A trial court in Indiana recently dismissed a lawsuit challenging the proposed sale of three works of art by Valparaiso University: Rust Red Hills by Georgia O’Keefe, Mountain Landscape by Frederic Edwin Church, and The Silver Veil and the Golden Gate by Childe Hassam. This controversy highlights many of the issues surrounding the deaccession of art by American museums. In ruling that the former director of the Brauer Museum of Art at Valparaiso and the museum’s key benefactor both lacked standing to sue the university over the planned sale, the decision tracked other recent results about non-profit oversight, highlighting just how critical the engagement of a state’s Attorney General is.

Whatever the merits of this rule on standing are, however, the university seems to be violating a condition of the 1953 agreement it made to obtain these works of art, yet nine months on the Attorney General has not exercised his undisputed prerogative to stop it. Non-profit governance is hard in a world of finite charitable resources. But universities caught in the arms race of new dorms and laboratories would do well to consider the core mission and what makes it possible. The chance to sit with a painting by Hassam, Church, or O’Keefe was well recognized by the original benefactor Percy Sloan, and this university agreed to abide by that condition. It should keep its word. Selling art to plug budget holes is like eating the seed corn; it robs the future.

Topics: Rose Art Museum, Supreme Judicial Court, Deaccessioning, New York Times, Brandeis University, Berkshire Museum, Frederic Edwin Church, Attorney General, Mountain Landscape, The Silver Veil and the Golden Gate, Georgia O'Keefe, Childe Hassam, Rust Red Hills, Breuer Museum of Art, Percy Sloan, Junius Sloan, Sara Sloan, Justice David Lowy, Todd Rokita, José Padilla

Robin Pogrebin at the New York Times has written an excellent piece on the news that the Brooklyn Museum intends to sell several works from its collection to raise money. The museum explicitly relies on the pandemic-inspired announcement in April by the Association of Art Museum Directors (AAMD) relaxing its industry guidance (and pausing sanctions) with regard to the proceeds of the sale of art and how the resulting proceeds should or should not be used. The parallel announcement by a Syracuse museum that it intends to sell a Jackson Pollock painting in a manner more consistent with the old rules provides an instructive moment to consider what has really changed in six months of a new era.

Topics: The Art Newspaper, Jackson Pollock, Deaccessioning, Boston Globe, Association of Art Museum Directors, Lucas Cranach the Elder, New York Times, AAMD, Berkshire Museum, Apollo Magazine, Brooklyn Museum, Robin Pogrebin, Syracuse University, Anne Pasternak, Lucretia, Courbet, Corot, Red Composition, Lisa Simpson, Donato de’ Bardi, NY Board of Regents, Jeff Jacoby, C. Montgomery Burns, Royal Academy of Arts

Continuing our ongoing tracking of the effect of the Covid-19 lockdown on museums and arts organizations, I penned a column in Apollo magazine today. You can read the full article here (subscription required for more than three articles), the first paragraph is reprinted here as a teaser:

One key question for museums boards, management, and their supporters to ask right now is this: what do they actually want to accomplish when the Covid-19 crisis subsides and the lockdowns end? Is a museum its collection, its location, its staff or its visitors? Until recently we had the comparative luxury of asking these questions one museum crisis at a time. Should a small museum (for example, the Berkshire Museum in Pittsfield, Massachusetts) survive at all costs without the collection that created its very importance? Should it seek a better home for its collection but perhaps lose some of its unique character or even its individual existence (see the Corcoran Gallery of Art’s merger with the National Gallery of Art in Washington, D.C.)? Or should it evolve in a way that is perhaps contrary to its founders’ specific desires (the Barnes Foundation’s move to Philadelphia from the truly sui generis yet remote home in Lower Merion created by Dr Barnes)?

Now, with [read more here]

Topics: National Academy Museum, National Gallery of Art, Metropolitan Museum of Art, ICOM, American Alliance of Museums, Philadelphia, AAM, Association of Art Museum Directors, International Council of Museums, Corcoran Gallery of Art, AAMD, Barnes Foundation, Pittsfield, Berkshire Museum, Apollo Magazine, UPMIFA, endowment, Uniform Prudent Management of Institutional Funds

Since analyzing the likely consequence of gallery and auctioneer insolvencies last month, we have been keeping an eye on how the economic crisis borne of the COVID19 pandemic is affecting the art world. Essentially every museum in the world has had to close its doors in the last month, with the previously unimaginable effect of a 100% drop in attendance revenue. Every museum, from the largest and best-endowed to the smallest and cash-strapped, is grappling with how to sustain its people, its mission, and its future. There are no easy answers, but the Association of Art Museum Directors issued yesterday an interesting update to its longstanding ethical guidelines concerning deaccessioning and restricted assets. As I remarked in a conversation with ArtNews yesterday on the topic, the question of what—and who—an endowment and an art collection is for have never been more relevant, or more difficult to answer. When Brandeis proposed to close the Rose Art Museum in 2009 in the midst of the last financial crisis, the effects were long-lasting. I have negotiated considerable specific requirements to gifts on behalf of museums and donors to account for what, before that event, many had not considered. What will this catastrophe, which is already far worse, bring?

Topics: Brandeis, Metropolitan Museum of Art, American Alliance of Museums, Rose Art Museum, Association of Art Museum Directors, International Council of Museums, Museum of Fine Arts Boston, AAMD, Berkshire Museum, North Adams, Mass MoCA, COVID19, Board of Regents, Brian Allen, CARES Act, Financial Accounting Standards Board, Clark Art Institute, National Review

After four months of silence, the Berkshire Museum suddenly demanded last week that my clients dismiss their still-pending lawsuit over the governance of the museum by claiming that the April decision by the Single Justice of the Supreme Judicial Court that lifted the binding restrictions that the sales of its art collection would have violated somehow put an end to my clients’ case (which has been scheduled for oral argument on September 4, 2018 in Boston).  By letter on Tuesday, I explained that the museum was quite mistaken indeed.  Yesterday, the museum escalated and filed a request that Appeals Court simply dismiss the appeal, and actually accused my clients of acting in bad faith.  The museum also saw fit to put the text of the letter into a press release that it circulated widely through its public relations team. 

This afternoon we filed our response, the text of which is reproduced below.  Put simply, while the lawsuit quite explicitly sought to stop the sale of the museum’s art collection, the fact that some of the works have already been sold does not begin to answer the questions that the lawsuit raised. 

My clients look forward to the argument after Labor Day.

Topics: Deaccession, Supreme Judicial Court, Berkshire Museum, Trustees of the Berkshire Museum, Single justice

I will be speaking to the Copyright Society of the USA on Thursday May 10, 2018 at 5:30 pm at Northeastern University Law School at 250 Dockser Hall – 65 Forsythe Street in Boston.  The presentation will discuss the legal and ethical implications of recent sales or proposed sales by museums of works of art in their collections, including the Barnes Foundation, the Corcoran, and the Berkshire Museum.  The event is free of charge and open to the public.  RSVP is preferred but not required, see attached flyer for details.  the event is co-sponsored by the New England Chapter of the Copyright Society of the U.S.A. and Northeastern’s Center for Law, Innovation and Creativity.

Topics: Copyright Society of the U.S.A., Deaccessioning, Corcoran Gallery, Barnes Foundation, Berkshire Museum, Northeastern University Law School

(Boston, MA, February 26, 2018) Sullivan & Worcester LLP clients and Berkshire Museum members James Hatt, Kristin Hatt, and Elizabeth Weinberg filed today a brief with the Supreme Judicial Court of Massachusetts asking the state’s highest court not to permit the sale of 40 works of art by the Berkshire Museum. The Berkshire Museum filed a petition on February 9, 2018 asking the SJC to permit deviation from the historical restrictions that would prevent such sale. Today the museum member filed a brief as amicus curiae, or “friend of the court.”

Partner Nicholas M. O’Donnell, attorney for the members, said, “My clients are optimistic that the SJC will see through the Berkshire Museum’s petition to deviate from its historical restrictions as unnecessary, and harmful. Such a petition must show that the current state of affairs is impossible or impracticable, and that the requested change is ‘as near as possible’ to the original purpose of the institution. This petition fails to meet either criterion.”

Topics: Deaccessioning, Norman Rockwell, Sullivan & Worcester LLP, Nicholas M. O'Donnell, Pittsfield, Berkshire Museum, Shuffleton’s Barbershop

(Boston, MA, February 13, 2018) Sullivan & Worcester LLP clients and Berkshire Museum members James Hatt, Kristin Hatt, and Elizabeth Weinberg sharply denounced today the agreement that was announced Friday evening between the Berkshire Museum and Attorney General Maura Healey’s office to permit the sale of every one of 40 works of art that the members—and AG Healey—sued last year to prevent.  Only two weeks after filing a 50-page brief in the Massachusetts Appeals Court that detailed numerous violations of the Trustees’ fiduciary duties and specific restrictions on the 40 works of art, the Attorney General’s office has filed its assent to the Museum’s request to modify its governing charter to permit the immediate sale of Norman Rockwell’s Shuffleton’s Barbershop to an unnamed buyer, and to allow the sale of the 39 remaining works thereafter without any further oversight of the governance of the Museum.

Topics: Deaccessioning, Sullivan & Worcester LLP, Nicholas M. O'Donnell, Berkshire Museum, Maura Healey

Topics: Norman Rockwell, Sullivan & Worcester LLP, Sotheby's, Nicholas M. O'Donnell, Pittsfield, Berkshire Museum, Zenas Crane, Hudson River School, Frederic Edwin Church, Shuffleton’s Barbershop, Maura Healey, Massachusetts Appeals Court

The Single Justice of the Massachusetts Appeals Court (Joseph A. Trainor) has extended the injunction against the Berkshire Museum's proposed sale of 40 works of art in its collection until at least January 29, 2018.  In its order today in response to the Attorney General's status report, the justice stated:

Topics: Berkshire Museum, Attorney General, Maura Healey, Single justice, Massachusetts Appeals Court, Joseph A. Trainor