I'm a little late to it, but San Francisco Chronicle art critic Charles Desmarais has a piece on SFMOMA's decision to sell a major Rothko and use the proceeds to diversify its collection. He discusses a number of reactions to the news, including mine:
"Donn Zaretsky, publisher of the Art Law Blog, is a ceaseless opponent of the strict guidelines museum associations place on the use of deaccession funds (they can only be used to buy works of art that are meant to enhance the collection, and not be sold off to raise money for general operating support or capital needs). He titled a post, 'Tell me again about the public trust (1960 Rothko edition).' It was a reference to the argument, correct in my view, that museums have an ethical responsibility to preserve and cultivate collections for the benefit of their communities."
And then he goes on to say:
"Few who demand that museum collections be respected as a public trust would say that every object has equal status, and an equally permanent claim. Rather, it is the collection as a whole that should be preserved for future generations. I, for one, have no problem with pruning the tree to promote greater vigor of the larger organism."
This is interesting, in a couple of ways.
First, this is the first time I've seen someone assert that, when it comes to the public trust, not every object has "equal status" or an "equally permanent claim." The idea seems to be that some works are held more in the public trust than others -- that some are held extremely in the public trust and others are held in the public trust but not so much. But if this is true, how do we know which works are in which category? Is there a database somewhere that includes their level of public trust-ness along with their provenance and exhibition histories? "This work is a 7 on the Public Trust Scale and that one is a 4"?
The other idea here, and this one I have heard others express from time to time, is that it's not the individual works in a museum's collection that are held in the public trust but, rather, the collection as a whole. The analogy, I take it, is to an investment portfolio. If I am the trustee of your trust, it doesn't matter if I sell off this Google stock or those shares in Apple so long as the portfolio as a whole is not dissipated. The same is true here, the argument goes: it doesn't matter if you sell the Rothko "stock" as long as you replace it with other artist stocks.
It's an interesting move, and probably the only way to salvage anything of the "public trust" argument, but ultimately I think it's not persuasive. First of all, Google and Apple shares in a trust can be sold and the proceeds used for things other than buying different stocks -- they can be used to pay trustee commissions and accounting fees and legal fees (thank God), for example -- and, much more importantly for present purposes, there is a beneficiary of the trust and the point of the trust is to benefit that beneficiary and if that means selling stocks to pay for their education expenses, or housing, or medical expenses, that's perfectly fine, in fact it's the whole point of the trust. In the public trust analogy, the beneficiary is, well, the public and the point of the "trust" should not be just to keep accumulating shares of stock (works of art) but to benefit the public -- and that could be by diversifying the collection, or providing free admission, or upgrading the facilities, or anything that improves their access to and engagement with the collection.
Look, at the end of the day the notion of the public trust is just a metaphor, meant to express the (absolutely correct) idea that the collection is really important to us and the works that make it up should not be disposed of lightly. But when we have a good reason to -- whether it's to buy more art, or to diversify the collection, or to keep from going out of business, or anything else that counts as a good reason -- that should be fine, it's not a violation of any sort of trust, it's not unethical, it's not Stalin-esque. The public trust (if it existed) should be for the benefit of the public.