Wednesday, December 31, 2008


Richard Lacayo has a characteristically thoughtful response to my latest post on the deaccession wars. Essentially, he embraces the slippery slope argument:

"If the profession didn't discourage museums from using their collections as a piggy bank, I suspect a lot of them would be doing it more often, and not bothering with the hard work of fund raising. Zaretsky calls this a slippery slope argument, which it is, but one that I find compelling because in recent years we've seen a number of institutions already going down that slope."

He says that "without some kind of penalties in place, I think we'd see a lot more examples like the one earlier this year at the University of Iowa" (where a member of the board of regents raised the possibility of exploring a sale of a very valuable Jackson Pollock, but was promptly, and loudly, shouted down).

He may well be right about that, but again I have a variation on the same question I've been asking: why don't we worry about the slippery slope when it comes to deaccessioning to acquire more art? Why don't we worry about museums using their collections as a piggy bank for that purpose? How come we're not concerned about discouraging the hard work of fund raising in the area of acquisitions?

I suspect that, if we relaxed the prohibition on non-acquisition-related deaccessioning, you'd pretty much see what we see today with respect to the "good" kind of deaccessioning. There would be a modest increase in the number of sales, but on the whole, they would be done sparingly, carefully, with a proper appreciation of the stakes involved. I don't see any reason to think we would see the sale of "thousands of artworks, perhaps routinely," as AAMD board member Dan Monroe suggested in the Times on Sunday. (It makes you wonder what kind of people the strict anti-deaccessionists think are running our museums in the first place.) My guess is that the same factors that keep museums from abusing the "freedom" they currently have to sell off works to acquire others would also keep them from running wild if we were to extend that freedom to allow sales for other good reasons.

Which leads me to one last point. In my previous post, I noted that "a slippery slope argument can carry some weight if [1] there is a high probability that the unacceptable consequence will in fact happen, and [2] [it] is actually unacceptable." The slippery slope argument doesn't tell us why deaccessioning is unacceptable; instead, it merely assumes that it is, and tells us we will get much more of it if we allow it in any one case. But remember (and I know I'm a broken record on this point): when the AAMD tells us it's okay to deaccession if you use the proceeds to buy more art, what they're really saying, it seems to me, is deaccessioning is fine if it's done for a good reason. The question I still haven't seen answered is: why is buying more art the only possible good reason?

Monday, December 29, 2008

Deaccessioning Debate in the New York Times

Jori Finkel had an evenhanded, full page story in yesterday's Arts & Leisure section under the headline: "Whose Rules Are These, Anyway?" She includes me among those who ask: "Why ... is it so wrong for a museum to sell art from its collection to raise badly needed funds?":

"Donn Zaretsky, a New York lawyer who specializes in art cases, has sympathized with the National Academy at [The Art Law Blog], asking why a museum can sell art to buy more art but not to cover overhead costs or a much-needed education center. '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?' he wrote."

The answers, at least as expressed by the anti-deaccessionists quoted in the article, seem to fall into one of three categories, none of which I find particularly persuasive.

1. The art-is-not-a-commodity argument.

This view is expressed by Karol Lawson, the former director of the Randolph College art museum: "Ms. Lawson suggests that deaccessioning controversies reflect nothing less than two competing visions of art: commodity versus educational tool. At Randolph, she said, 'the people who wanted to sell the art were saying it’s the same thing as a truck or computer or a chair.'" I also assume this is what AAMD director Michael Conforti has in mind when he says "selling an object ... undermines core principles of a museum."

The argument here seems to be that we needn't look at the consequences: selling art is simply wrong. It somehow does not do justice to its nature to treat it like an asset that can be part of a market transaction, like a computer or a chair.

The problem with this argument is that, by the same logic, it would be wrong to buy art as well, and nobody seems to object when a museum goes into the market and acquires art (just as it acquires computers and chairs). More importantly, as I've been saying over and over, museums sell art all the time and no one says a word. Remember: the AAMD rule is not "thou shalt not sell art." It's "thou shalt not sell art and use the proceeds for anything other than buying more art."

So the answer can't be that selling art is, in and of itself, simply wrong. The strict anti-deaccessionist still needs to explain why it's okay to sell art for one purpose, but not for any other.

2. The slippery-slope argument.

Finkel quotes AAMD board member Dan Monroe as making this very common argument:

"It’s a classic slippery slope, this thinking goes: Letting one museum sell off two paintings paves the way for dozens of museums to sell off thousands of artworks, perhaps routinely. 'The fact is as soon as you breach this principle, everybody’s got a hardship case,' Mr. Monroe said. 'It would be impossible to control the outcome.'"

But this slippery-slope argument is subject to the same defects as all such arguments. Julian Baggini, editor of The Philosopher's Magazine, gives a good summary of those defects (he uses the example of a proposal in the U.K. to implant tracking devices under the skin of convicted sex offenders, which some objected to on the grounds that, if it were allowed to happen, the practice would then be extended to other marginalized groups):

"The problem with slippery slope arguments is that they make the location of what is contentious unclear. In this case, we need to ask: is it problematic that sex offenders have these implants or is it only a problem if the use of implants is extended to other groups in society? ... But instead of focussing on the actual wrongness of the action under debate, slippery slope arguments shift our focus to its unacceptable extensions. ... [T]hey avert our concentration from what is really at issue and make us look elsewhere."

He continues:

"A slippery slope argument can carry some weight if there is a high probability that the unacceptable consequence will in fact happen, and is actually unacceptable. The problem is that in most slippery slope arguments there is no such demonstration. [The] claim is simply an assertion. There is no particular reason to suppose that implants will be extended for use with asylum seekers. ... But unless we are given good reason to suppose implants would be extended to other groups we would not want them to be extended to, the slippery slope doesn't work. It is not enough to say, 'If you tolerate this, asylum seekers will be next.' One has to show that asylum seekers will in fact be next, or at the very least that there is a good chance they will be."

I think the same is true in this context. The claim that "allowing" (whatever that is supposed to mean) the National Academy to deaccession a couple of works would lead to thousands of other deaccessionings is simply an assertion. Do we really think that all that stands between the current status quo and a wholesale liquidation of museum collections across the nation is a sale of a couple of works by the Randolph College art museum?

And if we do, couldn't we mitigate the damage by strictly limiting the conditions under which a sale would be deemed "acceptable" (say by insisting that the museum have demonstrated serious financial hardship and that its board has thoroughly considered other alternatives), rather than ruling out the possibility entirely. Back to Baggini:

"When confronted with a slippery slope argument, two questions should be asked. First, is the practice being objected to in itself objectionable? If it is, then the foreseen extensions are irrelevant. If implants for sex offenders are wrong they are wrong, and it is an irrelevant distraction to start talking about implants in other groups of people. ... If the practice is not objectionable in itself, we then need to ask, if we start down this road, is it likely that the practice would be extended to situations where it was objectionable? Only if it is will the slippery slope argument carry any force. And even then, that may only provide reasons for creating safeguards to prevent the unwanted extension. It cannot form a direct objection to the practice itself."

So it seems to me the slippery slope argument doesn't provide a reason for objecting to "extreme financial hardship" deaccessionings like the National Academy's. If it is concerned with unwanted extensions, the AAMD should be able to address those head-on, rather than "outlawing" the practice altogether. (It's also worth noting here that, in the case of sales in order to buy more art, the slippery-slope concerns, oddly enough, seem to slip right off the radar screen; suddenly we seem to have no doubt that those charged with running our museums will act completely responsibly and not abuse the practice.)

3. The betrayal of trust argument.

Finkel says that "several directors" noted that "museums get tax-deductible donations of art and cash to safeguard art collections for the public" and selling off any holdings for profit would thus betray that trust, ... not to mention rob a community of art." I've addressed this "held in trust" argument before (see here and, via a guest poster, here), and don't have much to add here except to note that museums exist to do much more than "safeguard art collections." If a museum decides to sell one of the thousands of works it has in its collection/in storage, with the aim of upgrading its facilities, or conserving its core collection, or improving its educational offerings, or increasing the hours it's open to the public, or increasing salaries so it can attract top-notch curators, and so on, why should we see that as a betrayal of trust rather than the proper exercise of the museum's duties to serve the public interest?

As I said, none of these three arguments moves me very much. The overarching problem for the strict anti-deaccessionist, it seems to me, is that nobody is opposed to deaccessioning per se. Everyone accepts that deaccessioning to acquire more art is perfectly fine. So the problem for the anti-deaccessionist is to explain why it's okay to deaccession for one reason, but not for any other reason. Coming back to the quote of mine that Finkel included in the article, is it really the case that buying more art is always more important than anything else a museum could possibly wish to do?

Tuesday, December 23, 2008

The Horror

Christopher Knight relates the gory details of what happened to an Eakins painting previously deaccessioned by the National Academy in order to raise funds for conservation of its paintings collection.

It seems -- and I can barely type this through the tears that are staining my keyboard -- it ended up at the Los Angeles County Museum of Art. Making matters worse, it's going to be featured in a planned exhibition of Eakins's sporting paintings.

There are no words.

"I don’t think any of us were prepared for the aggression with which they came after us" (UPDATED)

In this morning's New York Times, Robin Pogrebin has a detailed look at the circumstances that led to the National Academy's decision to sell a couple of paintings.

She points out that the academy is "on a financial precipice": with a $4 million annual budget, it "has been running a deficit for five years, and this year’s shortfall is estimated at around $1 million." It's been "borrowing heavily from its $10 million endowment — $3 million of which is restricted — to pay the bills and has had difficulty paying the museum guards and the heating bill." "Operating essentially hand to mouth, the institution has had no formal fund-raising operation in place, aside from its annual spring gala." Consultants hired last year to explore a $5 million capital campaign "concluded that the goal actually needed to be $21 million, but that the institution was capable of raising only $800,000."

A proposal to sell its Fifth Avenue home (and two additional buildings on East 89th Street) was supported by the academy’s 20-member board, but rejected by its artist members.

Artist-member Richard Haas says the artists "agonized over the proposal to sell the works" before voting 183 to 1 in favor: "It was with great trepidation that we went into this." Architect Cesar Pelli, an academy member as well, is quoted as saying the sale was "perfectly fine": "Museums don’t need to be black holes where every work of art that enters them can never leave."

On the other side, Lawrence Larose, who resigned in protest as chairman of the academy's advisory committee, says "to think about raiding the cookie jar in order to keep the lights on I find culturally irresponsible."

Aside from saying how strange that statement strikes me on its face ("culturally irresponsible" to want to keep the lights on at a museum?), I'll just note (again) that the "anti" position in cases like this is not that the cookie jar can never be raided; it's perfectly fine to raid the cookie jar to buy more cookies, but it's a disaster, an outrage, culturally irresponsible, etc. to sell a cookie or two to repair cracks in the cookie jar, to keep the cookies fresh, to make them more available to the cookie-loving public, to better educate people about cookies, or do anything at all, no matter how valuable, that isn't buying more and more cookies.

UPDATE: The New York Press's Adam Rathe has a question.

MOCA Chooses the Broad Option (UPDATED 2X)

News out of Los Angeles this morning that "the board of the financially strapped Museum of Contemporary Art has voted to accept a $30-million bailout offer from billionaire philanthropist Eli Broad":

"The Broad deal, to be announced Tuesday, ends speculation that the museum might opt to accept a merger offer made last week by the Los Angeles County Museum of Art. According to the agreement, the Eli and Edythe Broad Foundation will match contributions to MOCA’s endowment up to $15 million and provide $3 million a year for exhibition support for five years. ... Broad said he was not requiring MOCA to raise $15 million in matching funds in order to receive the $15-million challenge grant but rather would match endowment funds 'dollar for dollar' with what MOCA was able to raise from trustees and others, with a cap of $15 million. ... The agreement also includes a 90-day window to 'allow any responsible party to replace the Broad Foundation on identical terms.' ... MOCA board co-chairmen Tom Unterman and David G. Johnson said that museum trustees had pledged or promised more than $20 million in new gifts since the museum’s financial troubles became public in November. ... Broad’s agreement calls for MOCA to 'continue operating as an independent world-class contemporary art museum' and to maintain both its headquarters on Grand Avenue and the Geffen Contemporary space in Little Tokyo. The plan requires MOCA to 'keep its collection intact and not sell any works of art.' The agreement also requires MOCA to operate with an annual budget of 'no less than $13 million and no more than $16 million in cash expenses' but says that the museum may operate at a higher level if it has the cash income to do so. In recent years, the museum’s budget has averaged $20 million."

UPDATE: Christopher Knight has a nice bullet point summary of the deal.

UPDATE 2: Further thoughts on the deal from Knight here.

Friday, December 19, 2008

MOCA Update

From Diane Haithman's LA Times story this morning:

"The museum's federal tax returns show that early in this decade, it had spent all $20 million of its unrestricted funds to meet routine operating costs. By mid-2007, it had borrowed an additional $7.5 million from 'restricted' accounts, designated by donors for specific uses. As a result of the revelations, the California attorney general's office is looking into the museum's finances."

Maybe it depends on how you define "profit"

Brett Littman, the executive director of The Drawing Center, writes in The Art Newspaper about "one of the most complicated and thorny issues in the museum world today," namely, "Who owns a work of art that is produced, developed and partially or fully paid for by an institution? At the end of the exhibition, should the work be given to the artist with no strings attached to sell later in a commercial gallery?"

He says there is "no clear consensus" among museum directors, and notes that "some" institutions require the artist (or her dealer) "to reimburse their investment in the production of the work when it is sold." (Though he adds that "one big problem with this method is ... that most small museums have difficulty tracking the works’ sale, and it is often difficult to collect the payment especially if the work has taken a long time to find its way to market.")

Wednesday, December 17, 2008

More on Deaccessioning

My friend Libby Ellis of AEA Consulting has been following the deaccessioning debate that’s emerged in the wake of the National Academy’s decision to sell a couple of paintings. She sent me the following email this morning:

"It seems such a phony metaphor, this notion that everything owned by every art museum actually ‘belongs’ to the public. If that were the case, then, it seems to me, each citizen would need to be paying a lot more than the indirect contribution of exemptions and deduction. Stuff is owned by museums for the benefit of the public, but stuff isn’t owned directly by the public. (And maybe we should be thankful it’s not owned outright by the public, who may have sold out long ago to pay for sports stadiums or to balance city budgets or whatever.)

"It is fascinating to see this debate that we’ve been talking about for years percolate now. We will see much more of it, as more museums are forced to publicize their quiet crises.

"I am glad you point out the thing that has always bugged me: that for the AAMD selling in and of itself isn’t the problem; it’s what you do with the proceeds. Most commentators seem to think that selling is the problem, hence it’s ok for the Brooklyn Museum to ‘transfer’ its costume collection to the Met. (I wonder what people would think, however, if the collection had been transferred to Abu Dhabi, where the ‘community’ of Brooklyn would have a slim chance of ever seeing it again?) The debate shouldn’t be about the use of proceeds, or even about selling versus transferring, but mainly about keeping museum collections accessible for public benefit.

"The AAMD position is increasingly untenable considering the strain on budgets and storage space. There needs to be a reality check. My sense is that most people have no idea how bad things are out there today. The idea of ‘perpetuity’ itself may be under threat at this point. Things are really, really bad, and sticking to that AAMD policy and banking on perpetuity today sorta feels like the UAW sticking to the jobs bank."

Tuesday, December 16, 2008

"Museums in this day and age have to learn how to share better"

When I read Carol Vogel's story today about the Brooklyn Museum's decision to transfer ownership of its costume collection to the Met, I found myself wondering what the deaccession police would say about it. After all, here was a museum parting with a collection Vogel tells us is "widely considered one of the best in the world" -- a collection, we have recently been reminded, that, like all museum collections, is held "in trust" for The People, the way a bank holds the assets of its depositors. The director of the museum admits the collection is "a highly important part of our history." Surely this cannot stand!

Well, apparently it can. Chief of Police Lee Rosenbaum pronounces the deal "a win-win arrangement," a "partnership benefiting both institutions" (presumably because, under the arrangement, though the Brooklyn Museum no longer owns the collection, it will (quoting from Vogel's article) "be able to include the collection in shows" and "both museums planned to present exhibitions in 2010 focusing on different portions" of the collection).

I don't know enough about Ed Winkleman's general views on deaccessioning to know if he qualifies for a badge, but he also approves: "In the end, as difficult as this must have been, it seems the responsible decision: it protects the collection, it pays proper homage to how it came to be, and most importantly it ensures the public will have access to the collection moving forward."

So far, in fact, I haven't seen a single criticism of the transaction.

Here's my question: what if the deal were exactly the same in every way except that the Met threw in a couple million dollars? Maybe I'm wrong, but something tells me we'd be looking at a very different reaction right now. More along the lines of: HOW DARE THEY?

In this connection, I received an interesting email today from arts journalist Daniel Grant:

"It has occurred to me that part of the reason that AAM and AAMD seek to place obstacles in the way of deaccessioning at museums (proceeds must be used to purchase more objects) is a fear and scorn of private ownership. The belief exists that a work of art consigned to a museum's storage vaults in perpetuity is preferable to the enjoyment an owner (and that person's friends and family) may receive from viewing the object. In the 1980s, there was great fear of the Japanese buying everything in America, and now we may be in fear of Russians or Indians or Saudis or Chinese buyers who will rob us of our heritage. In that regard, the AAM and AAMD restrictions may serve as a type of tariff or embargo on global trade. Others appear to be more worried about the Crystal Bridges Museum in Arkansas snatching up treasures from New York City, Philadelphia, Nashville and other major cities. (That's not xenophobia but just snobbery: If those hicks want to look at real art, let them come to the Big Apple.)

"The fact is, artworks and antiquities have come down to us precisely because private owners have been so solicitous of these objects, and the art market has allowed these pieces to pass to people who take care of them. Museums, on the other hand, acquire things and hide most of them from view, only allowing the rare doctoral candidate to see something once in a while. Certainly, tax laws encourage donations to museums and other nonprofit institutions, which is well and good. Perhaps, provisions can be enacted that prompt museums to share the objects they aren't planning to ever display -- if I remember correctly, among the items that the New-York Historical Society sold off 20 some-odd years ago when it faced financial turmoil were 50 Civil War cannonballs -- but the major museums have shown themselves to be loath to give up anything. Until then, the option of the market should not be squashed, with oversight of a state attorney general."

MOCA Merger?

The big news today was that the Los Angeles County Museum of Art has presented MOCA's board with a plan to merge the two institutions. Diane Haithman and Mike Boehm of the LA Times have the story here, and Haithman talks to LACMA director Michael Govan about the proposal here.

"You started as a lawyer. As far I'm concerned, you became a glorified fence"

Robert Mardirosian, convicted last summer of possessing stolen goods, has been sentenced to seven years in federal prison. Story here. For background, see here and here.

Monday, December 15, 2008

"Is it a logical option? Yes. Is it a probable option? No, probably not"

Lee Rosenbaum breaks the news this evening that "the NY State Board of Regents' Cultural Education Committee this afternoon voted in favor of revised rules ... which would prohibit most museums and historical societies in the state from using deaccession proceeds to defray debts, operating expenses, and most capital expenses. ... This reverses the original proposed amendment, which would have allowed such proceeds to be used to satisfy debts."

One institution certainly not bound by those rules is LA MOCA, and today, at the LA Times "Culture Monster" blog, Mike Boehm considers deaccessioning as a possible solution to their problems.

He starts by stating the simple "ethical" rule that, for some people, is also the end of the discussion:

"Two leading service organizations, the American Assn. of Museums and the Assn. of Art Museum Directors, say flatly that it's unethical to sell objects from a collection -- 'deaccession' is the technical term -- except to raise funds to buy more pieces."

Notice, though, what is being (flatly) said here: there is nothing inherently wrong with selling objects from a collection. The problem comes when you sell objects from a collection and don't use the funds to buy more pieces. That, we are (flatly) told, is unethical. So what's really going on here is a judgment that "buying more pieces" (no matter how many pieces you may already have) is always and everywhere more important than . . . well, than anything else you can possibly think of. We don't even need to know what it is. It's wrong. It's unethical. It can't possibly be as important as "buying more pieces."

Boehm goes on to note that "the AAMD already has come down on New York's National Academy Museum for breaking the no-sell rule," and then adds: "The reason it's considered unethical is that museums' fundamental role is to keep beautiful, fascinating and meaningful works of nature and humankind in their community and in the public domain. Hawking them in the marketplace would, for those who set the standards for museums, be akin to Uncle Sam raiding the National Archives and putting the Declaration of Independence out to bid to help retire the national debt."

Hmmm. First, it should go without saying that not every work in every museum collection in the world is akin to the Declaration of Independence, but, more importantly, the logic of the AAM/AAMD position is that it would be fine to sell the Declaration of Independence as long as the proceeds are used to buy more historic documents. Remember: the AAM/AAMD position is not that works of art may never be sold. It's that the proceeds from sales may be used for buying more art and for no other purpose.

Second, even if one accepts that a museum's "fundamental role" is to keep artworks in its "community" and "in the public domain," there would seem to be a large number of sales that would pass muster. Take "public domain" first. Any sale from one museum to another would seem to satisfy this constraint. (Crystal Bridges, go to town!) "Community" is a little trickier. Do we define MOCA's community as California (such that the museum has an obligation to keep its artworks within the state borders -- unless, of course, the proceeds are being used to buy more art, in which case the same restrictions somehow don't apply)? Or just Los Angeles? It certainly isn't obvious to me that MoMA, for example, has special obligations to the New York City art community, as opposed to a wider national, or even international, community of art lovers. In any case, even on the narrowest conception of the relevant community, a sale from, say, the National Academy across the street to the Met, or from MOCA across town to LACMA, would keep the works in both the "community" and "the public domain" and therefore would seem to be unobjectionable under this "fundamental role" theory.

Boehm then quotes MOCA co-chairman Tom Unterman as saying "if we were in the position of the National Academy, where you weren’t able to pay your creditors, and we’re nowhere near that, then it would become more on the radar screen than it probably is now. Is it a logical option? Yes. Is it a probable option? No, probably not. I don’t want to get way ahead of the board on this because they all may wake up one morning and say that’s the best thing to do, but I’d be surprised."

He also talks to board member Jane Nathanson, who says "I think these are dire times, and I certainly have strong feelings about deaccessioning art for any other reason but buying more art.... I know those are the guidelines, and they're the guidelines I have always gone by, but sometimes one has to look at alternate possibilities .... I’m not saying it should be done, but at different times one needs to think of different solutions. It’s a solution I would entertain. Is it one that would be the best? I don’t know."

Trust Me

Lee Rosenbaum posts excerpts from a "ringing manifesto" sent by the president of the American Association of Museums to the NY State Board of Regents on Friday. In them, he makes two main points:

1. "With a private collection, you may be able to see it today, but you have no assurance that you will see it tomorrow. With a museum, you have the assurance that its collection will be available to the community for generations to come."

Assuming, of course, the museum doesn't go under. And what if the work is sold to another museum? Doesn't that dispose of this objection? Do we have more assurance that works owned by the National Academy will be available to the community than we would if the same works were owned by, say, the Crystal Bridges Museum?

2. "An analogy we use is that allowing a museum to trade its collection to cover operating debts would be like allowing a financial fiduciary, such as a bank, to raid assets it holds in a trust to cover a hole in its own balance sheet. This would be inconceivable. It should be equally inconceivable for a museum to raid the assets placed in trust with it."

This is an interesting sounding analogy, but is it right? Do museums have the same relationship to the works in their collections as banks do to the assets they hold for their customers? Museums aren't holding the works in trust for someone else. They own them. I'm not sure it's a useful way of looking at things to say that the works belong to "the people" and are merely "held" by the museum. For one thing, what people? The people of a particular city? State? Nation? And even if you do think of it this way, what would be wrong with a sale between two New York museums -- say the National Academy sold to the Met? Wouldn't that just be like the bank moving my money from one of my accounts to another?

What strikes me as most odd about this whole argument, however, is that nobody, including the AAM, thinks museums should never sell work. It's okay to sell -- just as long as you use the proceeds to buy art, rather than expand or improve your facilities, or increase the hours you're open to the public, or improve your educational programs, etc. So really it's fine for the bank to "raid the assets" it holds in trust -- as long as they're raided for the right purposes.

As I've said, a lot more complicated than a lot of people let on.

Ninth Circuit Affirms "Renoir Wars" Decision

Rebecca Tushnet on the "wonderfully chewy case": "The court found the jury’s verdict on false advertising was supported by substantial evidence that the Societe made a false statement in commercial advertising about its own or another’s product."

For background, see here.


Mike Boehm and Kim Christensen's LA Times story this weekend on the financial crisis at LA MOCA mentions the museum's habit of borrowing from restricted funds -- "contributions that donors have made for specific purposes such as acquisitions":

"Whether any laws were broken hinges largely on what restrictions were spelled out in gift agreements detailing donors' wishes. [Board co-chairman Tom] Unterman hedged when asked if MOCA has proof that it got approval from all donors whose restricted contributions were used for other purposes. 'There have been exercises to make sure that to the extent that there were contractual stipulations, that they have been honored,' he said. [He] said MOCA is complying with the attorney general's request for financial records but would not elaborate. The attorney general's office would not comment."

UPDATE: Richard Lacayo comments: "Even if the withdrawals from the restricted fund accounts weren't illegal — and that would depend on how specific the donor's wishes were — they were a bad idea. Once it becomes public knowledge that a museum indulges in that practice, it can have the effect of discouraging future donors, who can't be sure of having their stipulations honored. This is why deaccessioning — selling off art — can also be counter productive as a way to raise money. It makes future donors think twice about where they want their art to go."

"It was not clear what became of the art"

The Art Market Monitor notices an art connection in the collapse of Dreier LLP. From the New York Times on Saturday:

"The law offices themselves ... were like modern art galleries. In court papers filed this week, the comptroller for the law firm reported that $30 million to $40 million of the firm’s assets had been spent on art. Among Mr. Dreier’s holdings were works by Picasso and a Warhol depiction of Jacqueline Kennedy Onassis. In recent days, someone not affiliated with the firm removed several pieces of artwork from the walls and carted them away, a person at the firm said."

More here from Artnet News (second item).

"It's about saving the cultural property of mankind" (UPDATED)

The BBC News on retired FBI Art Crime Special Agent Bob Wittman. "For nearly two decades, usually masquerading as a crooked art dealer with links to the Mafia or the Colombian drug cartels, he has run undercover sting operations, luring criminals into selling him stolen works of art" -- but now he's "forging a new career as a private art-security consultant."

Some interesting numbers:

"The FBI's Art Crime Team has 12 agents spread across the United States. Scotland Yard has four detectives - France has 30. Not surprisingly, in view of its vast cultural patrimony, Italy boasts the world's biggest team - 300 art-hunting Carabinieri, including agents who use helicopters to patrol the country's myriad archaeological sites."

UPDATE: More on Wittman from NPR today.

Thursday, December 11, 2008

"Is art really this static?" (UPDATED 2X)

Derek Fincham also weighs in on the National Academy deaccessioning, making an interesting comparison with the situation at LA MOCA: "We might point to [MOCA's] 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 ...."

UPDATE: Meanwhile, Lee Rosenbaum has all the latest developments in the National Academy story, including "emergency" proposed legislation by the New York Board of Regents and a letter from the National Academy director to AAMD members "strongly express[ing] our concern about the AAMD's practice of publicly censuring organizations in crisis."

UPDATE 2: An update Monday from Lee on the Board of Regents maneuvering. They've apparently withdrawn the proposed "emergency" amendment: "The new proposed guidelines ... are now even MORE stringent than the deaccession guidelines of the Association of Art Museum Directors. ... The Regents' revised proposed guidelines, to be considered at today's meeting of the Cultural Education Commitee, are more forceful. They state that 'an institution may deaccession an item or material in its collection ONLY [emphasis added] where one or more' of the following criteria are met: The item is not relevant to the institution's mission; it no longer 'retain[s] its identity' (presumably because of condition problems); it is lost or stolen; it is a duplicate not needed for research or educational purposes; the institution lacks the ability to conserve it."

"I believe history is history and that you can’t turn the clock back"

Sir Norman Rosenthal, exhibitions secretary of the Royal Academy of Arts from 1977 to 2008, argues in The Art Newspaper for an end to Nazi restitution cases: "There should now surely be a statute of limitations on this kind of restitution. If we were still in 1950 and the people who owned the Manet or the Monet were still alive, then it would surely be correct to give these paintings back, but not now and not to grandchildren and great-grandchildren."

Derek Fincham correctly points out in response that "such limitations periods currently exist. The difficulty is not the amount of time we might choose for a period, but rather what circumstances trigger the running of that limitations period." But I think what Sir Norman is suggesting is not simply that there be a limitations period, but that we should decide that it has expired, for all possible cases of this sort.

Wednesday, December 10, 2008

Deaccession Questions

In The Amherst New Era Progress, Christa Desrets reports that the former director of Randolph College’s Maier Museum of Art, who resigned in protest over the school’s decision to deaccession four paintings last year, "has been granted a fellowship with the Smithsonian Institution to conduct research for a book on the practice of selling items from museum collections for profit."

The story quotes someone from the Smithsonian as saying
the book will be about "the importance of understanding the notion of deaccessioning, and how that relates to museum ethics. Our museum association’s code of ethics states that if you deaccession, the money is to be put back into the museum collections. So that’s what she’s looking into — how is that implemented or not implemented."

That sounds interesting, and I look forward to it, but I'd be even more interested in a book that doesn't start with an uncritical acceptance of the norm that you can only deaccession to buy more art and instead explores to what extent, and in what circumstances, that norm seems justified. Among the issues that book could explore are the following.

Given that money is fungible, to what extent does the distinction between proceeds-used-for-buying-art and proceeds-used-for-other-purposes make sense? Imagine a museum that has $100 in annual operating expenses and wants to acquire $20 worth of new art. It has $100 available to spend. Under the AAMD rule, it would be okay for it to spend the $100 on operating expenses and deaccession some artwork in order to raise the $20 it needs to acquire the desired new art. That would be fine. No one would wax apoplectic. There would be no AAMD boycott of the museum. But if instead the museum takes the $100 and spends $80 of it on operating expenses and $20 on the desired new art, and then deaccessions the same existing artwork in order to raise the additional $20 it now needs to meet its operating expenses -- well, now we have a great catastrophe. How can that be?

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?

I think this whole issue is a lot more complicated than a lot of people let on. I'm glad someone's writing a book about it.

Christie's Suit

Josh Baer reports that "Yoon Young Im and Doss Inc have sued Christie’s for $235,000 alleging they sold a work that was claimed to be stolen during WW 2."

The Courthouse News has some more details: "A South Korean art collector sued Christie's for $235,500, the amount she paid for a Marie Laurencin 'Portrait' in 1991. Yoon Young Im says that when she consigned the piece to Sotheby's for sale in 2006, Sotheby's told her the Nazis had stolen it from Paris art dealer Paul Rosenberg during World War II. Im says ... Christie's was negligent, as the Rosenberg family had listed the painting as stolen in 1963, and the French government had freely circulated the Rosenbergs' list of around 100 stolen paintings at about that time - long before Christie's sold the portrait to her."

Tuesday, December 09, 2008

It's On

Peru has finally gone ahead and filed a lawsuit against Yale seeking the return of the school's Machu Picchu artifacts. Paul Needham has the story in the Yale Daily News:

"Peru's 31-page complaint ... was lodged in the United States District Court for the District of Columbia on Friday by the Washington law firm that has represented Peru since last fall. In that time, Peru and Yale came close to signing an agreement that would have kept the parties out of court by sending some — but not all — of the artifacts excavated by Yale explorer Hiram Bingham III back to Machu Picchu, but ultimately were unable to finalize those plans. Instead, according to the complaint, Peru now seeks 'the immediate return of all such property as well as damages that it has suffered on account of Yale's persistent breach of its obligations and profit at the expense of the people of Peru.'"

Illicit Cultural Property blogger Derek Fincham has some initial thoughts on the complaint, but confesses that he has "more questions than answers at this point," including:

"I wonder to what extent Peru may be seeking a public shaming of Yale in the hopes of punishing them or forcing them to apologize for taking these objects away. It should be noted that the objects themselves are primarily interesting for their intellectual value. They are not prized for their inherent beauty or value. Their primary purpose would seem to be to assist in research and other pursuits. One wonders if Peru would be able to perform this research function as well as Yale University? Or, if those intellectual pursuits might have been best advanced if Peru had been able to reach an agreement with Yale which would have resulted in the construction of a research center in Peru."

Monday, December 08, 2008

Bad Review


"The Protestant paramilitary Michael Stone has been sentenced to 16 years in prison for attempting to murder Sinn Fein leaders Gerry Adams and Martin McGuinness during a one-man attack on the Northern Ireland Assembly in November 2006 .... In his trial, Stone argued that his assault on the building was actually a work of performance art, and that the ax, three knives, strangulation cord, fake handgun, seven homemade grenades, and small bomb he carried were merely props."

More from the Guardian here.

Ed Winkleman will be pleased. Back in September, he said of Stone's "jawdroppingly cheeky defense" strategy: "Personally, I hope the courts dismiss this defense in crystal clear terms. Crime is crime, even when it's art. We can separate the two for consideration in the court of public opinion, but within the judicial system, there should be no distinction, IMO. Break the law, you pay the price."

"Where else in the world can you find something the size of a postcard with paint on it worth $5 million?"

The Miami New Times had a piece last week, timed to coincide with Art Basel, on "the rising tide of international art theft," much of it centered around South Florida. The bottom line:

"'The art world is very unregulated, and a lot of deals get done by handshakes and by the dealer's word,' says Bonnie Magness-Gardiner, the Langley-based manager of the FBI's art theft program. 'That kind of environment makes it possible for a lot of these crimes to take place.'"

A Basquiat Settlement

Back in April, I mentioned a lawsuit filed by Gerard DeGeer against the Basquiat Authentication Committee, Stellan Holm, and Carl Flach over the Committee's refusal to declare a work DeGeer owned authentic.

My friend Ted Poretz, who represented Stellan Holm in the lawsuit, tells me that the lawsuit has now been dismissed and the Basquiat Authentication Committee has reviewed additional materials presented to them and ruled the work genuine.

Sunday, December 07, 2008

"Fiduciary duties carried the day. At the end of the day, the directors have a legal duty to the Academy, not the AAMD"

Like Berkeley's Michael O'Hare, Jack Siegel (author of the Desktop Guide for Nonprofit Directors, Officers, and Advisors) thinks the AAMD's apoplexy about the recent sales by the National Academy Museum is unwarranted:

"Normally, we agree with AAMD’s tough stand on deaccessioning, particularly if the sales proceeds are used to pay current operating expenses. But there needs to be flexibility in any rule. This decision and the resulting sales strike us as well considered and reasonable. First, the sale was made after an extensive consideration by the board of directors. .... Second, the sale apparently was necessary for the Academy to survive. ... The Academy’s interim director, Carmine Branagan, told Kennedy that the Academy would have been forced to close without the sale. It has unpaid vendors. ... The AAMD can stand on principle, but the fact remains that the Academy holds over 7,000 paintings, most of which have never been publicly displayed .... Some of the sales proceeds will be used to mount exhibitions that will be open to the public. If the status quo continues, future generations will be deprived of seeing works by Chuck Close, Japser Johns, Franky Gehry, and Wayne Thiebaud."

He also does what many reflexive opponents of deaccessioning often fail to do, namely consider the alternatives:

"What happens if an organization like the Academy files for bankruptcy? Maybe the state attorney general will intervene to protect the charitable assets, but bankruptcy can be a messy process. Unless the assets are specifically restricted by the donor, a case can be made that they can be used to satisfy creditors. See In re Boston Regional Medical Center, 2004 U.S. Dist. LEXIS 15398; and In re Winsted Memorial Hospital, 280 B.R. 588 (Bankr. D. Conn 2000) for two cases holding that assets without express donor restrictions could be used to satisfy creditors in a bankruptcy proceeding. If those cases are followed, unrestricted artwork will be sold (and not necessarily to other museums) and the museum will go out of existence. Wouldn't it have been prudent in terms of AAMD's concerns to sell a couple of paintings and keep the museum (generically--we aren't referring to the National Academy) running [rather than] risk being forced to sell all the paintings in a bankruptcy proceeding? In short, we don't think the AAMD has followed the logic of its strict policy to its logical conclusion. The logical conclusion: By being inflexible, the AAMD may end up forcing more artwork out of the charitable sector than if it were more flexible."

Saturday, December 06, 2008


The Contra Costa Times reports on an interesting VARA suit out of California: "According to the complaint, Frank Romero's automobile-themed 'Going to the Olympics,' a mural which had adorned the Alameda Street underpass of the Hollywood (101) Freeway since 1984, was destroyed by [the California Department of Transportation] in June 2007. ... When the agency found that Romero's 2,040-square-foot mural had been vandalized by graffiti, Caltrans workers 'simply obliterated the mural by painting over it,' said Timothy B. Sottile, Romero's attorney."

Romero seeks unspecified monetary damages. Shelby Grad of the LA Times "wonder is he should have also included the taggers as codefendants."

Apparently this is not a new problem. Here's an LA Times article from 2001 describing how LA's mural artists were getting caught between "an
upsurge in vandalism among warring tagging crews and a strict Caltrans policy of eliminating graffiti on freeway walls." (Romero is one of the artists mentioned in the article.) It seems that, at least at that time, the Caltrans policy was to provide both the Mural Conservancy of Los Angeles ("a nonprofit group whose mission is to preserve the estimated 2,500 murals painted on public and private property throughout Los Angeles County ") and the affected artist with 45 days notice to clean graffitied murals before they are painted over. The agency would not pay the costs of the clean-up but did "approve the permits and provide traffic control" to allow the artists to do the work. Not clear at this point to what extent those policies have changed since then, or were followed in this case.

Waxing Apoplectic

Michael O'Hare, Professor of Public Policy at the Goldman School of Public Policy at Cal-Berkeley, on the AAMD's reaction to the news that the National Academy Museum had sold two paintings:

"The sale is conditioned on agreement to display the works, and they're doing it to be able to show more art to more people ..., indeed to be able to survive as a going institution. ... If you think managing a collection so more people can actually see more paintings, (or that museums should stay in business rather than close) is a benighted and evil way to behave, you will be glad to know that the Association of Art Museum Directors is on your side, and has waxed apoplectic over the Academy's shocking idea."

Another Minor Suit

Collector Halsey Minor, already engaged in a lawsuit with Sotheby's, has now sued Christie's too. The Charlottesville Daily Progress reports:

"Minor filed suit against art auctioneer Christie’s Inc. on Wednesday in San Francisco, alleging that the New York-based company had hindered his sale of seven Richard Price paintings worth an estimated $25 million.

"The lawsuit ... says that Christie’s was holding the paintings for Minor for a possible consignment sale, but refused to return them when he requested them back, beginning in May and ending in November.

"'Christie’s offered a series of shifting excuses and conditions that it demanded be satisfied before the artworks would be returned,' it said. 'Only after Minor threatened legal action did Christie’s drop these spurious excuses and conditions, and unconditionally return the artworks. But by then the damage was done. During the intervening months in which Christie’s had refused their return, the artworks fell precipitously in value.

"The lawsuit accuses Christie’s of breach of implied contract, breach of fiduciary duty and fraud, among other allegations.

"In response, a Christie’s Inc. spokeswoman disputed the lawsuit claims in a statement Friday afternoon. The New York-based company, she said, intends to fight back.

"'We believe this lawsuit has no merit and we will defend Christie’s vigorously,' the statement said. 'Furthermore, we intend to sue Mr. Minor for the $10 million-plus that he owes Christie’s, as well as related legal fees.'"

Friday, December 05, 2008

"We had a choice of selling or becoming part of the dustbin of history" (UPDATED)

It seems the National Academy Museum in New York recently sold two important paintings. Lee Rosenbaum is on the(ir) case. (Like you needed me to tell you that.) She posts a statement from the Association of Art Museum Directors condemning the sale here.

Lee reports that the works were sold to an unnamed private foundation, though "speculation has centered on the Crystal Bridges Museum." Proceeds will "be applied to programs, operations, fundraising initiatives and gallery improvements." The museum's interim director says that two other works may also be sold, and that the the total proceeds are expected to be "around $15 million" ("most" of that coming from the two works already sold).

At the end of her post, Lee gets around to mentioning the following:

"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."

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?

UPDATE: More from Randy Kennedy on page one of Saturday's New York Times arts section:

"Carmine Branagan, the academy’s interim director, said the sale ... was made after long and careful consideration by the institution’s membership, which includes famous American artists and architects like Jasper John, Wayne Thiebaud and Frank Gehry. Ms. Branagan said the academy’s members viewed the sale as the only way for the 183-year-old National Academy ... to survive and to exhibit more actively one of the country’s largest collections of American art. ... If not for the sale, she said, 'the academy would close — and that is an honest and sincere statement.'"

"Yet by putting art ahead of the bottom line, the Museum of Contemporary Art has nearly killed itself"

The New York Times has a front page story today on the LA MOCA mess.

Thursday, December 04, 2008

"The art collection represents significant value to the debtors' estates"

The bankruptcy court gave approval yesterday for Lehman Brothers to sell its $8 million art collection. Story here.

Fair Enough

The Center for Social Media has put together a "Code of Best Practices in Fair Use" that aims to "clarif[y] the fair use of copyrighted materials for teaching and learning, putting an end to copyright confusion for educators."

Temple's David Post:

"There's something of a 'political' slant to this, it should be noted. The document is, explicitly, trying to arm educators so that they will assert their fair use privileges, more vigorously than they have done in the past, all as part of a campaign to re-invigorate the doctrine. ... Worth a look, if you've ever found yourself concerned about using copyrighted material in your teaching or writing."

"The possibility of buying a forgery is one of the enduring consequences of the structure of the art and antiquities trade"

Derek Fincham notes that Sotheby’s withdrew "an important 13th century belt buckle" from an Old Masters auction last night after questions were raised about its authenticity. Asks Derek: "Though this object was discovered before its sale, how many are not?"

Tuesday, December 02, 2008

More on the Phillips Deal

Judd Tully reports that "although the sums involved in the private transaction were not released, a source familiar with the deal says that Mercury paid approximately $60 million for its majority share, of which 'around 50 percent' was to cover Phillips’s debt." He adds:

"The takeover caps a nearly 10-year roller-coaster ride for [Phillips]. In 1999 the French businessman Bernard Arnault and his LVHM group acquired Phillips for a reported $120 million. A year later, Arnault brought in the former Sotheby’s executives Simon de Pury and Daniella Luxembourg to run the company, which he merged with their Zurich gallery, de Pury & Luxembourg. The resulting firm, Phillips de Pury & Luxembourg, was cast as a threat to the duopoly of Christie’s and Sotheby’s. After huge investments failed to win Phillips a significant share of the Impressionist, modern and contemporary art markets, LVHM’s ambitious strategy foundered in a sea of red ink. Arnault and company gradually bowed out of the partnership, ceding control to de Pury & Luxembourg in February 2002; the following January, LVHM sold its remaining stake for a token sum. In March 2004 Luxembourg resigned to start her own dealership and art-investment fund, selling her shares to de Pury, with whom she still maintains the Zurich gallery, which Mercury did not acquire in the deal."

"It's quite beautiful even though it isn't the same"

Back in 2006, in a post about two works by American artists that were destroyed when they fell off the wall at the Pompidou Center, I noted that "in a nice additional touch, the museum has extended an invitation to the artists to remake the works at the museum’s expense." The LA Times's Suzanne Muchnic now reports that one of the remade works -- Craig Kauffman's "Untitled Wall Relief" -- is complete:

"A year and a half after the artist accepted the challenge [to replicate the original], the work is done. It will go on view Dec. 4 at LACMA. And if curators, conservators and trustees give their approval at committee meetings on Dec. 19 and Jan. 21, the museum will purchase the new sculpture for $60,000. That's about half what a comparable work might bring on the market, but Kauffman said he made the replica with the understanding that it would go to LACMA."

When he started on the project, Kauffman submitted a budget of $41,485 to the Pompidou, "including about $11,000 for airfare and living expenses in L.A." The new work is (cleverly) titled "Untitled Wall Relief (cast by the artist from the irreparably damaged 'Untitled Wall Relief,' 1967), 2008."

The artist who created (and still owned) the other damaged work, Peter Alexander, got an insurance payment of $28,000 "and agreed to have two new versions of his piece made, one for himself and one for the Pompidou, at the French museum's expense. The project is underway at a workshop in New York, he said."

Monday, December 01, 2008

"Copia has struggled to find its footing since opening in November 2001"

Copia, "the ambitious food, wine and art museum in Napa, Calif.," has filed for Chapter 11 bankruptcy protection.

"This interest may be routine, but it's rarely good news to get a letter from an attorney general"

The Los Angeles Times editorial board weighs in on the troubles at MOCA.

Members Only

Josh Baer says "it seems that the reporter at didn't get it quite right about Judge Cahn's ruling as to whether Gerard Basquiat came to Christies; as the Basquiat Authentication Committee or from the estate. Maybe Judge Cahn isn't so clear either."

I think he's right about the article. It says that "Orsi claims that days before the 1990 auction, the committee had seen the painting, told Christie's that it was 'not right' and asked that it be withdrawn from the auction" (emphasis added). As I mentioned in an earlier post, Justice Cahn's opinion -- presumably tracking the plaintiff's complaint, since it was on a motion to dismiss -- says that "two members of the Basquiat Committee" came to Christie's . . . in other words, two people who would later be members of the Committee. In any event, I don't think it makes any difference to Justice Cahn's reasoning in what capacity those people were acting back in 1990.