Columbia Law School Event Explores the Legal & Ethical Dilemmas of Deaccessioning as DIA Bankruptcy Pushes the Envelope on Deaccession Debate

By Hanoch Sheps, J.D.*

On October 28, 2013, Columbia Law School’s Kernochan Center for Law, Media and the Arts hosted “Selling the Museum’s Collection: Is Deaccessioning Ever Appropriate,” with Roberta Smith, Donn Zaretsky, Pippa Loengard, and Nicholas O’Donnell. The panelists discussed the ethical dilemmas posed by the bankruptcy of Detroit vis-a-vis the Detroit Institute of Arts (DIA), an organization owned by the city of Detroit which itself faces significant financial pressures. (See our report on DIA, “Selling the Detroit Institute of Art Collection… What’s the Big Deal?”).  Needless to say, this panel discussion only skimmed the tip of the iceberg of a very charged ethical debate raging in the legal and cultural circles.

Summarizing the debate years in the making, ‘deaccessioning’ art works involves the process of permanently removing objects from a museum’s collection. Often times these removals are the result of monetary constraints, but the crux of the ethical dilemma beyond the initial disposition is the use of sale proceeds for “operating expenses” (an ambiguous term in its own right). Is it worth paying to keep the lights on in the museum when you sell the collection to do so?

One of the guest speakers at Columbia, Mr. O’Donnell, a partner at Sullivan & Worcester LLP, and an author of The Art Report blog, considered the legal minefield and bureaucratic red tape involved in the deaccession process. For example, the Association of Art Museum Directors (AAMD) established guidelines for one of the largest remaining unregulated sectors in the global economy. The AAMD Policy on Deaccessioning clearly states that deaccessioning may only be done to improve the collection and to further the museum’s long-term curatorial goals. But the most important aspect of the AAMD policy is that sale proceeds may only be used to acquire new art, and not to pay operating expenses. Mr. O’Donnell pointed out that if an AAMD member museum fails to comply with this policy, the AAMD may censure, suspend, or even expel that member organization. Practically speaking, the immediate effect of non-compliance may be “blacklisting”, the consequences of which may result in museums and donors declining to lend, loan or collaborate with that museum for period of time.

Another guest speaker, Roberta Smith of The New York Times, also addressed cultural preservation considerations. As a long-time art critic for The Times, Smith delivered an impassioned plea for the protection of art collections and reminded the audience members that museums are stewards of culture for past, present and future generations. The mere thought of deaccessioning, she expressed, was a violation of the “public trust” (in the colloquial sense, not the legal). Although not all cases of deaccessioning have a negative result, there is too much uncertainty and risk that a work of art, or far worse, a collection, may be lost to the public and fall into private hands. Smith submitted that the “capital-centric society” in the United States has a limited notion of what art does for culture, and that “if the Louvre tried to monetize the Mona Lisa – there’d be riots in the streets!”

Moderators Donn Zaretsky of John Silberman Associates PC, and Pippa Loengard, Assistant Director of the Kernochan Center, also fielded questions from the audience curious about the value of updating the AAMD deaccession policy to conform to varying contemporary scenarios. (Donn Zaretsky is also the author of The Art Law Blog, hosted by John Silberman Associates.). Although the applicable AAMD policy appears black and white, claimed one audience member, is it adequate when considering that not all situations in which deaccessioning arises are similar? Essentially, is it appropriate for the AAMD to equate museums shoring up budget gaps and DIA which faces bankruptcy?

Thanks to Columbia for hosting this lively debate. For further coverage, consider the recent discussion held by the International Foundation for Art Research (IFAR), “Art for Sale? Bankruptcy and the Detroit Institute of Arts,” which hosted both the current and former DIA directors and their legal advisor. 

Sources: AAMD Policy on Deaccessioning

*About the Author

Hanoch Sheps, J.D. is a recent graduate of New York Law School. He may be reached at Hanoch.sheps2@gmail.com.

Disclaimer

This and all articles are intended as general information, not legal advice, and offer no substitute for seeking representation.

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