Introduction
In the fall of 2017, the Berkshire Museum in Pittsfield, Massachusetts roiled the art world when it announced that it planned to sell two important paintings by the beloved American artist Norman Rockwell in order to pay for a massive redesign of the museum.1 The paintings, Shuffleton’s Barbershop and Blacksmith’s Boy—Heel and Toe (Shaftsbury Blacksmith Shop) were valued at a combined estimate of forty million dollars.2 Rockwell’s children, as well as members of the museum and a local artist, opposed the sale.3 They argued that Rockwell—who was a Berkshire resident—gifted the paintings to the museum for the benefit of the Berkshire community, not to support the museum’s improvements.4
Meanwhile, the museum contended that its dire financial situation and the evolving nature of the public’s interest necessitated the sale.5 The American Alliance of Museums (AAM) and the Association of Art Museum Directors (AAMD) both decried the Berkshire Museum’s decision to sell the Rockwells as antithetical to the museum’s role in society.6 The organizations issued a statement that the sale of the paintings not only violated the ethical obligations of museums7 but that the sale would also have a chilling effect on the willingness of museum patrons and collectors of art to support charitable institutions.8
Litigation over the legality of the sale drew significant attention from the media, non-profit institutions, and private organizations such as galleries.9 Ultimately, the sale was allowed to go through.10 One of the paintings was purchased by a museum on the West Coast. The other—fulfilling the predictions of the sale’s staunchest critics—most likely wound up in private hands.11
Deaccessioning is the practice by which a museum disposes of art from its collection.12 It may involve the sale or exchange of works of art.13 The practice is significantly more prevalent in the United States than in either Europe or Latin America, where alienation of cultural property is restricted.14 Deaccessioning is often a healthy and useful way for museums to manage their collections.15 Nevertheless, every few years a museum’s decision to deaccession prominent works of art leads to intense criticism, debate, and scrutiny from the public and other cultural institutions alike.16 The issue came to the forefront most recently during the past year, when the AAMD temporarily loosened its deaccessioning policy in response to the financial stress experienced by museums as a result of the pandemic.17
In 2010, New York Assemblyman Richard L. Brodsky proposed legislation that would prohibit museums from using proceeds from the sale of artwork to pay for operating expenses.18 The bill was a response to the growing concern that museums were selling off valuable pieces from their collections in order to compensate for budget deficits as a result of the recession.19 The goal of the bill was to prevent a crisis of museums selling art into private hands due to the financial downturn.20 The bill ultimately failed to pass due to concerns that such a broad prohibition on sales of art would limit museums’ ability to appropriately compensate for financial downturns.21
Brodsky’s proposed legislation raised the question that is at the core of the deaccessioning debate: who has the right to decide whether art that is displayed for public viewership should be sold? If museums are considered custodians of cultural property that is kept for the benefit of the community, the intuitive answer would be that the members of the community should be allowed to contribute their opinions to how such property is managed. In other words, accepting the premise that because museums exist for the public and that the public, in a sense, “owns” the art, leads to the conclusion that the public should be involved in the management of the collection and any subsequent deaccessioning decisions.22
Traditionally, attorneys general are considered to be the best representation of the interests of the community, in keeping with the way that other nonprofit organizations are managed.23 However, museums present a unique challenge to this practice because the value of art is often difficult to quantify, and attorneys general historically have not been focused on the activities of nonprofit organizations.24
At present, courts have not reached a consensus as to whether deaccessioning for anything other than the direct care of collections is appropriate.25 The ethical guidelines suggesting that proceeds from the sale of deaccessioned art should not be used to finance operating expenses have not been consistently followed.26 Therefore, if museums increasingly see their collections as a source of revenue for budgetary issues,27 legislative guidance is necessary to protect the interests of the public that is meant to be served by the museums.28 However, because the code of ethics governing museums is not legally enforceable, and because current case law does not provide sufficient clarity on the appropriate legal standard to apply to matters concerning the deaccessioning of fine art, states should be prepared to adopt laws that will balance the interests of both museums and the communities that they serve.29
This Note argues that in order to prevent future litigation such as that faced by the Berkshire Museum—with disappointing results for the community—states should enact legislation that more closely resembles that of member states in the European Union (EU). Although free alienation of property is a landmark principle of American law, the fiduciary duties of museums to the public demand a closer look at whether art should be treated differently from other commodities.30 At the very least, legislation that establishes mechanisms for transparency and review of museums’ plans to deaccession art will strike a balance between the principle of alienation inherent in American property law and the need to protect cultural property so that it remains accessible to the public, thus upholding the ethical—but currently unenforceable—obligations of museums.
Part I of this Note provides background information regarding the museum as an institution, the obligations of boards of directors of museums, and an overview of deaccessioning practices both domestically and in Europe. Part II analyzes the problems that arise from a lack of legally enforceable standards for deaccessioning art from museum collections in the United States, with an eye toward the shortfalls in previously proposed legislation and the problem with litigation currently being the only mechanism to oversee deaccessioning practices. Finally, Part III will propose that states should enact legislation that will regulate deaccessioning to result in greater transparency, with European laws serving as a potential example of the type of legislation that may be enacted domestically.
I. Background
A. The Museum as a Charitable Institution
An art museum is generally defined as a public institution that serves an educational purpose and cares for the objects in its collection.31 A museum’s collection exists to serve its public purpose of educating and enriching the public visiting the museum.32 The inception of American art museums is owed in large part to a private impetus.33
A museum is considered “private” if “incorporated by private initiative” and is mostly funded by the private sector.34 However, a privately incorporated and funded museum may also be considered “public” if it is run for the benefit of the public.35 Moreover, a privately organized museum that relies on public subsidies for much of its support may be considered either private or public, while a museum organized by a government legislature may still be “private” if it’s not run by that government.36
B. The Legal Structure of a Museum
Museums are formed either as charitable (nonprofit) corporations or charitable trusts.37 This distinction contributes to a lack of judicial clarity on how museums should be held accountable to their standard of care.38 A charitable trust is established either through an inter vivos arrangement or a will, in which ownership of the property in question may be seen as divided among several parties.39 The trust’s creator appoints a trustee who holds legal title to the property.40 The nonprofit corporation achieves its status by filing articles of incorporation with the state in which it is located.41 As opposed to a charitable trust, which is administered by a trustee, a nonprofit corporation is run by an elected board of directors.42
Most museums are classified as nonprofit corporations.43 Similar to a trust, a charitable corporation holds property under an obligation to use it for the benefit of the public.44 A trustee of a museum is a fiduciary, holding particular legal obligations.45 The boards of trustees of charitable organizations, therefore, have both specific and implied powers with a degree of discretion in how the organization should be run in order to further its mission.46
As to the corporate form of charitable organizations: “The powers of the persons who act as directors of a charitable nonprofit corporation, whether called directors or trustees, are prescribed in the statute of incorporation, in the instrument creating the corporation, and those implied powers which are necessary and proper to carry out the purposes for which the charity was created and which are not in conflict with expressions in the instrument creating the charity.” Midlantic Nat’l Bank v. Frank G. Thompson Found., 405 A.2d 866, 869 (N.J. Super Ct. 1979). In practice, this means that assuming that if all affairs are otherwise in order, a board is generally given the benefit of the doubt.47
The museum as an institution is, therefore, generally run by a board of trustees.48 The board establishes policies governing operations, finances, and the management of collections.49 The board governs by majority vote, with the director making proposals for implementing and revising policies.50 Thus, the director carries the responsibility of caring for the museum’s collection and developing a program for the benefit of the public.51
The objectives of most museums are laid out in their bylaws and articles of incorporation.52 These documents tend to be both brief and broad in nature.53 Therefore, neither bylaws nor articles of incorporation tend to prove particularly practical for purposes of informing deaccessioning policies.54 Typically, the museum will also have a policy statement regarding deaccessioning written out by the board and the director.55 Such a statement generally defines the precise goals of the institution and explain policies related to collection management, including acquisition and preservation practices.56
C. The Standard of Conduct for Museums
Case law dealing with mismanagement of charitable organizations typically revolves around the standard of conduct to which the boards of such organizations are subject.57 With regard to the standard of conduct for board members of museums in relation to collection management, several cases in particular provide guidance. First, in the Museum of the American Indian case, the New York Attorney General brought suit against the museum trustees and officers for mismanagement.58 The suit alleged that the defendants had failed to keep proper records of the museum’s inventory, allowed “questionable” acquisition and deaccession practices, and were involved in “self-dealing.”59 The Attorney General contended that the board of the museum, as a charitable organization, had obligations to the public that required certain policies when it came to the management of its collection.60 A negotiation resulted in a stipulation under which the museum agreed to have the inventory of its collection made available to the public.61 Moreover, the stipulation also provided that the museum’s staff would no longer have unlimited discretion in managing the museum’s collection.62 Instead, the board of trustees would now approve all acquisitions and planned deaccessions.63
A similar case unfolded in Washington State.64 There, the Attorney General sued the trustees and former director of a Washington Museum. The complaint alleged that the director sold museum assets without the trustees’ permission and failed to properly record sale proceeds; that the director and trustees did not properly maintain the collection; that the building was not kept in repair; that the trustees failed to adequately supervise the director’s acquisition decisions; and that the trustees engaged in self-dealing by using collection items for personal benefit.65
Furthermore, the Attorney General’s allegations sought to hold the trustees personally liable for damages.66 Such allegations suggest that the Attorney General interpreted the standard of care to mean that the board members were required to actively pursue policies for the benefit of the collection and to oversee operations.67 The case was ultimately dismissed when the Attorney General and the defendants agreed that the museum would pursue one board member in particular who was considered primarily responsible for the alleged grievances.68
Similarly, in 1976, the Illinois Attorney General alleged that the officials of the George F. Harding Museum mismanaged the museum’s collections.69 Harding, a collector of primarily medieval art, first established his collection as a tax-exempt corporation in 1930.70 His will directed that the collection should be “managed and operated” as a museum, and that the four million dollars he left in trust should be used to that end.71 The plaintiff alleged that the Harding Museum and its officers engaged in “misuse and abuse of trust through self-dealing of the Museum’s property.”72 The lawsuit resulted in the transfer of Harding’s collection and associated assets to the Art Institute of Chicago.73 Significantly, the court noted that the ultimate goal of the settlement was “to do what is in the best interests of the trust and its beneficiaries, in this instance the people of Illinois.”74
The preceding cases suggest that museum board members are subject to the same duty of care as the directors of a business corporation.75 Nevertheless, the unique nature of nonprofit organizations result in courts applying a higher standard to their board members.76 Unlike a business corporation, whose primary purpose is to turn out a profit, the purpose of a nonprofit is to provide a benefit to the public.77 Therefore, for the purpose of maintaining public confidence, boards of nonprofit organizations are expected to do more than simply avoid negligence and fraud.78
In keeping with the practice governing charitable gifts and trusts, museums are generally accountable to state attorneys general, who are considered to be the best vehicle for ensuring that the institution is acting within public interest.79 The Attorney General is thus considered to be an appropriate representative of the public, charged with safeguarding the public’s interest in managing charitable organizations.80 In practice, however, attorneys general are rarely concerned with overseeing the mismanagement of museum collections.81 Constrained by limited time and resources, attorneys general have tended to focus more on cases considered to be of greater concern to the public than the manner in which museums are run.82 Despite the fact that in the last three decades increased public attention has lead attorneys general to look more closely at issues such as accountability, fund-raising, and deaccessioning, relying on state attorneys general has continued to be an inadequate mechanism for the oversight of museums.83
D. An Overview of Deaccessioning
Deaccessioning refers to the process of permanently removing an object from a museum’s collection.84 The term seems to have appeared for the first time in 1972 in the New York Times.85 When done properly, deaccessioning may be a vital part of collection management.86 Collection management may be broadly defined as encompassing the areas of conservation of existing artworks, security, insurance, exhibitions, and of course, deaccessioning itself.87 Along with the acquisition of new objects, thoughtful deaccessioning can help museums to grow and further their missions.88
While museums tend to actively publicize new acquisitions, partly as a way to encourage museum patronage, they tend to downplay or even hide decisions to deaccession.89 This is because museums tend to recognize that deaccessioning can result in a number of unfavorable results.90 For one thing, museums are afraid to disincentivize potential donors.91 If an individual is considering making a gift of a work of art to a particular museum, the knowledge that the work might not be held in perpetuity but could be sold at the discretion of a museum might lead the individual to reconsider gifting the work.92
Museums recognize that the prospect of having a work of art deaccessioned may discourage potential donors and therefore try to compensate for this by acknowledging that funds from the sale of a donated work of art have been used to purchase other works.93 For example, a museum might note on a placard that a new acquisition has been purchased with funds from the sale of a piece given to the museum by a prominent donor.94 Such attempts, however, may actually discourage donations because they rob the donor of the opportunity to approve of a work associated with their name.95 Donors may understandably be reluctant to risk having their names attached to a piece they may never see, let alone like.96 Therefore, while museums are not bound by the subjective intent of donors, the donors themselves or their families may decide not to provide more works to the museum as a result of deaccessioning, causing museums to lose both funding and a source of artwork.97 Unfortunately, despite these risks, many museums discourage donations with restrictions or refuse to accept them altogether.98
There are a number of reasons why a museum may choose to deaccession a work of art.99 Such reasons include the need to tailor their collections to their goals.100 Often, museums have a number of works in storage that may not be particularly valuable, either from a financial perspective or from the perspective of public interest.101 In such circumstances, deaccessioning may be seen as a necessary “weeding out” of superfluous objects.102 Moreover, most museums don’t have the luxury of unlimited storage space.103 Storage is not only expensive but requires additional measures for proper safeguarding of cultural property, including security, climate control, and efficient access—all of which cost additional resources.104
In addition to such practical considerations, because museums have limited resources, sometimes the only way for a museum to acquire new works is by exchanging items from its current collection.105 This might require sacrificing works of lesser value or prominence for the sake of new acquisitions.106 Furthermore, a museum’s mission itself may require periodic deaccessioning of objects.107 For example, a museum dedicated to contemporary art may not be able to keep its collection current without adapting its inventory to changing artistic trends.108
In certain circumstances, deaccessioning may actually be legally required.109 For example, the Native American Graves Protection and Repatriation Act establishes that museums receiving federal funding must return any Native American human remains and funerary artifacts in their collections when requested.110 Finally, financial stress may lead a museum to deaccession works of art.111
While all these reasons may be a normal and even necessary method of managing a collection, selling works of art to raise capital remains controversial.112 Significantly, deaccessioning for anything other than the improvement of a museum’s collection implicates both legal and ethical considerations.113 Since museums exist in order to benefit the public, the decision to deaccession a work of art should involve not just what a museum considers to be in its best interest but what the public considers to be in its interest as well.114
E. Deaccessioning and Accountability
Deaccessioning is primarily governed by codes of ethics, which are not legally enforceable.115 Rather, compliance with such standards depends on the willingness to do so by museum boards.116 The AAM provides that proceeds from the sale of deaccessioned objects should only be used to fund new acquisitions or to maintain existing collections.117 Thus, any funds raised by deaccessioning art should be used to acquire more art in furtherance of the museum’s mission or to care for objects already owned by the museum.118 The AAM code of ethics thereby precludes the expenditure of funds gained from deaccessioned art for purposes such as operations.119
Although ethical guidelines for museum practices state that works of art should not be deaccessioned for anything other than the purchase of additional works of art, deaccessioning is generally a legal practice.120 A museum may choose to sell an item in its collection unless there is (1) an enforceable donor restriction; (2) a restriction in the museum’s founding documents; or (3) an applicable statute.121 Moreover, it is important to distinguish the purpose of a nonprofit organization, such as a museum, from a for-profit organization in this context.122 It would be difficult to argue that a for-profit organization should be limited in collection management for the purpose of anything other than business.123 However, since the purpose of a nonprofit is generally to carry out a mission for the benefit of the public, deaccessioning essentially equates to disposing of the core of a museum’s reason for existing in the first place.124
F. Deaccessioning and the Courts
One incident in particular may be seen as a turning point in the way deaccessioning practices are viewed. In 1972, the Metropolitan Museum of Art faced a backlash of criticism in response to a New York Times report that brought to light the museum’s decision to sell artwork from its permanent collection in order to finance a new acquisition.125 The museum had decided to purchase a Velazquez portrait of Juan de Pareja for a little over $5.5 million—a record for the sale of a single work of art at the time.126 While the acquisition was at first applauded by the media, it turned out that the Metropolitan had secretly sold a number of works from the collection of Adelaide de Groot.127 This led to a nearly yearlong investigation by the Attorney General, which ultimately resulted in the museum agreeing to notify the Attorney General whenever it planned to deaccession works worth over $5,000.128 In response, some critics went so far as to call for a total bar on the practice of deaccessioning.129 The event spurred greater public scrutiny of both the legal and ethical obligations of museum trustees, the effects of which continue to be felt to this day.130
Since the 1972 Metropolitan Museum of Art incident, a number of cases have arisen in response to museums deaccessioning art.131 In the 1980s, the Fogg Museum of Art’s publicized plan to deaccession artwork to close a budget deficit led to outcry and criticism.132 The AAMD issued a resolution denouncing the plan.133 Ultimately, the Fogg was able to raise enough funds without going through with the sale.134 However, the museum came very close to potentially removing a number of valuable works from its collection despite the public opposition.135 As with other deaccession plans, the incident raised the questions of accountability and enforceability.136
A more recent case similarly sparked an outcry of protest and criticism. Rockwell v. Trustees of Berkshire Museum centered on the Berkshire Museum’s planned sale of forty paintings and sculptures, including paintings by Norman Rockwell, as well as several other works by major American artists.137 The museum, located in Pittsfield, Massachusetts, intended to sell these works at Sotheby’s in New York in order to raise revenue for a major renovation of the museum.138 Essentially, the financially troubled museum decided to transform itself from an art museum to an interactive science center.139 Several parties brought suit against the museum, seeking to enjoin the sale from proceeding.140 The plaintiffs in the litigation included three children of Norman Rockwell, who were also beneficiaries of the Rockwell estate; several members of the museum; and an artist whose glass works were affixed to the museum building.141
The complaint asserted a breach of fiduciary duty, breach of trust and absence of authority, and breach of contract.142 The defendants included the trustees of the museum and Attorney General, Maura Healey.143 The Attorney General, initially a defendant, filed a motion to join as a plaintiff if the original plaintiffs lacked standing.144 The court granted the motion, finding that the original plaintiffs lacked standing.145 The Attorney General therefore sought a preliminary injunction on behalf of the Commonwealth of Massachusetts to prevent the sale from going through.146 The court ultimately found that although the Attorney General had standing to bring the suit, she failed to satisfy the requirements of a preliminary injunction.147 The court’s decision sparked significant disappointment among many members of the Pittsfield community, which throughout the litigation had expressed their desire to keep the paintings available for public enjoyment.148
The Sotheby’s auction took place in 2018.149 Although one of the Rockwell paintings was sold to a museum—albeit on the West Coast—the other most likely went to a private collector.150 This means that the work is no longer available for public viewing and might not be seen publicly for several generations.
Shortly after the auction, the AAMD voted to impose sanctions on the Berkshire Museum.151 In an official statement, the AAMD expressed its position that the sale of art for purposes other than collection care and management undermines the public’s trust in the institution.152 However, this statement may be described as “too little, too late.” Ultimately, the result feared by critics of the deaccessioning took place, in that certain pieces from the sale were lost to public viewership for the foreseeable future.153 Had there been legally enforceable standards in place, the museum’s planned deaccession of the art, while potentially less financially fruitful, may have led to greater public satisfaction.154 At the very least, legal standards should call for greater transparency in such situations.155
In 2007, the Albright-Knox Art Gallery in Buffalo, New York faced similar criticism when it decided to deaccession a number of antiquities from its permanent collection.156 One of the oldest public art institutions in the United States, the Albright-Knox chose to focus primarily on its modern and contemporary art collection.157 As a part of its mission to be at the forefront of this field, the board of directors unanimously voted to deaccession a number of ancient and pre-modern works from its collection in order to raise capital for the purchase of art more in line with its mission.158 These included over 100 Chinese, Indian, African, South American, and Roman works of art.159 As with the Berkshire Museum, the Albright-Knox’s plan inspired a furious debate on the propriety of the sale, which was planned to take place through a Sotheby’s auction.160 Carl Dennis, poet and recipient of the Pulitzer Prize,161 led the opposition to the plan and grieved the planned sale as a deviation from the museum’s historical ties and heritage.162
Opponents of the plan ultimately sought to enjoin the Sotheby’s sale from taking place. The petitioners, including Carl Dennis, among others, brought four main claims against the museum.163 First, they contended that the board of directors violated the museum’s by-laws and not-for-profit corporation laws164 by failing to notify ex officio directors of planned meetings to discuss the deaccessioning.165 Second, they argued that the deaccessioning plan was a deviation from the museum’s purpose of “maintaining a collection of painting, sculpture and other works of art and encouraging the advancement of education and cultivation of art.”166 Third, they claimed that the deaccession constituted a mismanagement of assets and was contrary to the intent of the museum’s donors.167 Fourth, they urged the court to use its “visitation” rights to protect the museum from mismanagement.168
The court ultimately denied the injunction.169 The court reasoned that even if the petitioners showed that they would be irreparably harmed by the sale of the deaccessioned artworks, they failed to demonstrate that their claims would succeed on the merits or that the balance of equities would fall in their favor.170 First, the court found that failure to notify ex officio directors of the planned meetings was harmless.171 Second, it found that in light of the broad scope of the museum’s purpose, the deaccessioning plan was not a violation of its stated mission to educate the public and care for the fine arts.172 Moreover, the court stated that the museum was free to change its mission as long as it did not venture outside of its corporate purpose.173 Third, the court held that the museum was free to sell donated or bequeathed property in the absence of specific restrictions on alienability.174 Finally, the court found that without evidence of illicit activities such as fraud, the court would not exercise its right to appoint a representative to “visit” the museum’s records.175
The Sotheby’s auction realized $71 million in net proceeds for the museum.176 In its annual report, the Albright-Knox boasted that the sale “more than quadrupled” the museum’s endowment, allowing it to remain at the forefront of the modern and contemporary art world.177 The report also included an acknowledgement of the controversy inspired by the deaccessioning.178 As with the case of the Berkshire Museum, legal guidelines encouraging greater transparency and accountability may have led to a more favorable outcome for the Buffalo community.
II. Analysis
The lack of legally enforceable standards governing museums’ deaccessioning practices leads to negative outcomes for all parties involved—including museums, museum patrons, members, and the communities that museums are intended to serve.179 Litigation rarely results in an outcome that is beneficial to the public, especially since it tends not to result in the relief plaintiffs seek.180 Moreover, every few years a museum’s controversial decision to deaccession art leads to public scrutiny, debate, and criticism, prompting the question of whether current guidelines are sufficient to protect the interests of the public that is meant to benefit from the museums in the first place.181
A. Proposing Legislation
The lack of clear judicial guidance on deaccessioning is not, at the moment, supplemented by state legislation in any meaningful way.182 Despite repeated proposals to regulate the deaccessioning practices of museums, only one such law currently exists.183 In 1996, New York passed a law requiring that any proceeds from the sale of deaccessioned artwork by the New York State Museum located in Albany be used either for new acquisitions or for the direct care of existing collections.184 However, this statute is not generally applicable to all museums in New York.185 In addition, museums chartered by the New York State Board of Regents are restricted to deaccessioning works from their collections only in one of ten situations.186 None of the enumerated justifications for deaccessioning in the Board of Regents’ rules include fundraising for operating costs or capital improvements.187
One state has passed legislation that encourages full disclosure in the deaccessioning process.188 In 1971, Wisconsin enacted an “anti-secrecy law” mandating that public institutions disclose transactions to the public.189 In particular, the law requires the directors of museums to account for transactions to an objective outside council.190 Although it encourages greater transparency, the law is imperfect as it stands.191 This is because the mandated reporting is done after the fact.192 Therefore, if a particular painting is deaccessioned and subsequently sold at auction, it might be impossible to return to the museum by the time the decision to deaccession is scrutinized.193
In 2010, the New York State legislature attempted to draft a bill to regulate the process of deaccessioning works of art and antiquities.194 Assemblyman Richard L. Brodsky spearheaded the proposal, along with the New York State Board of Regents and the Museum Association of New York.195 The bill would have banned museums from using proceeds from the sale of art to fund operating expenses.196 The discussion around the bill centered on a number of cases from the preceding decade, including the National Academy Museum’s 2008 sale of Hudson River School paintings to finance operating costs. Brodsky feared that the recession would lead to an epidemic of museums selling art into private hands to make up for budget deficits.197 Opponents of the bill argued that the proposed legislation was too broad, and some proposed carving out an exception.198 Brodsky, however, believed in an all-or-nothing approach.199
Ultimately, the bill proposing to ban museums from using proceeds from the sale of deaccessioned art did not pass.200 While the attempt to regulate deaccessioning should likely be done on a state level, this particular proposal was in all probability—as critics argued—too broad.201 Faced with the choice of closing its doors forever or selling works of art, more than one museum has already historically proven that it would prefer the latter.202 To be tenable, therefore, any legislation concerning deaccessioning should be practical enough to allow museums to protect themselves in times of financial turmoil while balancing the desires of the community to retain works of art accessible to the public.
B. The Problem with Standing
The lack of judicial and legislative guidance are not the only problems plaguing the deaccessioning question. Litigation alone has historically proven to be an insufficient mechanism to protect community interests and ensure that certain works of art do not disappear into private hands.203 First, interested parties are often prevented from being able to legally enforce ethical guidelines governing deaccessioning practices because of standing issues, as in the Berkshire Museum case.204 There, the court held that neither the children of Norman Rockwell nor the members or donors of the museum, or even an artist whose work was in the collection of the museum, had standing to sue.205 Second, while attorneys general—often the only parties who have standing in such cases—have paid increasing attention to issues concerning the deaccessioning of museum collections, they cannot be solely relied on to remedy the problem.206 Notably, while the Attorney General in the Berkshire case did join in the litigation after the other plaintiffs were determined not to have standing, ultimately, this did not save the Rockwells from sale.207 One major pitfall in that case was that the Attorney General was seen as entering the case only after mounting pressure from the public.208 Her seeming reluctance to bring the suit signaled to the court that the problem flagged by the original plaintiffs was not sufficiently grave to warrant a finding in their favor.209
Therefore, because of standing issues, the threat of litigation is insufficient insurance to provide oversight for a museum’s decisions in deaccessioning cases. A possible solution could be to expand standing.210 However, such proposals are typically opposed by museums due to fears of harassing and unfounded suits.211 Such a fear may be overstated.212 In 1945, Wisconsin enacted a statute allowing “any 10 or more interested parties” to bring suit without the involvement of the Attorney General.213 There is no evidence to suggest that Wisconsin charities have suffered as a result.214
There are three potential strategies to counter museums’ fears against harassing litigation.215 The first is to limit standing to parties that have proved themselves to be genuinely interested in the welfare of the museum, such as those who are members of groups that support museums for at least a few years.216 In the Berkshire Museum case, this would have ensured that the plaintiffs had standing, since the museum members, donors, Rockwell children, and the artist whose work was held in the museum’s collection had proven ties to the museum and its welfare.217
The second possibility is to ensure that plaintiffs in such cases do not stand to personally gain from such litigation by limiting possible remedies,218 presumably only to those that would affect the institution itself.219 Again using the example of the Berkshire Museum, this would have meant that the plaintiffs would not have been entitled to monetary damages had the case been decided in their favor.220 The remedy would have been limited to injunctive relief to prevent the Sotheby’s auction from taking place.221
The third possible and more problematic solution is to allocate fees to discourage frivolous litigation, possibly by requiring potential plaintiffs to post securities.222 This is the least preferable option, as it would essentially limit standing to those plaintiffs who had the financial means to pay for fees up front.223 This is particularly problematic in the community context, since it would do more to discourage individuals such as museum members—who might be of limited financial means—from bringing suits than to protect art from being deaccessioned. Nevertheless, if this possibility could overcome museum opposition to the expansion of standing, it could still be tenable.224 In the Berkshire Museum case, for example, this could have meant that museum donors, but not museum members, had standing.225
C. Deaccessioning: The European Model
In contrast to the United States, where deaccessioning is governed primarily by ethical considerations, there are two primary schools of thought on deaccessioning laws in Europe.226 A recent study conducted on deaccessioning refers to the two movements as the Latin and Anglo-Saxon traditions.227 Southern European countries, including Spain, Italy, Greece, Romania, and France represent the Latin tradition, while northwestern European countries, including the United Kingdom and the Netherlands adhere to the Anglo-Saxon tradition.228 The European Union itself does not regulate deaccessioning practices, leaving legislation to individual member states.229 Meanwhile, the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the International Council of Museums (ICOM) provide guidance.230 The ICOM in particular dedicates a significant portion of its code of ethics to the practice of deaccessioning.231 The guidelines emphasize the importance of accurately documenting and describing the need for deaccessioning of any particular object and state that the proceeds from the sale of art should be used only for the benefit of the museum’s collection.232
Although the specifics of the legislation differ among states in the European Union, there is a general recognition that art is unlike other commodities and therefore deserving of legal protection.233 Certain states, such as Italy, Spain, France, and Greece, have gone so far as to enact legislation upholding the principle that cultural property is inalienable.234 UNESCO and the ICOM guidelines also suggest that works should only be deaccessioned in specific circumstances and with significant transparency.235
Spain, Italy, France, and Romania have some of the strictest laws on deaccessioning.236 Legislation in these states is governed by the principle that once a work of art enters the collection of a museum, it loses its status as an alienable object.237 Exceptions are made only after approval from a higher body, such as a national government.238 Strict deaccessioning laws such as these would be impractical in the United States. First, restrictions on sales of property are problematic in the domestic context, where free alienation is considered a bedrock principle.239 Second, American museums are typically privately managed.240 Thus, involvement from local governments to this extent would be unrealistic. Museums would staunchly oppose extensive governmental oversight as an imposition on their ability to manage their collections and their finances. Deaccessioning is often a vital aspect of collection management.241 Completely banning museums from selling any works at all would significantly hinder their abilities to remain up-to-date and financially viable.242
In other European states, the approach to deaccessioning offers some potential for flexibility.243 Only objects that have a designated protected status are considered immune from deaccessioning.244 For example, in Greece, objects are classified based on historical periods, with certain objects considered to be of greater importance to the national heritage than others.245 Works of art dating to before 1830 are considered inalienable, while more recent pieces may be deaccessioned if deemed appropriate by the relevant supervisory bodies.246 While this approach is more flexible than that of countries such as Spain and Italy, it would still be problematic in the United States. Simply categorizing objects based on their historical origin would do little to assuage the problems that museums face when maintaining their collections.247 For example, a museum that is expressly dedicated to contemporary art would not survive for long if it could not sell art dating to a certain time period.248 Such a museum’s collection would run the risk of becoming outdated very quickly, thus threatening the museum’s survival.249
European states with an even more flexible approach to deaccessioning employ a “two-level” protection system.250 Such states include Austria, Denmark, Finland, Germany, Ireland, Luxembourg, the Netherlands, Poland, Slovakia, and the United Kingdom.251 Works of art are classified into two primary categories: those that are considered to be of particular cultural value to the nation are protected by legislation on deaccessioning, while other objects do not receive such protection.252 Similarly, the region of Flanders in Belgium distinguishes between regular objects and those that are “rare, indispensable, [or have] a special value for collective memory, including the function as a clear reminder, among other things, of persons, institutions, events or traditions that are important for the culture, history or science of Flanders.”253
This latter approach holds the most promise in the domestic context. In the United States, this would mean that museum collections would be classified according to community and cultural importance. The Berkshire Museum is one obvious example.254 There, the Norman Rockwell paintings had particular significance to the Berkshire community because of Rockwell’s ties to Berkshire County and the fact that Rockwell personally donated the works to the museum.255 Therefore, the Rockwells could have been designated as objects of particular value to the Berkshire community.256 This would have meant that the Rockwell paintings would have been protected from sale, while other works—potentially of lesser significance to the community—could still have been a source of profit for the museum.257
The approach of categorizing works in a museum’s collection based on cultural significance is not without obstacles. First, it would involve substantial efforts on the part of museum staff to review and categorize their collections. This is not an insignificant obstacle, given the sheer volume of works that museums often hold. Second, this approach raises the question of how cultural significance would be established. In order to best represent the interests of the community, it could mean involving museum patrons. This raises the practical impediment of how to involve a potentially vast number of people in the decision-making process. For example, nearly 7.4 million people visited the three Metropolitan Museum of Art institutions in New York in 2018.258 It would be difficult to involve such an enormous number of people in the classification of a collection spanning two million square feet.259
Nevertheless, these obstacles are not insurmountable. While classifying works based on cultural significance would be a lengthy and labor-intensive process, contemporary collection management systems may be advanced enough to ensure that this process could still be done efficiently.260 Moreover, the idea of adequately representing the interests of the millions of individuals who patronize museums, as in the case of the Metropolitan, might be intimidating but not impossible. In such cases, art historians might be the better situated parties to make such determinations. In other cases, community input might be more practical. With the Berkshire Museum, for example, which operates on a much smaller scale and is more intimately tied to the community than the Metropolitan Museum of Art, involvement from Berkshire County residents would be more realistic.261
III. Proposal
The current mechanisms in place to govern deaccessioning, including ethical guidelines, fiduciary duties of museums, and interested parties’ recourse in the courts do not provide adequate remedies to ensure that museums handle their collections in a way that is satisfying for the public.262 To date, attempts to enact legislation to govern deaccessioning have been insufficient.263 The public’s continued discontent with a museum’s ability to remove a community’s most cherished works from its collection—as was the case with the Rockwells at the Berkshire museum—shows that there is a need for a legislative model that will balance the public’s interest in preserving art for ongoing viewership with a museum’s need to remain financially viable.264 Such a model would need to be both flexible and realistic. In other words, simply banning all deaccessioning for purposes other than direct collection management—as the Brodsky bill attempted to do—is unlikely to garner sufficient support.265
As an alternative to legislation specific to deaccessioning, standing could be expanded in order to allow interested parties, such as the plaintiffs in the Berkshire Museum case, to challenge a museum’s plans to deaccession art.266 However, given museums’ ongoing opposition to proposals to expand standing, adopting the most flexible of the European deaccessioning legislation models is the most tenable option.267
As the failure of the overly broad Brodsky bill demonstrates, the strictest European deaccessioning laws would not be practical domestically.268 Laws such as those enacted in Italy, Spain, France, and Greece, which support an inalienable theory of cultural property, should not serve as a model.269 Instead, the two-level approach of countries such as Austria, Denmark, Finland, Germany, Ireland, Luxembourg, the Netherlands, Poland, Slovakia, and the United Kingdom should be considered.270
Works should be classified in terms of cultural significance. For example, certain works, such as the Rockwells formerly owned by the Berkshire Museum, could be classified as necessitating particular protections.271 Then states could mandate that such objects, even if deaccessioned, must remain available for public viewership.272 Had such a law been in place in Massachusetts, this could have ensured that the art was not at risk of privatization.273 Meanwhile, other works—such as those kept by museums but not displayed—could continue to be deaccessioned without restrictions.274 This flexible approach would balance the need of museums to raise funding when necessary while ensuring that culturally significant artwork does not disappear from public view.
Conclusion
Museums that deaccession major works of art face harsh criticism and intense scrutiny from the public and the art world alike, as demonstrated yet again during the past year as a result of pandemic-related financial pressures faced by museums.275 The mechanisms that currently exist to ensure that museums comply with ethical obligations and fiduciary duties are insufficient to enforce deaccession practices that lead to satisfying results. Similarly, recourse to the courts does not provide for an adequate remedy due to the difficulty of establishing standing for interested parties. Legislative guidance is therefore needed in order to establish enforceable provisions for deaccession practices. Transparency, oversight, and accountability are some of the factors that would improve this process. While the history and structure of American museums do not make a total ban on alienability of cultural property belonging to museums practical, the most flexible of the European deaccessioning models would be successful in the United States. Legislation requiring museums to classify objects based on cultural and community significance would balance the interests of communities in maintaining access to such works with the needs of museums to manage their collections by deaccessioning other works of art in order to raise funds and keep their collections current.