"Anne provided a needed corrective to the recent declarations by some commentators that museum trustees should be condemned for not entirely defraying museums’ outsized budgetary shortfalls from their own pockets."

Lee Rosenbaum has a round-up of some comments from the "old school" side of the aisle at the recent Syracuse Deaccessioning symposium, including more from Anne Pasternak (who Lee says "pragmatically acknowledged the merits of both sides of the deaccession dialectic, and gamely tried to steer between them") in response to the "it's on their fat asses" wing of the Deaccession Police:

"Can I just stand up for boards? It’s really made me crazy how people are just, like: 'All these museums have billionaires on their board and they really should be paying for everything.'

"I find that so perplexing at best. First of all, very few institutions have bunches of billionaires on the boards. I happen to be blessed with a very generous board of directors whose giving keeps increasing. But we can’t expect a public institution that was founded over 200 years ago to be solely funded by a handful of privileged people. I find it so bizarre that that’s even a conversation out there.

"I think it’s time to get real about boards. They’re under such scrutiny that you have to be courageous to be on a museum board these days. So I think we need to have a real conversation about what it means to run these institutions and the roles of boards who, in many of our cases, are already being extraordinarily responsible and generous, and not just look to a handful of people to solve all of our problems."

"While the end result ... will be hailed by photographers and other similarly-situated content creators, it also ratchets up the confusion meter for anyone sitting on the sidelines trying to make sense of the Second Circuit’s fair use landscape."

Copyright Lately's Aaron Moss has a similar reaction to mine re the Second Circuit's Warhol decision:

"The clear import of Goldsmith is that courts should not automatically recognize any alteration to an original work as transformative—regardless of who’s doing the altering. The problem, of course, is that the court really hasn’t offered any guidance on what is transformative. Why was Richard Prince’s composition, color palette and media deemed 'fundamentally different and new' compared to the original work, but not Warhol’s? Why was the Second Circuit able to decide that Warhol’s image wasn’t protected by fair use as a matter of law when it was unable to do so for images in Cariou that are arguably less transformative than Warhol’s? Who knows."

One person who will not be shopping for t-shirts at the Deaccessioning Hall of Fame gift shop ...

 ... is Erik H. Neil of the Chrysler Museum of Art in Norfolk. Last week, he was seen in the New York Times saying "We are educational institutions. If you want to flip paintings, there are many other types of institutions where you can do that, and they are called commercial galleries." (To which I wondered why flipping paintings to buy more art does not also make you a commercial gallery.)

Now he has expanded on that thought with an op-ed at artnet. It's largely in the slippery slope genre of anti-deaccessioning arguments, but with a twist. He seems to say it may be okay for larger museums to sell work, but worries that sets a bad precedent for smaller museums: "The nation’s biggest museums may hold as many as two million objects each, so selling a redundant work will scarcely be noticed. At most other museums, a lucrative sale would devastate the collection under the pretense of protecting it. For the mega-museums, selling a fourth-ranked Rothko is inconsequential; for a smaller museum, selling its only Rothko might be an irreparable loss." (Though you kind of get the sense he's not that thrilled about larger museums selling things either.)

But the expanded piece seems to me to suffer from the same flaw as the one-liner in the Times. His general position seems to that "when we open our collections for sale, we undercut one of our basic reasons for existing: the duty to care for artwork for the benefit of the public." But in the same piece he mentions that, at his own museum, "we are in the midst of a lengthy collection review that includes culling 'Lost Cause' memorabilia and other works that have never been exhibited and are irrelevant to our mission. Some of these objects have been transferred to institutions better suited to interpret them. Most of the other deaccessioned works are of lower quality (a loaded word, I recognize), in poor condition, or duplicative."

He hastens to add that when they sell work, "the income is used expressly to add to our collection, not to support operations." But what he doesn't explain is why, when they open their collection for sale in that way, it does not undercut one of their basic reasons for existing. You can say you are using the sale proceeds for a good purpose, the approved purpose, the purpose that will keep the haters from hating -- but the fact remains you are opening your collection for sale. How can that even be denied? 

How can you say in one moment selling work undercuts one of your basic reasons for existing and then, in the next moment, talk about how you are culling "lower quality" and "duplicative" works and selling them?

How is this smoke and mirrors act still going on?

Eight Takeaway from Last Week's Deaccessioning Conference

From Brian Boucher at artnet. (I mentioned the conference earlier here.)

I liked this bit:

"While museums may collect with relative freedom, independent curator and writer Glenn Adamson pointed out that they are subjected to intense scrutiny when selling they sell, and the headlines bear that out. ...

"When they opt to sell, expect 'scorched earth criticism by bloggers,' added lawyer Mark Gold.

"[The San Diego Museum of Art's Roxana Velásquez], on her panel, appealed for more propositions for solutions than just criticism. The current crisis, she said, showcases museums’ most pressing needs. Those in the hot seat need great ideas and empathy. 

"But [the Brooklyn Museum's Anne] Pasternak was defiant. Let bloggers criticize, she said.

"'Haters gonna hate.'"

In related news, I'd like to announce the first item of merchandise for our new gift shop at the Deaccessioning Hall of Fame: "Haters gonna hate" t-shirts, in all sizes, coming soon.

Pasternak has been on a roll lately. She had a great quote in the recent New York Times piece on the state of the deaccessioning debate:

"People will say trustees can pay for this. What planet are they on? Why is it the trustees’ responsibility to pay 100 percent of expenses for public institutions? That attitude is conflicting at best. It’s misinformed to think that every museum has a board full of billionaires."

(Depending on how the "Haters gonna hate" tees sell, we may do a line of "What planet are they on?" merchandise next.)

Boucher's piece addresses this "it's on their fat asses" point too:

"'Boards are not banks,' Everson board chair Jessica Arb Danial said. 'They are fiduciaries.' What’s more, the Everson doesn’t have a single billionaire on its board, she said. ...

"On her panel, too, Pasternak called the assumption that her board could simply write checks to cover pandemic shortfalls 'perplexing.'

"Likewise, Mark Gold, a partner at Smith Green and Gold, in Massachusetts, who was counsel to the Berkshire Museum, called it 'offensive' to assume that boards are stocked with super-wealthy members, saying that he works with institutions whose boards include local business owners and school teachers."

"Aren’t we still, basically, in the dark?" (UPDATED 3X)

That's how I ended my post on the Second Circuit's Prince-Cariou decision, back in 2013.

After yesterday's decision in the Warhol-Goldsmith case, I'm afraid we're more in the dark than ever.

In my initial post on the District Court decision in the case, I said there were two ways to look at it.

One was that "this Judge saw this particular use as transformative.  If you put the same facts before another judge ... the result could very easily have gone the other way.  On this reading, there's still no way to have any confidence about how any given fair use case will be decided."

The other was to read it as standing for the proposition that "as long as you can make a reasonable, good faith case that your work is transformative (even if there are other interpretations in which it's not), it's fair use." That would have been a big deal in fair use jurisprudence.

There's no support in the Second Circuit opinion for that second reading, so we're back to the first: these Judges saw this particular use differently. The closest thing I can see resembling a guiding principle is that the second work must be "in service of a 'fundamentally different and new' artistic purpose and character" such that it "stands apart from" the first work. It doesn't have to be the case that the first work is "barely recognizable" within the second work, but it is the case that the second work "must, at a bare minimum, comprise something more than the imposition of another artist's style on the primary work such that the secondary work remains both recognizably deriving from, and retaining the essential elements of, its source material." Ok, good luck with that.

The opinion is here.

Jeanne Fromer says "the court seems to focus merely on the literal differences between the Goldsmith photograph & Warhol's Prince series in finding no transformativeness, which is something that Cariou v. Prince & Blanch v. Koons had very much rejected by looking to the message conveyed by the works" and that she "hope[s] the Second Circuit uses one of its rare en bancs to revisit this decision .... Fair use in art has become a bit messy in the Second Circuit with each panel pointing in a somewhat different direction."

More commentary as it comes in.

UPDATE: Sergio Muñoz Sarmiento: 2nd Circuit delivers devastating blow to appropriationists.

UPDATE 2: Artist/lawyer (and friend of the blog) Dave Steiner emails: "The court's holding is correct (no fair use for Warhol's Prince magazine covers), but the court missed an opportunity to clarify that the analysis depends on the context of the secondary work's use: as art works, the secondary works may be fair use even though they are not when reproduced on mass-produced, highly commercial magazine covers. With unique art works, the public interest is more likely to outweigh any commercial aspect and there is unlikely to be market substitution. Sullivan and Jacobs almost have it right: the court should dispose of the transformative test altogether because not only is it not supported by the statute, the statute contradicts it (and despite its attempt in Campbell, the Supreme Court cannot rewrite the statute: authors have the exclusive right to prepare 'transformed' works, so 'transformative' uses are not fair by definition), and instead rely on the fourth fair use factor (unique art works rarely cause cognizable harm to the market for the original work, while licenses for mass-produced magazine covers do)."

UPDATE 3: Brian Frye: "I hear Steiner's argument, but disagree that the decision is correct. In my opinion all that should matter is that the photo and the paintings aren't substitutes."

Speaking of the Deaccessioning Debate (UPDATED)

I just want to thank the organizers of last week's two-day symposium on deaccessioning at Syracuse University for including me on a panel with deaccessioning luminaries Brian Frye (the Deaccessioning Hall of Fame Scholar-in-Residence), Mark Gold, and Nicholas O'Donnell. Throughout the event I did not see a debate that was "heated" or "bitter" but rather civil and respectful at every turn. Interesting from start to finish.

And speaking further of deaccessioning and luminaries, I'm pleased to have contributed to a new three-volume collection called Collections and Deaccessioning in a Post-Pandemic World. My essay is on "Balancing the Needs of Today's Visitors Against Those of Future Generations." The list of luminaries is too lengthy to mention; you can read all about it here.

UPDATE: "The range of opinions was on full display at the conference ...."

"Selling Art to Pay the Bills Divides the Nation’s Museum Directors"

The NYT's Robin Pogrebin and Zachary Smalls have a piece on the "heated" debate museums are having about whether to make permanent the "temporary two-year loosening of an Association of Art Museum Directors’ policy that has long prohibited American institutions from selling art from their collections to help pay the bills" -- "an idea that, depending on which institution you talk to, either makes perfect sense or undermines the very rationale for their existence."

They say "the longstanding policy" in the field has been "that the art owned by institutions was held for the public benefit and, as such, should be mostly retained."

Framed that way, I don't think there's anyone who would disagree. Everyone agrees the art should be mostly retained.

The traditional AAMD view is that it should be mostly retained, except it can be sold to buy more art. (This is not "monetizing," even though you are taking the money from sales and using that money to do something else, i.e. buy art.)

Those on the other side of the heated debate believe that the art should be mostly retained, except it can be sold to buy more art and, occasionally, for other pressing needs.

Various views are expressed.

Erik Neil of the Chrysler Museum of Art in Norfolk says "We are educational institutions. If you want to flip paintings, there are many other types of institutions where you can do that, and they are called commercial galleries" -- but he doesn't explain why flipping paintings to buy more art does not make you a commercial gallery.

The Brooklyn Museum's Anne Pasternak says "We need to really rethink some of our orthodoxies carefully so that our institutions cannot only survive but meet the demands of our time and flourish" -- and then adds this great response to the "it's on their fat asses" crowd:

"People will say trustees can pay for this. What planet are they on? Why is it the trustees’ responsibility to pay 100 percent of expenses for public institutions? That attitude is conflicting at best. It’s misinformed to think that every museum has a board full of billionaires."

Max Anderson says "To say we have billions of dollars of art and yet you’re holding out your tin cup to the community saying, ‘Please support our museum and by the way we are now able to sell art to pay our bills,’ the community will say, ‘So why are you coming to me?'" (To which Michael O'Hare might say: "If the only way by which you can make a claim on people’s wealth and the taxpayer is by lying, then sure.")

Anderson also says if a "museum steps outside of a charitable purpose and becomes more of a commercial entity,” that "opens up an entire world of hurt around the model which has for over a century governed nonprofit organizations." It's not clear to me how selling assets to be better able to serve your charitable purpose is stepping outside of a charitable purpose, but, in any case, once again, museums sell work all the time (to fund acquisitions) without anyone suggesting they thereby "become more of a commercial entity."

Finally, they mention the argument -- attributed to no one in particular but you could call it the Lee Rosenbaum position -- that "in fact, most museum collections are so full of donated works for which tax deductions have been taken that it’s fair to say they have been underwritten in part by the American taxpayer. Will the routine resale of such gifts call into question the favorable tax treatment enjoyed by museums as charitable organizations?" Michael Rushton (and I) addressed that argument here, and again I would just ask: why doesn't the routine resale of such gifts to buy other, different works of art (which even the bitterest critics of any change to existing policy admit is "a routine activity of art collection management") call into question such favorable tax treatment?

"A New York Lawmaker Has Proposed a Bill to Increase Taxes on Auction Sales to Fund Public Art Education"

Eileen Kinsella has the story here, and points out that "the proposal is at an early committee stage, and would have a long way to go before making it to law."

"'In the limited law available concerning the VARA, an owner’s decision to conceal a work does not constitute modification or mutilation,' Crawford wrote in his order."

"Covering the murals without damaging them has the same effect as an art museum removing a painting and putting it into storage, Crawford noted."

Preliminary injunction denied in the Vermont Law School murals case. Story here. Background here.

"Many of Rockwell’s paintings for the Boy Scouts have been on display at the Medici Museum of Art in Howland, Ohio, since last year as part of a free exhibition that is still continuing."

So the Boy Scouts of America, "faced with tens of thousands of sex-abuse claims," is planning to sell 60 works by Norman Rockwell to "help raise money for a settlement fund of at least $300 million for sexual abuse victims."

I don't think even the Deaccession Police will have a problem with this -- Deborah Solomon tweets out what I assume will be the consensus view: "Should the Boy Scouts de-accession their art? Hell yes. They're not a museum & are facing 1,700 lawsuits from victims of sexual abuse who need to be compensated" -- but it's worth noting that, to the extent you believe (as some members of the Deaccession Police do) that it's the tax-exempt status of museums that puts their assets in the public trust, the same logic should apply to the Boy Scouts. I've never heard any other explanation for how they come to be in the public trust.

In any event, the new talking point the Deaccession Police seem to be settling on is that deaccessioning -- at least the naughty kind we've been seeing lots of lately -- is "monetizing" the collection and "monetizing" the collection is just simply and obviously wrong (or perhaps repulsive), no explanation or theory required. Whereas the non-naughty kind of deaccessioning, where you sell work from the collection and thereby convert it into, um, money, which money you then use to purchase works of art, is not monetizing the collection and is therefore ok. Got it?

András Szántó on Deaccessioning

Another interesting deaccession-related interview today.

I loved this bit:

"The debates have a kind of theological tint to them. There's a great deal of passion and conviction and categorical statements around issues which by their nature are highly complex. I think they also reflect a certain lack of faith in institutions to make the right judgments .... I also think the issue is particular to each museum. Some museums have been collecting 150 years, others have not. I agree with those who worry about a slippery slope, but I don't believe that you can take a categorical position against it. It's like a medical procedure—there are so many variables that come into play."

I think that's basically the right approach. Drop the dogmatism. Acknowledge the complexity. Have faith in our institutions. Take each case individually. Avoid taking a categorical position. Consider all the variables.

Why is that so hard?

He also gives the following hypothetical example of how an institution "could unlock value from an existing collection":

"Institution A is an impoverished institution with a stellar collection. Institution B is a very wealthy and well endowed institution with a very weak collection. Could Institution A and B agree to a co-ownership agreement where the wealthy institution provides the funding, and the other institution provides access to the masterpiece? Would that be controversial?"

I mentioned a similar hypothetical here, and spoiler alert: Yes, that would be controversial, because that would be seen as "monetizing" the collection and monetizing the collection is (categorically) wrong, on theological grounds.

And last, in response to "the argument against deaccessioning that's been made by some critics, namely that the trustees of the museums in question should step up and dip into their pockets" (or as some say, "it's on their fat asses") he says, first, "it's very interesting to me as a European that a lot of the most progressive voices are looking to wealthy people to solve problems," and second, that part of the problem is that it's no longer the case, as it once was, that "the apex of what it meant to be a philanthropist was that you were the chairman of the board at the local museum," and one way to deal with that problem is that if "the museum opens up, becomes a vital community resource, addresses all kinds of social needs for a much wider range of people and contributes in ways small and large to the health of our society" -- as opposed, we might say, to just hoarding art -- "I think it will be easier to imagine people with this great capacity getting behind museums."

"Totaling $1.5 million, the amount is a far cry from the $65 million the museum anticipated it would raise for its so-called 'Endowment for the Future' through deaccessioning."

The Baltimore Museum of Art announced three gifts to help fund the diversity and equity initiatives it initially had planned to support through deaccessioning but changed course in the face of a storm of criticism.

Brian Boucher's artnet story describing the gifts also includes a fascinating interview with BMA director Christopher Bedford, which includes these highlights:

• Boucher says that "some are calling on boards to step up yet further. They’re asking, why should museums have to sell art when they have boards to support them?" (Or as one critic put it, "it's on their fat asses.") Bedford's answer: "From an outsider’s perspective, the call for apparently extraordinarily wealthy board members to 'step up' seems logical. But those board members have been, are, and continue to step up—it [still] may not be adequate to keep the museum solvent and meet the mission."
• Getting to the core of it, Bedford say: "Critics of institutions question, 'Why should we sell art?' My question would be quite simply, 'Why should we not?' . . . Our fundamental role is not to hoard riches, but to interpret those objects in order to provide cultural enrichment. Institutions are being called on to change our DNA, and there is nothing more important to our DNA than our collections. If the majority of institutions in this country are white-centered, which they are, then it stands to reason that the collection itself is emblematic of that bias. Why shouldn’t we be able to, in some measured and controlled fashion, access those resources to drive vision and to properly diversify and compensate staff and properly diversify collections?" (my emphasis). (Though he admits: "I’m probably in a minority at the moment in terms of posing that question.")
• On why the plan was abandoned: "We [ultimately] decided it would be best to remain aligned with the policies that govern our peer institutions."
• "When conservative voices say we should never open Pandora’s box, I say, why not?"
• "[T]he idea of moving slowly and cautiously is, I think, a little tone-deaf to the urgency of the present moment, when activist voices are calling, justly, for museums to recognize what we haven’t been doing and move quickly to remedy that."
• "Mine is a careful dance of saying, I am very committed to the field and I want to be a part of the group that wants to thoughtfully change the agenda, while also saying there are aspects of the way that museums work historically that I disagree with on a 40,000-foot level. It’s important to stretch the conversation. Even if my position is not the governing position, the harder people push, the more it moves to the center."

"The Museum approaches deaccessioning with the same degree of strategy and deliberation as we apply to acquisitions."

Met director Max Hollein has a very good piece at the museum's website defending the position they've taken on deaccessioning, and also an interesting interview with Brian Boucher at artnet.

Some highlights from the latter:

• He makes the point that museums sell work all the time and no one bats an eye: "I think that sometimes even people from the field on purpose neglect the reality that museums have been involved in deaccessioning for decades. It’s not new. So this is something we can handle professionally. To suddenly say that it might be inappropriately handled, I think there’s a bit of a disconnect in that argument. I understand if criticism like that came from outside the U.S., but this is how museums have been practicing in the U.S. all along."
• On the works that would be sold: "We’re not talking about masterpieces. These are sometimes works on paper that are duplicates, or photographs that we own in multiples. And we don’t deaccession works by living artists."
• And he points out that "what we are considering doing, for this limited time period, is to actually allocate the funds that were already being generated from deaccessioning toward collection care and new funds being generated through our deaccessioning program, for this limited time period, not toward new acquisitions but toward collection care, meaning salaries and related costs of our employees who take care of the collection, such as conservators, mount makers, and collection managers. That’s the one change" (my emphasis).

I think this last point is crucial. Even the harshest critics of the plan admit that "deaccessioning is a routine activity of art collection management." The Met does it every year, and has an established process in place (this is from Hollein's piece):

"The criteria for deaccessioning works in the collection have been consistent for decades and include: (1) the work does not further the mission of the Museum; (2) the work is redundant or a duplicate; (3) the work is of lesser quality than other objects of the same type in the collection; and (4) the work lacks sufficient aesthetic merit or historical importance to warrant retention. The Met deaccessions works annually, resulting in revenue that varies between as little as $45,000 to as much as $25 million, driven by the wide range of values assigned to specific pieces and different media. In recent years, for example, we deaccessioned decorative arts from The American Wing, women’s night and dressing wear from the Costume Institute, and two works from European Paintings. Each object was subject to review by curators and conservators as well as the administrative staff and trustees, as outlined above. This process takes a number of months for each item."

OK, so now they've gone through this rigorous process and have arrived at a group of works that they've decided to sell as part of their (routine) art collection management. My question is (and always has been): At that point, what difference does it make what you do with the money? Yes, of course, it has to be for a legitimate institutional purpose, but assuming that's the case, who cares how the money is spent? The works are being sold anyway. It's never made any sense to me.

"Judge Tucker’s 27-page ruling upheld their motions, saying the reporting was factually true and covered by the fair-report privilege, which protects news outlets that report accurately on public records and proceedings, like court cases or municipal meetings."

Concord Monitor: Judge dismisses defamation claims surrounding coverage of suspected art forgery case.

Background here.

Charles Gaines on Deaccessioning

From an interview at artnet:

"I get into arguments with my progressive friends about this: I feel that deaccessioning for the purposes of diversification is always legitimate. History is something that I value greatly. But one of the things that’s part of the history of art is that its discourse was racist, and that should be acknowledged. Deaccessioning is one way to do that. It’s saying: We have an opportunity to comment upon history by critiquing the way this particular narrative was formed."

"I don’t know how many billionaires sit on the board of trustees, arguably the most prestigious and desirable in Manhattan, but I am comfortable going with the adjective 'plenty.' Time to start writing lots more checks, or time to step aside." (UPDATED)

Pulitzer Prize-winning art critic Christopher Knight weighs in on the "bombshell that New York’s Metropolitan Museum of Art dropped into the news cycle the other day." "I don’t know about you," he writes, "but I am sick to death of reading about art museums and their scandalous schemes for stress-free fundraising by throwing principles to the winds and selling art from their collections to pay for programs, staffing and other operational costs, pandemic induced or not." He notes that "in the last 10 months, museums in Long Beach, Palm Springs, Baltimore, New York’s Syracuse, Brooklyn and now Manhattan have been behaving badly."

Confronted with all this naughtiness, "two words immediately popped into [his] head: Patriot Act."

To show how little has changed in this debate, here is my exchange with Knight from back in 2009. And here is an exchange he had with Brandeis philosophy professor Jerry Samet around the same time. More recently, the Deaccessioning Hall of Fame Scholar-in-Residence, and others, had some thoughts in response to Knight's views on the Syracuse-based "bad behavior" here.

UPDATE: Tyler Green seconds Knight's motion: "NYC has 113 billionaires. Many are on the Met's board. The wealth of billionaires increased $1.1T during the first ten months of the pandemic. It's on their fat asses."

A rumble of dissent (UPDATED)

The Art Newspaper article I linked to in the update to the last post ("Rumbles of dissent") includes the following quote from Martin Gammon, author of Deaccessioning and its Discontents: A Critical History:

"The Met, like every other major encyclopeadic museum, deaccessions all the time, and there is nothing wrong in principle with extending that practice to support the direct care of collections in the current two-year window."

I take that to be a pretty standard view. There is nothing wrong -- in principle -- with extending that practice (i.e., the practice of routine deaccessioning) to support the direct care of collections.

So if we take the form of the sentence -- "There is nothing wrong, in principle, with extending the practice to _________________" -- we know there are at least two ways to fill in the blank that most people think are acceptable: to buy more work, and to support the direct care of the collection.

The question I've been asking (and asking) is: why can't there be a third? Why can't we say there is nothing wrong, in principle, with extending the practice to, for example, keep a failing institution from having to shut its doors? What are the arguments against filling in the blank in that way that don't also apply to filling in the blank with "to support direct care of the collection"? Why is supporting the direct care of the collection a more valuable thing than keeping from going bankrupt? Once you say the practice is okay for reasons A and B, why can't it also be okay for reason C? We have to look closely at reason C, and ask whether, in the particular case in front of us, it's worth selling work to support it. But in principle why should we rule out the possibility completely?

UPDATE: Deaccessioning Hall of Fame Scholar-in-Residence Brian Frye is with me: "What is the 'principle' that prohibits deaccessioning for an otherwise good purpose? There isn't one, which is why the deaccessioning police only ever raise their voices when challenged. What is the correct 'principle' for deaccessioning? Museums should deaccession works whenever the museum thinks it's the right choice. If you disagree, take it up with the board members, who are ultimately responsible. If they violate their duties, replace them."

I agree. The "principle" is that in each case we ought to "weigh the actual costs and actual benefits and try to determine whether, on balance, all things considered, the sale is a good idea."

"As Museums Push to Sell Art, Competing Ideas About Deaccessioning Are Playing Out in Public" (UPDATED)

In ARTnews, Andrew Russeth has a long, balanced piece on the state of the deaccessioning debate, with lots of good quotes, including:

• Baltimore's Christopher Bedford: "What we are doing is not for everyone, including the Christopher Knights of the world. There is a pressing, pressing, pressing need for change within institutions in this country, because we have been failing in our mission of providing the right kind of service."
• On the argument that museum board members should just step up and provide the needed funds, Brooklyn's Anne Pasternak: "We’re public institutions. Why is it that a handful of people are expected to carry the burden of a public institution that they didn’t create?"
• On the same question, the Everson's Elizabeth Dunbar: "We don’t have a huge collecting base here, nor do we have billionaire trustees on our board."
• Mark Gold: "What’s unethical about using the proceeds from one painting to pay people fairly, or to address social injustice?"
• Michael O'Hare: "Museums are a public good. We give them special financial privileges and tax-free buildings and whatnot. And their job is to maximize engagement with art and optimize engagement with art.” (Russeth summarizes O'Hare's position as follows: "reverse FASB’s position and make the AAMD’s changes permanent. Force museums to value their art on their balance sheets, then ask them tough questions about what they show, what sits in storage, and what they could sell—perhaps with a preference for other museums—to hire more employees, pay them better, and promote better engagement with art.")
• Russeth then asks: "Wouldn’t [O'Hare's] course of action push donors and government funding away from supporting museums?" O'Hare's answer: "If the only way by which you can make a claim on people’s wealth and the taxpayer is by lying, then sure. If a rich person asked me about art philanthropy, I would say, Go down the street, walk past the museum to the symphony or chamber-music-presenting organization and give them money—until things change."
• Christopher Knight calls O’Hare’s ideas "ridiculous" and suggests we "stop thinking like Ronald Reagan. Stop thinking that trickle-down works. It’s a mindset that says the market is the answer to all our problems. And it is not."

UPDATE:  Rumbles of dissent.

More Met

My friend Mark Gold, an experienced observer (and occasional participant) in the Deaccessioning Wars, emails regarding the news about the Met:

“It really feels like the dam has broken.

“To me, the most important sentence was the first line of the NYTimes article:  Facing a potential shortfall of $150 million because of the pandemic, the Metropolitan Museum of Art has begun conversations with auction houses and its curators about selling some artworks to help pay for care of the collection.  [Emphasis added.]

“Later, reference was made to the board's plan to revise the Met's collections care policy.

“I've always believed that expanding the definition of direct care was the way forward for museum's dealing with budget issues, more than the inevitable expansion of the AAMD rule.  The significance of the freedom given each individual museum in the AAMD statement to define direct care for itself clears the way to deploy the proceeds of deaccessioning in a much more expansive and powerful way. Doing so frees revenue from other sources to be spent for expenses that are not within care of collections.  At a minimum, it may constitute a museum survival kit.  But it can also become a budgetary philosophy that results in not just the reallocation of expenses amongst various categories, but an increase in revenues to support important initiatives like collections diversity, fair pay, etc.”

This also is a good time to mention that Mark and I – along with additional friends of the blog Brian Frye and Nicholas O’Donnell – will be on a panel together next month as part of a Syracuse University symposium entitled Deaccessioning After 2020. Details here.

"Like many institutions, the Met is looking to take advantage of a two-year window in which the Association of Art Museum Directors ... has relaxed the guidelines that govern how proceeds from sales of works in a collection (known as deaccessioning) can be directed." (UPDATED 3X)

The Met floats a trial balloon: Facing Deficit, Met Considers Selling Art to Help Pay the Bills. It's considering. It has "begun conversations." It would be "inappropriate" not to consider it, "when we’re still in this foggy situation." They are "engaging in [an] evaluation process" that is "the more conscientious course of action." "Every museum in the U.S. is having these conversations." For them "not to discuss this now would be irresponsible."

They would also like us to know that, if it happens (which it might not, it's only being considered, mind you) it will be done carefully. "As museums periodically do routinely, the Met’s curators will evaluate the holdings in their departments with an eye to which pieces are duplicative or have been supplanted by better examples, or have rarely — if ever — been shown. Works to be sold will then have to be approved by department heads, the museum’s director and the board before public auction."

Also, anticipating one of the main lines of attack from the Deaccession Police (i.e., however legitimate the need, the money should be raised by other means), the story includes the following from a Met curator: "We’re facing a huge budget deficit. We’ve tried for years to get more robust funding for conservation."

So the idea has been floated. The "conversation" has begun. Over to you, Deaccession Police.

UPDATE: Paddy Johnson: "The Association of Museum Directors should have disqualified museums with endowments over a certain size from deaccessioning work. The Met does not need to do this."

Greg Allen: "The Met rolls out its deaccession plan in an exclusive to the Times. Meanwhile no comments from the trustees with the billions to fund the budget gap who will vote on selling artwork instead."

UPDATE 2: Brian Frye: "This is big news. If the Met starts deaccessioning in order to generate operating revenue, it's game over for the deaccessioning police. I'll eat my hat if they don't go bananas."

UPDATE 3: They're going bananas. No hats need be eaten.

"Last night I watched 'The Art of the Steal,' a 2009 documentary about the Barnes Foundation. It’s an Impressionist museum that moved from Merion, Pennsylvania about 5 miles to central Philadelphia. According to the movie, the Barnes was pillaged." (UPDATED)

Kriston Capps watches The Art of the Steal and concludes: "THIS DOC IS INSANE."

I could have told him that a decade ago.

As he says, the bottom line is the Barnes remains:

—Open

—Not ruined

—With all the paintings exactly the way weirdo Barnes hung them

—In a replica of the original rooms

—Only moved 5 miles

—Where millions of people can visit.

Yeah, a real tragedy.

Remember that the usual suspects were deeply opposed to the five-mile move, including Christopher Knight (who appears in the INSANE DOC and who says "we're used to hearing about corporate takeovers with for-profit corporations. But this was a nonprofit corporate takeover") and Lee Rosenbaum (who wrote an op-ed in the Times under the headline "Destroying the Museum to Save It").

UPDATE: Brian Frye: "The deaccessioning police have always been the gift that keeps on giving. Amusingly, 10 years later, they still haven't ginned up any remotely coherent arguments."

"Among the latest cases are a sculpture that used cheese as a medium to mock former President Trump’s U.S.-Mexico border wall, a mural called a symbol of San Francisco’s LGBTQ community, and a work highlighting Vermont’s role in the Underground Railroad."

Bloomberg Law: "Between October—when the U.S. Supreme Court let stand a $6.75 million judgment against a developer for violating VARA—and December 2020, artists filed at least a half dozen VARA claims, four of them over the destruction or removal of public art."

Sergio Muñoz Sarmiento says: "As the cliche goes, careful what you wish for. More law only means more regulation and, moreover, an increased reliance on a structure that may be betting against you."

Tania Bruguera Arrested Again in Cuba

 Story here. It's not the first time.

The painting that's been stolen three times

 Graham Bowley has the details.

When they say held in the public trust in San Francisco, they really mean it (UPDATED)

KQED: Diego Rivera Mural at SFAI to Receive Landmark Designation, Preventing Possible Sale.

Background here.

UPDATE: New York Times story here.

Good summary of the new copyright small claims court law

From David Steiner here.

"The Everson Museum of Art in Syracuse, New York, which last year controversially sold off a prized Jackson Pollock drip painting to shore up funds to diversify its holdings, has announced the first new slate of artworks to enter its collection."

They include works by ceramicist Sharif Bey, multimedia artist Ellen Blalock, and painters Dawn Williams Boyd and Ellen Lesperance. The museum's director says "these works, in particular, speak directly to some of the most pressing issues of our time, including the perpetuation of racist ideologies and violence against people of color, the global impact of climate change, and systemic inequities related to race and gender, among others."

As artnet news notes, the art critic Christopher Knight described the Pollock sale as “inexcusable,” arguing that the museum was “betraying its legacy” by “privatizing” a remarkable and historic painting. See also here and here.

"France's highest court orders retrial of art-dealing Wildenstein family"

 Story here. Background here,

Pop quiz: Is this repulsive? (UPDATED)

The New York Times had an article yesterday headlined "San Francisco’s Top Art School Says Future Hinges on a Diego Rivera Mural."

Apparently, the San Francisco Art Institute "was close to losing its campus and art collection to a public sale last fall, when the University of California Board of Regents stepped in to buy its $19.7 million of debt from a private bank, in an attempt to save the 150-year-old institution from collapse," but, despite that, "years of costly expansions and declining enrollment at the institute have put it in peril, a situation that has worsened during the pandemic."

As a result, the institute is considering a sale of "a mural worth $50 million by Diego Rivera that officials say could help balance the budget." According to the Times, "the school has stressed that no final decision has been made to sell the mural. But behind the scenes, administrators and the institute's leaders are strongly pushing to do so, as it would pay off debts and allow them to make ends meet for an annual operating budget that typically runs around $19 million. (The board chairwoman, Pam Rorke Levy, disputed that, saying, 'Our first choice would be to endow the mural in place, attracting patrons or a partner institution that would create a substantial fund that would enable us to preserve, protect and present the mural to the public.')"

My question is: if they do decide that the only way to remain viable is to sell the mural ... would that be repulsive? Would it be unethical?

Would it change your answer if the buyer was "the filmmaker George Lucas [who] was interested in buying the mural for the Lucas Museum of Narrative Art in Los Angeles," thus satisfying the Ellis Rule?

The Deaccession Police will say the institute should just go shake the Magic Money Tree, but if you read the article you'll see that's not so easy.

UPDATE: SFAI MFA graduate (and conceptual law professor and Deaccessioning Hall of Fame Scholar-in-Residence) Brian Frye tweets: "I think the obvious answer is that the school should absolutely sell the mural. But it should also focus on reforming its board & management. Their incompetence is truly shocking."

"When the Crystal Bridges Museum bought this piece, they bought something that the law does not recognize. It is owning nothingness."

Guy Rub discusses his law review article Owning Nothingness: Between the Legal and the Social Norms of the Art World.

"The provisions tightening scrutiny of the antiquities market were contained within the sprawling National Defense Authorization Act, which Mr. Trump vetoed last week and which the House and Senate voted to override"

The New York Times:  Congress Poised to Apply Banking Regulations to Antiquities Market.

Nutshell summary: "Exactly how the new law works will be determined over the next year by the Financial Crimes Enforcement Network, a bureau within the Treasury Department, in consultation with the private sector, law enforcement and the public. Legal experts expect that the new antiquities regulations will be similar to others governing the precious metal and jewelry industries, where certain transactions are flagged to the authorities, who then determine whether they are suspicious. The law also seeks to end the use of shell companies to conceal the identities of buyers and sellers."

The usual good analysis from Nicholas O'Donnell here. (Nutshell summary: "Short version? It does less than it seems and probably isn't worth the cost, but it's a sign that change is coming and the market needs to get involved.")

"One of the few silver linings to emerge from the pandemic was the announcement, back in April, that the American Alliance of Museum Directors had relaxed its guidelines on deaccessioning. For now, museums can sell works to pay for operating expenses. Few have followed through, however—perhaps because art-world pundits, once again, responded with conservative alarm."

I just came across this piece by Nikki Columbus in n+1, which includes the following on the BMA deaccessioning controversy:

"The latest scandale du jour is the Baltimore Museum of Art’s deaccession plans. While legitimate questions have been raised about the upcoming sale of three paintings, the castigation is redolent with racial privilege. In a particularly ghoulish piece of commentary ('As night follows day, natural disasters bring out the scammers ready to exploit public confusion and fear'), the Los Angeles Times’s Christopher Knight recently complained about 'mission-driven' deaccessions—i.e., selling works to finance increased equity and diversity for both museum employees and audiences, by raising salaries, restructuring staffing, offering free admission, and expanding museum hours. Yet the alternative is ensuring that the office and the visitors remain white, while security and maintenance stay Black and brown. It is effectively an argument for maintaining white supremacy at museums."

"How ‘deaccession’ became the museum buzzword of 2020"

LA Times: "For the art world, 2020 was the year that the Black Lives Matter movement spurred a deeper conversation about inclusion and equity, ultimately leading some museums to sell off works by certain artists — usually white, often male — ostensibly to diversify their permanent collections."

"On Friday, Sotheby’s filed a 27-page memo in New York State Supreme Court asking a judge to dismiss the case."

Eileen Kinsella at artnet news: Sotheby’s Pushes to Dismiss the New York Attorney General’s Lawsuit Over Its Alleged Role in Helping a Collector Evade Taxes. Background here.

"It cannot be seriously disputed that the COVID-19 pandemic is a natural disaster. One need look no further than the common meaning of the words natural disaster."

Phillips has prevailed in the force majeure lawsuit brought against it by Joe Nahmad, mentioned earlier here.

Two of the three New York Times art critics mention the BMA deaccessioning controversy in their year in review lists

Holland Cotter says "last May the Baltimore Museum of Art planned to auction works from its collection to pay for — among other things — equitable staff salaries, only to be hit by a firestorm of protests," and that they had "legitimate arguments to make, but didn’t make them convincingly, and had to pull back."

And Jason Farago says "on deaccessioning, I’m not a strict constructionist. Selling art that hasn’t been shown for decades can sometimes be justified. But strategically raiding your galleries for cash is a scandal; equity and preservation are not at odds; and woke austerity is still austerity."

Cotter's list includes a number of other art law related things: "continuing a trend from 2019, museum workers, voicing grievances based on racial discrimination and economic exploitation, have increasingly sought to unionize"; "after three years of foot-dragging, the French Senate signed off on a bill in November promising to return a group of looted objects to Africa"; and "this past July, after years of advocacy, a bill proposing the establishment of a National Museum of the American Latino in Washington was finally passed by the House of Representatives."

Meow Wolf Case Survives Motion to Dismiss

 Sarah Cascone has the story here. The decision is here. Background here.

Copyright year in review

From Rebecca Tushnet.

"A Baltimore museum tried to raise money by selling three pricey artworks. It backfired stupendously."

Sebastian Smee and Peggy McGlone go over the BMA saga in the Washington Post. They end up here:

"But there’s one thing the Baltimore episode made clear: even the most noble of causes, including paying the mostly minority guards a living wage and improving access for the community, can’t be funded by monetizing the collection."

Leaving aside that there is one noble cause that everyone agrees can be funded by monetizing the collection (buying more art), that really is the question, isn't it? Is the correct moral principle that, no matter how noble the cause, it can never be funded through the sale of art?

"Tania Bruguera Detained Amid Protests Over Artistic Freedom in Cuba"

 ARTnews story here. This is not the first time.

"Will 2020 be seen a turning point in the debate?"

 AEA's Harry Fisher-Jones on The deaccessioning debate: 1990-2020.

"The sale is the second since the summer, when MOLAA announced an online auction of 167 artworks from Latin American and Latino artists to benefit a COVID-19 recovery fund. The museum has been shuttered since March."

Christopher Knight in the LA Times: Museum of Latin American Art is selling dozens of works from its collection.

The story points out that "according to financials posted on the museum’s website, in 2019 MOLAA already faced a deficit of $340,617 on an annual budget of nearly $3.7 million."

Vermont Law School VARA Suit

There's a brief mention at Courthouse New Service here. This is the one where they gave the artist 90 days to remove the mural back in the summer, but he claims in his complaint (which you can read here) that it can't be removed without destroying it.

New York adopts post-mortem right of publicity

 A pretty big deal.

"5Pointz Developer Agrees to Pay $2 Million in Attorneys’ Fees"

 Bloomberg story here. This is on top of the $6.75 million judgment previously awarded.

"When the BMA tried to diversify its collection, it learned just how shallow the art world’s commitment to social justice can be."

"According to its critics, if the BMA wants to diversify its collection, it should raise money from donors to buy more art, rather than trading some art for other art, as the AAMD deaccessioning rules permit and even encourage. In other words, art museums should diversify their collections with all deliberate speed. I think they can and should move a little faster."

Brian Frye at Hyperallergic.

"Restitution is widely considered a just and appropriate form of deaccessioning. Might there be other circumstances under which deaccessioning could be considered a form of restitution?"

Very interesting Artforum piece by Julie Pelta Feldman on the Baltimore Museum deaccessioning controversy.

She observes that "the vitriol aimed at BMA director Christopher Bedford and the curators responsible, Asma Naeem and Katy Siegel, has been particularly bitter," mentioning in particular criticisms from Brenda Richardson ("nothing short of horrified"), Christopher Knight ("The sleaze is almost too hard to wrap your head around"), and Martin Gammon (an "onslaught of unbridled commodification"). Summing up the art world reaction, she writes: "Deaccessioning, many critics believe, should not be instrumentalized, no matter how worthy the museum’s plans for its yield."

"Yet," she then points out, "restitution, too, is a type of deaccessioning: through it, an object is removed from the otherwise inviolate realm of a museum’s permanent collection and finds a new home. Unlike many other instances of deaccessioning, this occurs not because the object itself is in some way flawed, damaged, or otherwise undesirable, but because it is the right thing to do. Indeed, restitution would mean little if the artworks and artifacts in question were not precious and important. It represents an acknowledgment of the colonial pillaging that undergirds many of the world’s finest museums, a demonstration of respect to the people who were robbed, an apology to their descendants, and a commitment to redress historical abuse."

She goes on: "For decades, museums that collect modern art have privileged certain artists and art histories at the expense of others. Collection diversification is not simply a worthy goal, it is—like restitution—a necessary correction of inequities embedded deep within museums’ structures, histories, and collections. ... Museums that deaccession works to diversify their collections indeed give up a piece of themselves, but they do so in pursuit of a new wholeness. ... [I]f restitution means surrendering the ownership of an artwork—even or especially a treasured one—in pursuit of justice, the BMA’s new plan might also be understood this way. Critics of deaccessioning worry that curators will succumb to mere fashion. But women and artists of color are not a trend, and neither is a security guard’s right to a living wage."

I suspect one response to this, from those many critics, will be "yes, those are worthy goals, but let the board members pay for them."

Another tragic deaccessioning story

A David Hockney portrait sold by the "financially strapped" London Royal Opera House at Christie's for $17 million last month has ended up ... at the London Royal Opera House. It was bought by the chair of the Opera House's board of trustees. "He also has plans to loan it to the reopening exhibition of London’s National Portrait Gallery, where [he] is a trustee, in 2023." "As the Chairman of the Royal Opera House and the National Portrait Gallery," he says, "I care deeply about the arts being as accessible as possible and their educational value. I decided to participate in the auction to secure the painting for the British public."

"The artists argue the removal of the mural was in violation of their rights, specifically the legally-required preservation of their work, under the Visual Artists Rights Act" (UPDATED 2X)

 "Artists of iconic mural at the Stud sue building owner for 'whitewashing' their work."

UPDATE: Brian Boucher picks up the story at artnet. He gets quotes from Sergio Muñoz Sarmiento ("Do these property owners simply wish to not seek legal advice from lawyers? Or, if they do, do they simply disregard the advice?") and Amy Adler ("[VARA is] incompatible with deep-seated American notions of what it means to own property, and the idea that if you own something, you can do whatever you want with it").

UPDATE 2: Brian Frye says "the discussion of 'recognized stature' should be interesting in the case of this work." Andrew Gilden adds that it's "really hard to assess [a] VARA claim when you subjectively mourn the loss of a particular queer art/space but fear that the space lacks sufficiently 'recognized stature' within the community more broadly."

"Should British museums sell to stay afloat?"

The Guardian on the UK version of the deaccessioning debate.

It includes the following: "In England, the rules about these matters are laid down by the Museums Association’s code of ethics, used to set Arts Council England’s standards, and they state that artefacts 'should not normally be regarded as financially negotiable assets'."

Obviously that puts a lot of weight on normally. In the U.S., by contrast, the "ethical" rule is artworks should not normally ever be regarded as financially negotiable assets unless the plan is to use the sale proceeds to buy other artworks in which case feel free to regard them as financially negotiable assets.

"'It’s an artwork,' he added. 'It’s freedom of expression. It’s not complicated.'"

The New York Times reports that the Village of Kinderhook says a Nick Cave text-based work installed on the facade of Jack Shainman's upstate gallery is "a sign, and hence in violation of local code, and wants it removed."

Held in the public interest

Carolina Miranda has a column in the LA Times on the (now paused) Baltimore Museum of Art deaccessioning plan. It's of the "the goal was absolutely commendable" but "the methods used to achieve that worthy goal were questionable" genre.

One thing caught my eye, and I'm not sure how much (if anything) to read into it. Instead of saying that the works owned by museums are "held in the public trust," as is typical, she writes:

"A museum’s collection is held in the public interest — think of it as a shared cultural resource — and shouldn’t be treated as an asset. Selling off works to make operational changes dips into that resource — in this case, without first reassessing budget priorities or pressing wealthy benefactors to pitch in."

"Sotheby’s Sued by New York for Helping Client Avoid Taxes"

Bloomberg: "Sotheby’s allowed $27 million of art to be purchased tax-free by Porsal Equities ... even though the auction house knew the client wasn’t an art dealer but was instead a collector buying for his personal use, the state said in a lawsuit filed Friday. Only dealers planning to resell art qualify for exemptions to city and state sales tax, the state said."

"Artist Sues Federal Contractors for Destroying ‘Border Wall’ Made of Cheese"

 Story here.

One further thought on the latest deaccessioning discourse

One talking point the deaccession police seem to have coalesced around recently is that, while they agree with the goals behind the Baltimore sale, the right way to achieve those goals is for the board members to pony up the cash, rather than by selling art. Glenn Adamson summarized that position (on his way to critiquing it) as "diversifying collections, while a worthy goal, should be paid for by trustees, not through high-profile art sales." Hilarie Sheets's recent NYT article quotes a former Baltimore board chairman's criticism of the museum for "taking what seems to be a shortcut approach to monetize the art instead of doing the more difficult work of fund-raising and development." And the National Review's Brian T. Allen (former director of the Addison Gallery) puts it this way: "If the rich honkies want to strike a blow for equity, they should open their own wallets. ... The director, if he wants to buy art by artists based on race or gender or nationality, should go out and raise the money from donors."

My question is how come no one ever makes this argument when museums sell work to buy other art? How come nobody says those acquisitions should be paid for by trustees, not through art sales? Why isn't that seen as taking a shortcut approach of monetizing art instead of doing the more difficult work of fund-raising and development? Why don't we say, if a director wants to buy art (not just by artists based on race or gender or nationality, but any art), she should go out and raise the money from donors?

"Two Museums Tried to Sell Art. Only One Caught Grief About it."

Hilarie Sheets in the New York Times on the different responses in the art world to the announced sales by the Brooklyn Museum and the Baltimore Museum of Art: "If the disparate reactions to the two sales are a bit bewildering, welcome to the world of deaccessioning."

She mentions the following as possible explanations for the different reactions. In Brooklyn, "the [financial] need was acute."  They were (according to their director) "extremely conservative" in their selection of objects for sale: the Monet, for example (the sale included works by Monet, Matisse, and Miró), was "not one of his great works nor close to the best in our collection." The museum "has been cautious in how the money would be allocated in its collection’s care fund. 'We didn’t just say, "Here’s all the salaries for the conservators"; we estimated the time they would actually spend caring for an object.'"

Baltimore, on the other hand, "had a balanced budget and no layoffs or furloughs." The intention of the sale is "to raise funds for more equity-based initiatives at [the] museum — in a city with a 68 percent Black population," to "acquire more work by underrepresented artists and to create an endowment for collection care that would free up about $2.5 million in the budget for staff-wide pay increases and other equity-oriented measures." Arnold Lehman, a former director of both museums, is quoted as saying the works involved are "masterpieces — as good as you’re going to get of late Warhol, as good as you’re going to get of Marden and a fabulous Still.” The Still, "a gift of the artist who lived in Maryland late in his life, is also the only work of his in the collection."

Sheets says the AAMD "expressed no concerns at first" -- "'They are in line with how A.A.M.D. has defined this resolution for this period of time,' its executive director, Christine Anagnos, said at the time of the announcement" -- but "the blowback was swift from art critics, historians and museum professionals." She quotes from the resignation letter of a former board chairman (and now honorary trustee), Charles Newhall III, who says "I certainly do not believe that one sells masterpieces to fund diversity," and another former trustee who opposes "taking what seems to be a shortcut approach to monetize the art instead of doing the more difficult work of fund-raising and development."

She ends, however, by quoting Rev. Dr. Alvin C. Hathaway Sr., of the Union Baptist Church in Baltimore, who asks “Is the value in the art or is the value in the accessibility of others to have access to the art and to have their art valued as well?," and she gives the last word to Christopher Bedford, Baltimore's director:

"As an institution, we value the perspectives of colleagues and understand the importance of adhering to the professional guidelines that govern our field. I do believe, though, that the moment has come to more deeply consider the standards by which museums operate. The turmoil we are experiencing is not simply financial; it is the result of entrenched systems that cannot sustain the moment or the future. Our communities are calling us to action, to move beyond words and symbols."

"In a shocking last-minute move, the Baltimore Museum of Art has 'decided to pause' its plans to sell three works from its collection with Sotheby’s .... The news was announced by the Maryland institution just two hours before two of the works were expected to hit the auction block in New York."

Breaking news here.

"A Billionaire Is Allegedly Blasting the ‘Gilligan’s Island’ Theme Song to Punish His Neighbor for Complaining About His Dale Chihuly Sculpture"

 Your headline of the day.

"In defence of progressive deaccessioning"

Glenn Adamson makes the case in Apollo magazine.

He addresses three arguments critics have made in recent days.

The first is that "equity in collections is such a distant goal that there’s no point even trying to achieve it." His response:

"[Christopher] Knight calculated that ‘the Everson would need to unload half of its collection for it to reflect the diversity of a city that is 45% nonwhite.’ Art historian Tyler Green, similarly, has said, ‘none of these sales fundamentally address these institutions’ histories of racism or sexism. They are attempts to elide a broader, deeper self-examination’. Against such objections, one might reasonably ask: if progressive deaccessioning doesn’t count as addressing problematic institutional histories, what would? It took generations for museums to establish themselves as bastions of white supremacy. No one believes that undoing this legacy will be either quick or easy. Surely we should not accept that sexism and racism are so entrenched that they cannot be uprooted? The only way to begin is to begin."

The second is that "diversifying collections, while a worthy goal, should be paid for by trustees, not through high-profile art sales." He says "this may sound persuasive – if you’ve never worked in a museum. If you have, it will probably provoke a bitter laugh. Directors and development officers are already raising money as fast as they can ...." (I've previously referred to this as the Magic Money Tree argument.)

The third – and "perhaps the most convincing" – is that "it results in important works being lost from public view." But here too, he says, "there is an obvious rejoinder: the great majority of museum collections are in storage anyway. If a work will not see the light of day in the foreseeable future, and is well published both online and otherwise – ... it’s not clear what exactly the general public is losing when such a work enters private hands. True, external scholars may have less direct access to it in the future; but those same scholars might well agree that their own academic interests are less important than equity in our institutional collections."

More Baltimore

Hard to keep up with all the Baltimore commentary. I'll try to round a bunch of it up here and update as they come in.

Christopher Knight: against it. (Brian Frye: not impressed.)

Tyler Green. Lee Rosenbaum. Former Baltimore Museum director Arnold Lehman. All against.

Martin Gammon responds to Asma Naeem and Katy Siegel.

Full Circle

Thinking more about Mark Stryker's excellent tweet yesterday --  where he basically says in one sentence what I've been trying to say here for about 12 years -- and Everson board president Jessica Arb Danial's excellent piece, I'm reminded of the initial question I had about this whole issue, as quoted in Jori Finkel's New York Times piece all those years ago:

"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."

I still think that's the right question.

We know, as Stryker reminds us, that museums sell work whenever they want, so it cannot be the case that they are held in public trust. The only issue is use of proceeds.

The Jessica Arb Danials of the world think there is another use of proceeds, besides buying art, that can justify a deaccessioning -- namely, social justice, equity, diversity, representation.

Her opponents disagree with that view.

Isn't that what it really comes down to?

"He would also withdraw the portion of his complaint that his rights were violated under the Visual Artists Rights Act."

 An update on the toilet gardens lawsuit.

A Second Round of Deaccessioning at the Brooklyn Museum

This round includes works by Monet, Miró, and Degas. Previous round here.

These sales are completely ethical -- the AAMD, which as we all know has the power to say whether or not something is ethical, has decreed it so. Some people are unhappy anyway.

Former Detroit Free Press arts reporter Mark Stryker tweets: "in future, critics will point to hypocrisy of museums selling whenever they want but crying 'public trust' only when convenient. The critics will be right."

Or, put another way: Tell me again about the public trust.

"While fine arts experts and critics may try to shame the Everson and other like-minded museums for the decision to deaccession for the purpose of creating an endowment to diversify the collection, these voices are echoing decades of status quo art history textbook and gallery etiquette, rather than the realities we are living today."

 "To seek to impose one’s ideals of an art museum, without considering how significantly the world has changed these last few decades, let alone these past few months, is nothing short of tone-deaf. Every one of us, especially in the arts, should be acting. The Everson is resolute in its decision to represent our community and will not miss out on an opportunity to create meaningful change.

In the "other" big deaccessioning story, the President of the Everson board defends the decision to sell a Pollock and use the proceeds to diversify its collection, including also the following:

"We see our role in this community as being much greater than retaining a single work of art, a status quo or the rigid sensibilities of a few critics, commentators and professional associations. We have something bigger in our hearts and minds, and it includes contributing most meaningfully to a community that is divided and hurting, preserving the talent of diverse artists still fighting barriers for entry and igniting the aspirations of young people who need to see themselves represented by artists."

Background, including comments from one of those critics, here.

Latest on the Baltimore Museum Deaccessioning

The LA Times: "A group of 23 prominent supporters of the Baltimore Museum of Art, including former trustees at the BMA and the nearby Walters Art Museum, has written to Maryland Atty. Gen. Brian Frosh and Secretary of State John C. Wobensmith to demand that they intervene to stop the impending sale of paintings from the storied museum’s collection."

Christopher Knight calls it "a blistering and closely argued six-page letter." Tyler Green has thoughts here. Lee Rosenbaum is here.

The museum's response -- including that "deaccessioning artworks from a museum's collection is a standard practice" -- can be read here.

The Baltimore Sun's editorial board weighs in here: "it’s an understandably painful pill for some to swallow. And change in general is uncomfortable. But we prefer to think of it not as closing a door on certain works by these white artists of the past, but instead opening the door to including diverse artists of the future, who would not have had the opportunity to be seen and appreciated in the same way in any other time in history, along with the new audience they could attract."

Two museum curators defended the move here. Background here.

"Museums are not mausoleums or treasure houses, they are living organisms, oriented to the present as well as the past, and that is where the fundamental disagreement lies."

Baltimore Museum curators Asma Naeem and Katy Siegel respond to critics of the museum's recently announced deaccession plan.

"Baltimore Museum to Sell 3 Blue-Chip Paintings to Advance Equity"

Still catching up on blogging, and last week's big story was the Baltimore Museum of Art putting three major paintings up for sale and planning to "use its $65 million windfall to help advance salary increases across the board, invest in diversity and inclusion programs, offer evening hours and eliminate admission fees for special exhibitions." The New York Times story is here. Eileen Kinsella has more here.

Christopher Bedford, the Museum's director, says "this is done specifically in recognition of the protest being led by museum staff to be paid an equitable living wage to perform core work for an institution with a social justice mission — that symmetry between who we say we are and what we actually are behind our doors."

As the Times points out, the Museum is "taking advantage of the Association of Art Museum Directors’ temporary pandemic-era loosening of its deaccessing guidelines. ... The B.M.A.’s game plan is ... in line with how the museum association defined its new resolution active until April 2022, said Christine Anagnos, its director. The first $10 million of proceeds from the ... sale will go into the museum’s endowment fund for acquisitions, with an emphasis on artists of color of the postwar era. The rest of the proceeds, approximately $55 million, will be used to create a new endowment for direct care of the collection. This fund should generate approximately $2.5 million annually in income, to cover the salaries of curators, registrars, conservators, preparators, art handlers, administrative staff and fellows, and other collection-related expenses."

I discussed that temporary pandemic-era loosening of the AAMD's deaccessioning guidelines here.

Cert. Denied in the 5Pointz Case (UPDATED)

Story here. Background here. Brian Frye tweets: "I think VARA is terrible policy & I think the underlying decision was wrong on both the merits & the remedy. But the defendant was defiantly unsympathetic, so..."

UPDATE: New York Times story here.

"Today came news that the cutting-edge warehouse, opened by the real estate firm Carye Equities for a reported $40 million and managed by shipping industry experts, is shutting down for good."

 ARCIS -- once described as "a tax-free zone in search of a tax" -- has closed down. Eileen Kinsella has the story here.

And speaking of Deaccessioning Hall of Fame Scholar-in-Residence Brian Frye ...

 ... an interesting conversation between him and another friend of the blog, artist/lawyer Alfred Steiner, at Brian's excellent Ipse Dixit podcast. Here's a good recent example of a Steiner project -- a Public License for Criminal Use.

The other big deaccessioning story ... (UPDATED)

 ... is that the Everson Museum of Art in Syracuse is deaccessioning a Jackson Pollock -- estimated at $12-18 million -- and will use the proceeds to diversify its collection. The Baltimore Museum did something similar a couple years ago.

I would have guessed that, because the sales proceeds are being used to buy more art (among other reasons), this would be non-controversial, but surprisingly (to me at least) it's been met with a good deal of criticism. Both Christopher Knight and Lee Rosenbaum have come out strongly against it.

In response to Knight's piece, Deaccessioning Hall of Fame Scholar-in-Residence Brian Frye tweets: "Christopher Knight, the Inspector Clouseau of the Deaccessioning Police, now has a bee in his bonnet about the Everson Museum selling a Pollock in order to diversify its collection. Amusingly, he can't even invoke the (meaningless) AAMD deaccessioning rules, which expressly allow museums to sell works in order to buy different works. All he can do is whine that the museum is selling a work he happens to like in order to buy something else. Tell me more about how 'diversity is important, but...'?"

Everson Director Elizabeth Dunbar says:

"The murder of George Floyd and a string of senseless killings of Black lives have propelled us into urgent discussions surrounding the Museum’s role and responsibility in fighting racism inside and outside our walls. Now is the time for action. By deaccessioning a single artwork, we can make enormous strides in building a collection that reflects the amazing diversity of our community and ensure that it remains accessible to all for generations to come."

In response, Knight says this approach -- selling work "to the highest bidder [as a] way to bring racial and gender equity to the institution going forward" -- is "balderdash. The Everson would need to unload half of its collection for it to reflect the diversity of a city that is 45% nonwhite, according to the most recent census estimate." He also says the trend of museums "sell[ing] art by blue-chip white artists to create a diversity acquisition fund" is a "terrible" one: "The goal of diversifying white patriarchal patterns of museum art collecting is hugely important. This sort of quick fix belies the seriousness."

UPDATE: A local response to Knight here.

"It is the kind of sale that once would have engendered criticism, perhaps even sanctions .... But it is now completely within the parameters of loosened regulations ...."

I've been behind on my blogging the last few weeks, but the big news of course was the announcement by the Brooklyn Museum that it would be selling 12 works -- including paintings by Cranach, Courbet and Corot -- to raise funds for the care of its collection.

As the Times article points out, the Museum is the first major institution "to take advantage of" the (temporary) change in the AAMD's deaccessioning guidelines, announced in April.

One point I haven't made before about that change is how it completely undermines the public trust argument against deaccessioning. If you really believe that a museum holds its collection in the public trust -- as if the museum is the trustee and the public is the beneficiary -- then how does a change in policy by some third-party organization release the works from the public trust? Where does the AAMD get that power? Who made it the arbiter of what is or is not held in public trust?

The other thing that undermines the public trust argument against deaccessioning, as I've said a million times here before, is that museums sell works all the time, so obviously they can't be held in the public trust. If the Museum in this case had announced it was selling the same 12 works and putting the sales proceeds in a bank account labeled "acquisition fund," no one would have batted an eye. But using the same proceeds to care for its collection brings out the usual ritual denunciations.

"Mr. Brand speculated that this painting was chosen precisely because it had been stolen before, and thieves assumed it 'must be important.'"

 NYT:  17th-Century Dutch Painting Is Stolen. Again.

"According to a lawsuit filed in federal court Friday, Frederick 'Hank' Robar is requesting no less than $7 million in damages from the village as the infamous 15-year dispute over his 'toilet gardens' enters its likely most contentious chapter to date."

There's a headline for you. Story here.

One of his claims is under VARA.

What Happens If Your Gallery Goes Belly Up?

 Tom and Charles Danziger explain.

"The style we’re after is very much inspired by your work and that of other artists like Steven Paul Judd and Frank Hyde"

 The Art Newspaper:  Redbone music video sparks artist dispute over copyright infringement.

Another example having to do with the scope of protection for an artist's style (as opposed to a specific work).

"All buyers must also sign a contract with extensive conditions. They must agree not to resell the work at auction for at least five years; if they do want to sell, they must give the artist right of first refusal; and, if they sell to someone else, they have to give 15 percent of the upside back to the artists."

A contractual resale royalty is in place for "'Say It Loud (I’m Black and Proud),' an online selling exhibition at Christie’s that opened on July 31 and is dedicated to the promotion of Black art."

Arlene Dávila tweets: "Great example of how curators can advocate for artists' resale royalty rights. Let's stop the speculation & the unequal model where only collectors/speculators benefit from the evaluation of artists' works."

The Christopher Sprigman view of this would be that it will to some extent suppress the price buyers are willing to pay for the works in the auction (i.e., that you would pay for more for an asset that comes with no strings attached than you would for the same asset with these conditions).

Sergio Muñoz Sarmiento: "One thing that really annoys me is how articles like this get written with absolutely no mention of well-known historical precedents, like Robert Projansky’s and Seth Siegelaub’s The Artist’s Reserved Rights Transfer And Sale Agreement, from 1971. God forbid there would be any mention of Hans Haacke or Michael Asher."

A while back, musician and art collector Swizz Beatz had a proposal for an auction house-based resale royalty scheme, mentioned here.

"The Albright-Knox Art Gallery is suing the architects who planned its warehouse expansion five years ago, alleging they failed to design a structure that would prevent condensation from occurring inside that could damage artwork and other precious items."

 Buffalo News story here.

"A Brooklyn Art-Storage Company Is Suing Art Dealer Fergus McCaffrey for Allegedly Failing to Pay His $145,000 Bill"

 artnet news story here.

"Staten Island artist Scott LoBaido has a lawyer and is ready to take on the de Blasio administration in court if the Department of Transportation continues to pressure him to remove his thin blue line outside of the 122 precinct."

The artist says he "painted the blue line as a way to stand in solidarity with the NYPD after Mayor Bill de Blasio announced he would paint 'Black Lives Matter” street murals across the five boroughs on the heels of nationwide racial injustice protests." His lawyer argues: "Cites can do one of two things, they can either paint nothing and take no position, or they can allow everybody to paint … their own political points of view on the streets. But they can’t selectively say ‘my political opinion is going to be allowed to be painted and yours is not, and if you paint yours, you’re going to be subject to fines, penalty, imprisonment."

"In a statement to the Daily News, he said: 'It may be left over from my divorce, but I don’t have such a bill.'"

 "Rudolph Giuliani, the former New York City mayor and attorney to Donald Trump, has been hit with a lawsuit in New York State Supreme Court by an art advisor who says he failed to pay for her appraisal services, which he received during his contentious divorce from Judith Nathan in 2019.  The advisor, Miller Gaffney, runs the firm MGAA. She is alleging that Giuliani owes more than $15,700 for services rendered."

"An Italian court was weighing whether to press charges, CNN reported on Wednesday."

 NYT:  Tourist Posing With 200-Year-Old Sculpture Breaks Its Toes.

"Art Companies Jostle for Ownership of Basquiat Painting in New Inigo Philbrick–Related Lawsuit"

The latest, from Alex Greenberger at ARTnews, here.

"Doubting Gauguin"

Sebastian Smee in the Washington Post: An amateur detective takes on the National Gallery, and the art world.

"G&M’s petition is the first direct challenge to VARA’s constitutionality, and the Supreme Court’s response to the petition should be closely watched by property owners—including retail stores that may commission street art to adorn their retail space, as well as the art world generally."

5Pointz Owner Seeks SCOTUS Review of VARA. Background here.