would it not?  These works do not fall within the scope of the Southampton's collection.  In July, Councillor John Hannides, the Culture head said these works said "The Munnings has not been seen in Southampton for quite some time and that also goes for the other items too.  While they have been on display on occasions they are not central to the collection."  The good news for critics of this sale?  These works may be purchased by private individuals, but they won't leave the UK if they satisfy the Waverley Criteria, giving British cultural institutions an opportunity to pre-empt any sale abroad.

Tomorrow I'll post a working version of my piece on Deaccessioning, which encourages American museums and States to adopt a similar approach. 

De-accessioning and responsibility in the UK: Why Southampton is wrong to sell works of art to fund a Titanic museum  [Charles Saumarez Smith, The Art Newspaper from issue 205, September 2009, Published online 6 Sep 09]

UPDATE:

Donn Zaretsky notes that I may be wrong about whether the AAMD would permit the sale:

I don't think that's right. Apparently the sales proceeds will be used to help "construct a £15m maritime museum commemorating the sinking of the Titanic." Remember, under the AAMD approach, there is only one thing you can do with the proceeds from sales of art (buy more art); you can't go and build a Titanic-commemorating museum. What's more, from an AAMD point of view, it doesn't matter whether the works "fall within the scope of the collection" or not. You can sell work that falls right square in the middle of your collection and that's okay, just so long as you use the proceeds to buy art. But if you want to use the proceeds for any other purpose, that's forbidden, even if the work no longer falls within the scope of the collection.

He's right of course if the funds are used just to construct a new museum.  However if these funds are used to purchase works of "art", a slim likelihood perhaps given that the museum is focusing on the Titanic.  But if the museum purchases artifacts from the Titanic that could be classified as "art" then the sale would be permissible under the guidelines, in the same way the Albright-Knox shifted its focus to contemporary art.  But of course the funds from deaccessioning must be made "only to acquire other works of art—the proceeds are never used as operating funds, to build a general endowment, or for any other expenses."

More on the Rose

Via the Art Law Blog I see that Alana Abramson has an update on the Rose Art Museum lawsuit in the Brandeis University Student Paper:

The date of the first hearing regarding the lawsuit filed against the University by three members of the Rose Art Museum Board of Overseers and the deadlines for filing motions of dismissal and preliminary injunctions were set at the case management conference that took place Tuesday, Sept. 1, according to University outside legal counsel Thomas Reilly.

The motion to dismiss a case or to file a preliminary injunction, an injunction that takes place before the verdict is determined, must be filed on or before Sept. 15, according to a schedule provided by Jill Butterworth, deputy press secretary for Massachusetts Attorney General Martha Coakley. The first hearing is scheduled for Oct. 13, and the deadline to oppose the motion to dismiss the case is Oct. 6. 

The lawsuit was filed by Rose overseers Jonathan Lee, Meryl Rose and Lois Foster July 27 in the Supreme Judicial Court of Massachusetts and was subsequently transferred to the Suffolk Probate Court. The lawsuit seeks to maintain the Rose's collection by stating that the University's decision to close the museum and sell its paintings would violate both the museum's ethical codes and Brandeis' commitment to the Rose family to maintain the museum solely as a public museum.

Crowdsourcing Archaeology

In one of a series of interviews with experts sponsored by Dow Chemical, paleontologist Louise Leakey talks about the challenges involved in finding fossils, and outlines her plan to crowdsource the search, which means introducing the public and using some of that interest to help discover fossils. Sounds exactly like some of the advantages of the U.K.'s Portable Antiquities Scheme.

Sotheby's Accused of Undisclosed Conflict of Interest . . . Again

I see via the Wills, T & E blog that Sotheby's has been accused of an undisclosed conflict of interest by Halsey Minor, the founder of CNET.  The auction house allegedly did not disclose all the information it should have when it sold this work, The Peaceable Kingdom with the Leopard of Serenity, Edward Hicks (c. 1846-48).  Halsey bought the work at a Sotheby's auction last year for $9.6 million.

Lee Rosenbaum and Donn Zaretsky  covered the initial suit by Sotheby's back in 2008.  But now Halsey is claiming he was not informed that Sotheby's was selling the work to recoup money owed by the previous owner of the painting, and the auction house had an undeclared interest in another work Minor bought, Childe Hassam's Carriage in Winter.  The dispute arose when Halsey refused to pay for these works and another and Sotheby's brought suit.  Halsey counter-sued asserting Sotheby's conflict of interest, while Christie's has argued it has a proper "security interest" in the works, but denies this rises to an ownership interest which it should have disclosed.

The problem arises because Sotheby's made itself appear as an impartial advisor, when in reality it was motivated to sell the works to pay off the debts it was owed by previous owners of a couple of these works.  It seems Minor really relied on an employee of Sotheby's, and she did not reveal the other interests in these works.

As Zaretsky and Rosenbaum pointed out last year, both the New York Times and Bloomberg had revealed that Sotheby's had an interest in the Hicks work.  Which seemed to hurt his case of course.  But if there was another interest in another work, that could change things.

Matthew Garrahan, Sotheby's accused of painting conflict, [Financial Times]

University of Utah to Act as Steward of Range Creek Canyon

Range Creek Canyon was an unknown archaeological site to a select few for the last century, but has recently gained a lot of recognition. It has some terrific remnants of the Fremont culture which disappeared about eight centuries ago. The land was owned by Waldo Wilcox who recognized the value of the sites and objects on his land, and kept. He sold the property to the state of Utah in 2001 for $2.5 million.

Given all of the investigation of looters in the region in recent months, it is perhaps worth remembering not all ranchers in the West view heritage as an exploitable resource. Arguably, the sites and objects were better cared for under Wilcox's watch when nobody knew about them. In 2007, a piece for the Denver Post notes the looting of some of the sites after they were publicized.

Now the University of Utah will exchange some of its other trust lands for stewardship of part of the Canyon. Among the remnants in the canyon are ancient settlements, grain storehouses, and rock paintings. Perhaps more careful protection will be possible, but currently there is one caretaker who spends 9 months there every year.

From the AP:

Artifacts from baskets to tobacco bundles suggest human life showed up in Range Creek hundreds of years earlier and lingered longer, but significantly, the large population seemed to virtually vanish by 1,200 A.D., for reasons not fully understood. Metcalfe said the canyon was occupied by the so-called Fremont people, descendants of the continent's original Paleo-Indians. As a culture, the Fremont were distinguished by their style of basket weaving, animal-claw moccasins and dual survival strategy of farming and hunting. Yet little else is known about them, including their ultimate fate -- the conventional explanation of drought is coming under question. The farming-dependent Anasazi south of the Colorado River also disappeared about the same time, for reasons archaeologists struggle to explain. Modern American Indians tribes insist they simply absorbed the ancient people. To gain control of Range Creek, the University of Utah is giving up about 4 square miles of deer and elk habitat next to the Gordon Creek Wildlife Management Area in Carbon County. That parcel is part of the university's trust lands granted at statehood. In return, the Division of Wildlife Resources will relinquish 2.3 square miles of parcels on Range Creek's canyon bottom. "It seems like a perfectly good idea to us," said John Andrews, the No. 2 ranking official at Utah School and Institutional Trust Lands Administration, which is acting as a broker for the trade. Andrews said his agency will hold title to the former ranch lands in Range Creek Canyon, but that the parcels will be controlled by the University of Utah and folded into its own set of trust lands, which are separate from the state's. Public access, now strictly controlled, won't change significantly under land covenants and congressional legislation approving the purchase of Range Creek Canyon, which was later transferred to the state, he said. Metcalfe said the university plans to rework some of the rules of public access to make research and the protection of sites a higher priority. Metcalfe supervises surveys and selective digs by graduate students at Range Creek, which is guarded by a locked gate. A university caretaker spends nine months of the year in the canyon, which is snowbound during winter.

Recovered Picasso a Fake?

The work of art recovered by Iraqi forces last week may be a fake.  This label on the back of the work has some spelling mistakes, and indicates the Louvre sold the work to the Kuwait Museum.  However the Louvre has said it has never had a Picasso. 

From the AP:

The London-based Art Loss Registry said it has no record of any paintings missing from the Kuwait National Museum, and no record of this particular painting as missing at all.  The Picasso Museum in Paris and France's national museum were searching their archives for signs of the painting, which Iraqi forces seized Tuesday during a raid on a house near Hillah, about 60 miles (95 kilometers) south of Baghdad.  A local judge in Hillah, Aqeel al-Janabi, said Thursday the painting will be sent to Baghdad after an investigation but refused to provide details.  In a video released by the Hillah police, the man detained for trying to sell it, 33-year-old Maitham al-Issawi, said it belonged to his father, who gave it to him before his death. His father, al-Issawi, was an army officer who took part in the invasion of Kuwait, which led to the 1991 Gulf War.  In the video, officers hold up the canvas, which has fold marks on the front. Police have said the painting bears Picasso's signature but would not comment further Thursday.

More Fraud in the Art Trade

I'm just catching up to the indictment of a San Francisco art dealer, Pasquale Iannetti who was indicted in August on charges of wire and mail fraud for selling counterfeit works by Joan Miró. The indictment alleges Iannette acquired counterfeit prints, know they were fakes, and then duped customers into believing they were authentic. Pictured above is The Tilled Field, an authentic work, on display at the Guggenheim. 

It is a great thing that this smuggling ring has been uncovered, but there was a detailed and difficult investigation.  It seems Iannetti had connections to a larger fraud network with connections in not only San Francisco, but Illinios, Florida and New York.  Part of the investigation involved U.S. postal inspectors who flew to Italy to secretly record a meeting with an alleged supplier, and used invisible ink to mark the suspected fakes in New York, and posed as buyers.  Can the art trade do more to reform its own practices? 

Department of Justice Press Release

S.F. dealer accused of selling fake Miró prints [SF Chronicle]

Banks Impacting Art Exhibitions

"The income we have generated through increased business is superior to any income we could generate from selling the collection... Attracting even one individual client can cover the entire cost of lending a turnkey exhibition."

So says Rena DeSisto, head of "global arts marketing" for Bank of America in a piece by Robin Pogrebin for the NYT.  I take it as another sign that art goes where the money is.

It seems prominent banks have taken to lending works to American museums, including this work, Martin Wong's Brainwashing Cult Cons Top TV Star (c. 1981) recently donated by JPMorgan Chase to the Bronx Museum of the Arts.  Corporations and others have long sponsored art exhibitions, but recently museums have begun allowing Banks to put together complete exhibitions of their own works, and it may be a sign some museums are ceding curatorial control

Is this another signal of the impact the recession of 2008-09 is having on the arts?  Or is it more of the same.

The Association of Art Museum Directors does not have a policy on the practice.  Pogrebin's piece states:

The Association of Art Museum Directors has no policy governing shows organized by corporations and “would not be against it,” said Michael Conforti, the association’s president, “as long as the people involved felt comfortable themselves that a show complied with their curatorial standards.”  What museums need to be conscious of, art experts say, is creating the impression that these exhibitions enhance the value of corporate collections that might one day come to market. “A museum has to think very seriously about taking those shows,” said John Ravenal, president of the Association of Art Museum Curators and curator of modern and contemporary art at the Virginia Museum of Fine Arts. “The museum, by virtue of its stature and its public role, gives legitimacy or confers a certain kind of validity to these collections when it exhibits them. 

Hat Tip:  The Consumerist