Bring Me the Head of King David: Questions of Attribution and the Responsibility of Museums

By Center for Art Law Team*

Art forgery has long been a siren of the art world. Dark yet beguiling, it ranges from misidentification of orphaned works to forgers deliberately passing off fakes on the market. Some forgeries gain notoriety because they contain all the elements of  catch-me-if-you-can intrigue: outsmarting experts, creating intricate webs of deception, evading discovery, collecting a hefty prize. Other forgeries endure in perpetual obscurity, only caught years or decades after the fact (if at all). This spring the Center for Art Law hosted an evening on the topic, screening Orson Welles’ F for Fake and featuring Aaron Crowell’s remarks about root causes for transactions involving fakes. Though forgery implicates all spheres of the art economy, its effect on reputations and credibility is particularly noteworthy in the context of museums’ roles in the public and educational sectors.

As part of a series of seminars given at the Metropolitan Museum of Art in 1967, director Thomas P. F. Hoving stated that taking fakes and their detection seriously is a key part of the Museum’s educational obligations. But he also quoted art historian Max Friedländer’s qualifying statement that, while it is an error to collect a fake, it is as much “a sin to stamp a genuine piece with the seal of falsehood”. In his 1996 book on art forgery, False Impressions, Hoving also suggested that the entire art market was 40 percent forgeries. More recently, the art critic Michael Glover estimates that at least 20 percent of paintings held by major museums will be attributed to a different painter by the end of the 21st century. It is unsurprising, then, that at times misattribution in museums would be inevitable. The key questions are: how should museums treat the subject of attribution and respond to allegations of forgery? What responsibilities do curators have to the members of the public? And what actions can museums take to prevent or uncover forgeries in their collections?

What are Museums’ Legal and Ethical Responsibilities?

There are no explicit regulations regarding museums’ obligations to investigate and disclose purported fakes. Ultimately, the art market polices itself and curators and museum administrators have their boards of directors to report to and codes of ethics to uphold. However, these codes sparsely mention fakes and forgeries.

The American Alliance of Museum’s (“AAM”) Code of Ethics expresses the common tenet that museums are stewards of the world’s natural and cultural common property, holding their collections for the benefit of the public. It does not mention fakes or forgeries, but exhibiting and acquiring such items unawares conceivably threatens the core mission by taking resources away from genuine artifacts. Interestingly, the American Association of Art Museum Curators’ ethical guide, the Professional Practices for Art Museum Curators, and the American Association of Art Museum Directors’ Code of Ethics, also overlook issues of fakes and forgeries. The exception to this is the American Association of Art Museum Directors’ Professional Practices in Art Museums, but forgery is mentioned just once, merely as a potential reason to deaccession an art object. Given the recent interest in fakes and forgeries as a cultural phenomenon, museums have been collecting and exhibiting fakes for their unique albeit detrimental effect on the art history canon.

Regarding faked antiquities, the American Association of Museums announced in 2008 “New Standards on Collecting of Archaeological Material and Ancient Art”, which advocated reference to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property. The section on existing collections stipulated that, in the interests of public trust, research and accountability, museums should “make available the known ownership history of archeological material and ancient art in their collections, and make serious efforts to allocate time and funding to conduct research on objects where provenance is incomplete or uncertain.”

The antiquities trade is susceptible to forgeries, as writes Leila A. Amineddoleh, an art lawyer specializing in art and cultural heritage law, and an adjunct professor at Fordham University School of Law. This susceptibility comes down to trade in unprovenanced antiquities being driven by demand, including from within the black market. For example, a large number of purported Coptic sculptures from the late fourth century in Egypt entered the international art market in the 1960s, at a time when Coptic art was not widely understood by scholars, yet was popular with collectors. Recently, historians have concluded that most of them – including a considerable collection within the Brooklyn Museum – are fake, thereby distorting our understanding of Christian iconography in ancient Egyptian art. Accountability for museums, most of which are privately owned in the US, seems to come more from public pressure and bad press. In 2009, The Brooklyn Museum responded to these unflattering allegations by planning an entire exhibition dedicated to the forgeries. Some scholars, such as the art crime professor Noah Charney, have noted that museums may only assume moderate shame in acquiring forgeries.  

Another explanation for the lack of rigid rules in this area is Hoving’s idea that it is anathema for an expert to dub an authentic work as fake. This opinion appears to be shared throughout his field. In a 2011 publication, Professor Andrew Stewart of the University of California posits that the “sin” of accusing a genuine antiquity as fake is “much more heinous” than authenticating a forgery). According to Stewart, such can be associated with a rush to judgment and the imposition of one’s own ego on the object. According to Sharon Flescher, the Director of the International Foundation of Art Research (IFAR), art attributions can and do shift over time. In her essay on IFAR in Ronald D. Spencer’s 2004 book, The Expert versus the Object: Judging Fakes and False Attributions in the Visual Arts, Flescher argues that scholars should not be encumbered by threats of litigation or pressure from the art market to make such determinations.

A Tale of Two Heads

Screen Shot 2017-06-21 at 12.02.37 PMImage: the Metropolitan Museum of Art’s Head of King David, #38.180, whose authentication is questioned by Robert Walsh. The Met’s website gives the following data: c. 1145, made in Paris, fine-grained limestone, 33lb.

In 2012, Robert Walsh, a New York antiques dealer, purchased a limestone head at a Greenwich Village antiques store, believing it to be a sleeper. (A sleeper is an orphaned artifact which may become attributed to a known and famous creator.) Walsh learned that that the Metropolitan Museum of Art was exhibiting a similar head, apparently originating from the Cathedral de Notre-Dame, and began investigating. Where did Met acquire its sculpture, and what did the two pieces have in common? These questions led Walsh down a twisting, years-long road of research.

The Met describes its sculpture as a head of King David, originating from the St. Anne portal of the west facade of the Cathedral de Notre-Dame in Paris. The portals contained monumental sculptures of each of the Kings of Judah, which were decapitated and presumably destroyed in the political fervor of the French Revolution.

Walsh researched both pieces using scientific analysis, provenance and stylistic research, and theorized that the Met was exhibiting a 1920s copy of his own authentic sculpture. He concluded that neither sculpture originated from the Cathedral de Notre-Dame, but that his was a French antique, and that there were some inconsistencies in the Met sculpture’s provenance. The Met sculpture was sold by a French art dealer, Georges Demotte, who was active in the 1920s and 1930s and who is believed to have sold forgeries to museums. Demotte’s original catalogue listing of the piece for his New York gallery in 1930 contained no mention of either Notre-Dame or King David. Instead, the sculpture was said to have been discovered in St. Germain de Pres, which is located further down the River Seine. Walsh believes that the author of the Met’s work is Emile Boutron, an accomplished conservator and forger employed by Georges Demotte.

Allegedly, these findings were shared with Met’s Medieval Department in 2012, but the curators were unconvinced that their King David was inauthentic. Walsh later contacted the Louvre, which had purchased a very similar sculptural head, also from the controversial Demotte New York Gallery, in 1934. According to Walsh, the Louvre removed the sculpture from public display. 

In 2014, Walsh, through his company Latipac, Inc. (now dissolved), served a Summons with Notice on the Met, apparently seeking to preclude the Met from challenging the authenticity of Walsh’s sculpture. Other threatened causes of action, which did not manifest in court action, were breach of the museum’s Collection Management Policy (on a theory that Latipac is its intended third-party beneficiary), as well as a series of tortious actions, including defamation, interference with prospective economic relations, injurious falsehood and product disparagement.

In October 2014, both sculptures were reportedly drilled and tested at the Met by an expert in French limestone from the the Limestone Sculpture Provenance Project at the University of Missouri at St. Louis. The test results revealed that Walsh’s sculpture consists of Burgundian limestone, whereas the Met sculpture was sculpted from Paris Lutetian limestone.

The Subtle Art of Authentication

In an effort to curb fakes and forgeries in the art market and in museum collections, three general methods of authentication have emerged.

1. Provenance Research:

Provenance is the record of the ownership or chain of title of a work of art or antique. Works with clear, substantiated and complete provenances are naturally of a higher financial value, based on risk and return. (For more on this, see Gail Feigenbaum and Inge Jackson Reist’s 2012 book “Provenance: An Alternate History of Art” and Art Watch UK’s upcoming publication detailing the proceedings of its 2015 London conference “Art, Law and Crises of Connoisseurship”). Works with questionable or incomplete provenances, such as the Met’s sculpture, will often lead an authenticator to research further the object’s history and affiliation with suspicious characters appearing within the chain of title.

The circumstances of the Met’s acquisition of its sculpture are noteworthy. According to Walsh, James Rorimer, one of the Monuments Men and 1930s curator for medieval art at the Met, oversaw the 1937 acquisition of the Met sculpture from the renowned dealer Arnold Seligmann for $2,500. Apparently, Seligmann had purchased it from Demotte’s New York Gallery in 1934. The 1930 Demotte Gallery Sculpted Portraits exhibition catalogue listed it as “Head #9, Crowned King’s Head”, and claimed it was excavated from St. Germain de Pres. Also in the Sculpted Portraits catalogue was an entry for “Head #10”, which the Louvre acquired from Demotte in 1934. Whether Rorimer believed Head #9 to be real or not, he clearly believed it to be worth acquiring for the museum. The Met’s sculpture was not included in the 1970 medieval sculpture catalogue, The Year 1200: A Centennial Exhibition at the Metropolitan Museum of Art, where over 50 stone sculptures – including a series of heads – were showcased together with medieval mosaics, coins, stained glass, frescoes and other artefacts.

2. Scientific data

Business of authenticating is a risky proposition. Increasingly, scientific expertise and methods are used for testing of different artifacts depending on the age and materials of the piece. Testing methods may include elemental analysis, microspectroscopy, molecular analysis, carbon-dating, pigment analysis, x-ray fluorescence, and even fingerprint testing. The most common indicator that a work of art is forged is the detection of materials  on the work which were not manufactured or used until after the work’s purported era. Orion Analytical, a private lab which was purchased by Sotheby’s in 2016, was one of the most highly regarded art analysis companies in the United States, as it combined scientific testing with connoisseurship. Sotheby’s cited the use of modern materials in an alleged old master work as grounds for revoking a private sale and seeking reimbursement from the broker in a recently filed lawsuit regarding an £8.4 million Frans Hals painting which turned out to be a forgery.  

Similarly, the famous forger Wolfgang Beltracchi, who was convicted in 2011 and released from prison in 2015 after he and his wife sold hundreds of fake works attributed to Pablo Picasso, Fernard Léger, Max Ernst and others, was ultimately exposed through forensic analysis. Dr. Nicholas Eastaugh tested the pigments of a painting the Beltracchis claimed to be by the Dutch artist Heinrich Campendonk, and uncovered titanium white, which did not exist in 1915 when the work was supposedly painted.

The forensic testing of Walsh and the Met’s sculptures, done by the University of Missouri’s limestone experts as part of the settlement agreement, assisted with identifying the source of the material used, but fell short of providing the date of creation to the objects. Although  scientific analysis may be helpful in determining whether an object is fake, it is unable to confirm an object’s authenticity without the stylistic knowledge of a connoisseur.

3. Connoisseurship 

The least precise and most subjective form of authentication is connoisseurship, or expert aesthetic judgment. It relies upon an expert’s training, expertise, and – more often than not – gut instincts. Expert opinions are heavily relied upon by dealers, auction houses and museums. Connoisseurship is at once heavily subject to corruption, and powerful enough to hold sway in court.

Connoisseurs have been known to be fooled by highly skilled forgers. Last year’s Knoedler trial revealed how a single artist could paint, from his garage in Queens, a raft of fake de Koonings, Rothkos, Pollocks and other masterpieces, which would pass muster with some of the most prominent experts and gallerists. Similarly, Wolfgang Beltracchi duped scholars, museums, auction houses, gallerists, and even Max Ernst’s widow, with his numerous forgeries. In a recent documentary on Beltracchi, he brags that his forged Vermeers, Rembrandts and Leonardos are currently in circulation, and that Leonardo da Vinci’s work is “not difficult” to copy.

Walsh relied on his own connoisseurship and his belief that he uncovered in the Greenwich village antiques store a valuable and probably medieval find. According to him, experts in Paris with deep knowledge of the facades of the Cathedral de Notre-Dame were adamant that such a sculpture did not match the Cathedral’s sculptural program.

The Object v. the World: Curatorial Sins

Museum directors, experienced or non, may be faced with claims and possibilities of having fakes in their collections. For the Expert versus the Object: Judging Fakes and False Attributions in the Visual Arts, attorney Ronald D. Spencer conducted an interview with the former director of the Frick Museum, Samuel Sachs II. According to Sachs, museums should be ready to purchase high-quality and interesting work even if there are ongoing authentication disputes: “Ultimately, aesthetic quality holds sway even over matters of attribution or authenticity. Museums can hang a picture that is absolutely, certifiably by artist X, but if it is a weak picture, why do it?”.

It appears that encyclopedic art museums, including the Met, abide by this rule of thumb. Another rule of thumb: shock or disbelief should come not from having acquired a forgery but from inaction when flags are raised about authenticity. And such flags are raised regularly for most museums. One of the most notorious art hoaxes of the 20th century involves the Met’s acquisition of three “Etruscan” terracotta warriors from 1915 – 1921. Following their exhibition in 1933, scholars began to suspect, on grounds of connoisseurship, that the statues were anachronistic to the Etruscan style. The statues were finally scientifically tested in 1960, and their glazes revealed the presence of manganese, a mineral uncharacteristic to Etruscan sculpture. Months later, the sculptor Alfredo Fioravanti signed an affidavit confessing that the statues were forged. Brothers Pio and Alfonso Ricardi had fabricated them for the dealer Domenico Fuschini. In 1961, the Met accepted that the works were inauthentic.

The Metropolitan Museum of Art announced yesterday that, as a result of recently completed studies, its three “Etruscan” terracotta statues must be considered of doubtful authenticity. For some years there have been conflicting claims about these statues on stylistic grounds. Recently the staff of the Museum began a series of modern scientific and technical analyses. These developed convincing proof that these famous statues were not made in ancient times.

~ Feb. 14, 1961 Press Release

Critics of the Etruscan misattribution point out the Met’s lackluster investigations and ignorance of many “red flags” during the 30 years of their exhibition. Hoving would later go on to suggest that Gisela Richter, the Greek and Roman curator who acquired the pieces for the Met, was likely taken in by “pride” and “curatorial greed”.

Pride, greed, sloth, wrath… these art market sins allow forgeries to penetrate and pollute collections. However, hiding the existence of embarrassing yet known forgeries directly undermines museums’ obligations to expose and educate the general public about its cultural history – a responsibility espoused by the AAM in its various policy documents. It is safe to say that museums should, as organizations of public trust, act impartially and employ third party experts to investigate such claims, working collegially with individuals who present sound theories that a work’s authenticity is questionable. After all, forgers can be incredibly skillful, and even the most renowned connoisseurs can be duped.

A biblical character, King David was known to have been righteous and effective in administering justice. The dispute over his representation and the motives behind the actions of various private and public players, if nothing else, may help provide a measure of justice to the subject of due diligence in authentication. And that’s something worth losing your head over.

List of Sources

Disclaimer: This article is intended for educational purposes only and is not meant to provide legal or business advice.

Broad or narrow: Taxman reviews “Private” Museums

By David Honig, Esq.*

screen-shot-2016-11-23-at-1-48-18-pmLast year, on November 20, 2015, Senator Orrin Hatch (R-Utah) launched a review of eleven US private museums in response to a recent New York Times Article that exposes a possibility for abuse of 501(c)(3) nonprofit status. Every “domestic or foreign organization described in section 501(c)(3)” is considered a private foundation, unless it fits into one of four scenarios, dealing with where the organizations “support” is derived, set out in § 509(a).  Senator Hatch’s investigation did not include all nongovernment owned museums as the term “private museum” suggests – after all many of the most renowned museums in the United States, such as the Metropolitan Museum of Art in New York and the National Gallery of Art in Chicago are private museums even if they are not thought of as such. Instead, Senator Hatch looked into a subset of museums that only have one donor and are designated private foundation under 26 U.S.C. § 509.

The investigation, which concluded in May of 2016, sought to determine whether, and how much, these museums benefit the public. This inquiry was ignited by the fear that these private foundation museums are offering minimal benefit to the public while affording the donors substantial benefits including tax deductions. For example, the New York Times article mentions that at least two of these museums, Glenstone in Potomac, MD and the Brant Foundation Art Study Center in Greenwich, CT, require reservations and “[are] open only a few days a week to small groups.” The reason this matters is the tax advantages afforded to charities with 501(c)(3) nonprofit status are granted because of the public benefit these organizations provide. Logic suggests, if these museums are not providing a public benefit they should not be given preferential treatment. The real issue is not whether these museums provide a public benefit but whether the benefit provided can justify the private reward. In other words, should individuals capable of purchasing multi-million dollar artworks be afforded a discount on creating and maintaining private viewing salons?  Before determining whether these museums provide enough or any public benefit some background should be given, first on the museums themselves then on the tax benefits associated with this setup.

Screen Shot 2016-11-23 at 1.50.14 PM.png  

The Private Museums

The United States has a long history of encouraging private enterprise. This can be seen in airlines, railroads, institutions of higher education and charitable organizations. The investment of private capital helps alleviate some of the financial strain felt by the state, while encouraging private organizations or individuals to provide public services. Seeking to reward private investment for the public good, “Congress sought to provide tax benefits to charitable organizations, to encourage the development of private institutions that serve a useful public purpose or supplement or take the place of public institutions of the same kind.”

One way Congress provided tax benefits to charitable organizations was by creating 26 U.S.C. § 501. Section 501(a) grants tax exempt status to certain organizations. Relevant here are corporations “organized and operated exclusively for … charitable … or educational purposes … ”. Seeking to take advantage of this section of the internal revenue code collectors have created organizations and donated artworks to them in order to establish museums for their private collections.

The Tax Scheme

One benefit of creating a nonprofit organization and donating artworks to it is clear – if the museum charges an entry fee the revenues can be used to maintain the artworks and space without the donor having to pay taxes. By relinquishing ownership of these works the donor no longer bears sole responsibility for upkeep. Since 9 of the 11 museums surveyed by Senator Hatch do not charge an admission fee, most of the founding donors have to donate more funds to insure the works and premises do not deteriorate. On its face, the free admission scheme is detrimental to the founding donor. In addition to paying for the upkeep, although possibly at a subsidized rate, the founding donor must also relinquish control of the works to the nonprofit corporation for the corporation to be eligible for the tax benefits under the internal revenue code.

Taking these issues in turn, the first, having to pay for upkeep, could actually be a benefit. The internal revenue code, specifically section 170, allows a donor to deduct a “contribution or gift” made to, among other organizations, corporations that qualify for 501(c)(3) tax exempt status. This means that besides possibly paying a reduced rate for the upkeep and maintenance of her art and a facility to house said art, the founding donor can deduct the amount donated to the museum to cover these costs.

In addition to allowing deductions for contributions section 170 also allows a donor to deduct gifts made to authorized organizations. By converting a collection that was privately owned by an individual into one that is held by a museum for the “public’s benefit” the founding donor can use money that would have been personally spent for upkeep of the art to reduce her taxes. By combining tax exempt status granted by 501 with the deductions afforded for charitable contributions in section 170 a founding donor is duly rewarded. Note: the internal revenue code places a limit, usually 50% of gross income, on the amount of deductions a person can take each year for charitable donations.

Tax deductions are not the only reason for a founding donor to entertain creating this type of organization. Once the works are donated the museum owns them and a donor no longer has no control, or so it would seem. If the donor serves on the board of directors, acts as president or serves in some other executive position the donor could execute control over the works of art. In fact, this is exactly what “many” of the founding donors are doing. An example of this is the Broad in downtown Los Angeles, whose founders Eli and Edythe Broad serve on the Board of Governors.

A donor that serves on the board or as an executive will be involved in not only how the artwork is managed but more importantly the operations of the museum. This includes determining hours of operations, admission price, what works should be bought and sold, displayed, put into storage or on loan. It is easy to see why Senator Hatch was worried about abuse of these tax exemptions since donors are able to reap huge tax benefits while seemingly giving up little in their enjoyment and control of art. In fact, some of the museums surveyed said that they are located on land owned by or partially by the founding donor. In other instances, museums are located on land adjacent to the donor’s residence. In order for this scheme to make sense and continue the public must get some benefit.

Public Benefits

“[C]harities [are] to be given preferential treatment because they provide a benefit to society.” It follows, that if there is no benefit to the public then the charity should not be given preferential treatment and a donor should not be allowed to receive tax deductions for donations to that charity. But the issue here is not one of existence of benefit it is one of degree of quality and quantity of benefit. The question ultimately boils down to whether or not these museums provide enough public benefit to be given preferential treatment and how is that determination made. In other words, what is the required level of public benefit that an organization must produce in order to receive preferential tax treatment under section 501 and how is it determined?

Unfortunately, it is hard to determine whether action actually benefits the public and the Internal Revenue Service (“IRS”) guidelines are not very helpful on this front. Besides being open to the public for viewing and informing the public of access, it really is not clear what is required of an organization to achieve tax exempt status.

There are clear benefits to founders of private museums but the question remains are those benefits enough. For instance, of the 11 museums that received a letter from Senator Hatch 10 of them responded that they engage in or have engaged in loan programs. This means that a work of art that would normally be displayed in someone’s home or sit in storage was put on display for a large number of people to see. The creation of more museums allows works to be displayed that otherwise would sit in a basement or storage facility and never be seen by the public.  

Not only does the creation of more museums allow for more work to be shown it allows different work to be shown and curated in different ways. Private museums allow the whims of one person to dictate how and what art is acquired and later displayed. This type of museum does not have to focus on what it thinks would be the most educational exhibit for its visitors as traditional public museums do. Instead the exhibits can focus on art or whatever emotion or reaction a curator wants to provoke. This too is “educational” in its own right even though it is not designed with that purpose in mind.

Maybe the best example of this would be Eli and Edythe Broad’s Broad Museum in Los Angeles, California. The Broad is the poster child for what these types of private museums can be. It is open most days of the week and draws large crowds of young people. In addition to its visitors having a lower average age than the national average of museum goers, 32 compared to 45.8, as of March 2016 70% of the Broad’s visitors were younger than 34 years old.

The Broad represents what these museums can be, but just because others do not do as much as the Broad does not mean they do not do enough to benefit the public. The limited hours and days of operation and reservations requirements can be justified: the founder wanted to create unique and more intimate experiences for visitors. Should it matter that this type of public benefit is intangible?

Ignore for a second the obvious benefit of public access to these artworks. Also ignore the limited circumstances some of the museum allow the public access to these works – a reason for reduced access might be that these museums are new and the operating expenses associated with keeping more traditional matters currently do not make sense because of number of guest expected. How is it determined whether the public receives enough or any benefit at all? Maybe the benefit is not clear or scientific, maybe it is indirect, or maybe it will take years to manifest but once it does it will be incalculable. The fact is public benefit can be difficult to pinpoint.

This difficulty is reminiscent of a Copyright issue raised over 100 years ago. When approached with the question of whether an advertisement could be protected under copyright law in Bleistein v. Donaldson Lithographing Co., Justice Holmes pointed out that judges should not determine the worth of “pictorial illustrations”. His reasoning, which boils down to the tastes of any portion of the public should not be looked down upon. Following that logic, maybe Congress, the IRS or a court adjudicating the issue of public benefit should determine that if any portion of the public benefits from an organization that organization should be allowed to keep its tax exempt status.

 *  *  *

Note: This Article is being reprinted with the permission from Entertainment, Arts and Sports Law Journal, Fall 2016, vol. 27, no. 3, published by the New York State Bar Association, One Elk Street, Albany, New York, 12207

*About the Author: David Honig is a member of the Brooklyn Law School Class of 2015. While attending law school he was a member of the Brooklyn Law Incubator & Policy (BLIP) Clinic. He is admitted to New York and New Jersey state bars. From 2015 to 2016 he served as a postgraduate fellow at the Center for Art Law. David is currently pursuing an LL.M. in taxation from NYU Law.

Building an Anthology from Ephemera: The Legal Issues of Constructing a Political Art Archive

By Scotti Hill*

INTRODUCTION

Predating the advent of words, images have long served as an elemental tool of communication, working to describe and persuade. As the modern era’s complex political systems galvanized and alienated large masses of the globe’s population, the combination of image and text has forged a new path for the rapid dissemination of ideas. In response, political protest manifested into artistic expression, a form preferable to violence.

Attempts to preserve artifacts from political protests have been undertaken with renewed urgency. From the fight for democracy in East Asia to socio-economic and racial activism in the United States, urban areas are drowning in visual and textual evidence of dissatisfaction, reminders of the angst of political alienation. Over the past several years, political events and tragedies have also mobilized archivists hoping to preserve the emotional and historical potency of movements’ artistic output.

Spontaneous graffiti, posters and artifacts have accompanied large systematic protests, such as Occupy Wall Street and Black Lives Matter, raising concerns about the effectiveness of unauthorized artmaking. In Paris and New York, items gathered in the aftermath of terrorist attacks were collected with a sense of emotive resolution. The ephemera of political activism for these protests-posters, makeshift sculptures, graffiti, installations-have been cautiously assembled in archives. Building upon a recent New York Times commentary that investigates the increasing frequency of artifacts archives across the globe, this article explores the legal issues accompanying the preservation of political art, including how copyright, trademark, nuisance, First Amendment and vandalism claims can complicate the already murky notions of artistic authorship in political protest art.

Copyright: Is Political Protest Art Protected?

Copyright defines the possession of an exclusive legal right to literary, artistic or musical material. Normally, the creator retains copyright despite a change in ownership of the physical object. The government retains the copyright to public artworks it commissions, although under the Visual Artists Rights Act (VARA), artists can still enjoy certain protections for state owned works, including preventing the work’s destruction or removal from the site in which it is placed. As the first federal legislation of its kind, VARA effectively grants artists a moral right to protect their creations. VARA does, however establish criteria for what creations are protected, including original and exclusive works crafted from media such as paintings, photographs, sculptures and drawings.

The U.S copyright law is designed to protect intellectual property from being improperly appropriated, exploited and disseminated by third parties. U.S. copyright law’s fair use exception allows for reproduction in cases of educational commentary, criticism, reporting or teaching. In determining fair use, the individual or organization seeking to reproduce the image must articulate the underlying philosophical purpose accompanying the image and take care to not impede the original work’s potential marketability.

Generally, copyright protection for an artistic creation is broad, covering any work of original authorship crafted in a tangible medium that “possesses at least some minimal degree of creativity.” Do temporary or impermanent creations, like those used in political protests, retain the same protection?

Creators of political protest art frequently operate under the guise of anonymity, working to shape or build upon a dialogue. Such items are rarely crafted as art items, let alone designed to be exhibited after the event they are intended to address, shore up or put down. Instead of being cherished in a pristine exhibition space, works are created to be portable and destructible so that they may serve as instruments of a movement, rather than merely symbols of it. Such items include posters that loudly parade the epitaphs of the movement, sculptures symbolizing political ideals, and flyers and pamphlets that participants hand out to eager members of the public.  Most importantly, these items are intended to be shared, to elicit a desired reaction in furtherance of the larger philosophy for which they serve. The disposability of such items negates the care and attention paid to traditional artworks, decreasing the incentive to protect item through legal means. With the foregoing logic in mind, it’s seemingly unlikely that creators of political protest art can assert robust copyright protection for works not intended to survive beyond a certain event. As it stands, the record is silent on the issue of artists seeking copyright protection for works used in political protests, yet the advent of protest artifact archives may bring this once ancillary issue front and center.

Ferguson, Street Art and the Politics of Anti-Institutional Artmaking

The 2014 death of Michael Brown rendered Ferguson, Missouri a hotbed of political and social unrest. In turn, artists and intellectuals resisted a media firestorm that presented the city’s extreme political unrest in a monolithic fashion. In his communal art project, Push Forward, artist Damon Davis pasted images of raised hands in various locations throughout Ferguson. With the permission of local business owners, whose establishments had been boarded up and closed to the community, these stirring images served as visual symbols of collective solidarity. Davis’ works, and many others like it, signal an increasing acceptance of graffiti as art, with more business owners allowing their structures to serve as mediums or ‘canvases’ of expression.

In the 21st century, street artists have seized a growing spirit of dissatisfaction with cultural institutions-namely museums and galleries for which pioneering Land Artist Robert Smithson deemed “mausoleums of culture.” Now, art forms such as graffiti bring art directly to the people, and while the last decade has ushered in an unprecedented degree of cultural acceptance to the medium that was once dismissed as vandalism, this arena is still abound with legal issues such as nuisance. 

As a common law tort, nuisance claims can be either public or private, and, arise from unauthorized and inappropriate uses of one’s property. Often, nuisance claims aim to reverse the tortfeasor’s action, which has affected the property’s value or the owner’s reasonable use of land. The illegal placement of graffiti has served as a logical iteration of nuisance, with the art form existing as a literal defacement of property-regardless of aesthetic value or societal appreciation.

Still other forms of political artmaking evoke public nuisance claims, raising concerns about the viability of art rooted in illegality. VARA’s protection of public artworks is contingent on whether or not the work is of “recognized stature.”  In affirming a legal standard for unsolicited street artworks, English v. BFC&R E. 11th St LLC held that VARA fails to protect illegally placed graffiti. While not all graffiti is protest art, its ongoing popularity attests to the viability of public avenues of expression. Like many of history’s most daring and thought-provoking artworks, graffiti often dares to confront directly that which would have otherwise remained hidden.

Cataloguing Chaos: Preserving the Evidence of Terrorist Attacks in Paris, New York, and the Occupy Wall Street Movement

In the wake of major terrorist attacks in New York on September 11, 2001 and Paris on November 13, 2015, archivists began the arduous process of cataloguing thousands of items compiled in makeshift memorials throughout the cities. In such events, archivists often struggle with determining the best procedure for both collecting the items and curating overwhelming collection.

In Paris, archivists prioritize letters and drawings above other artifacts, as these items seem to harness most eloquently the human dimension of tragedy. Archivists aim to preserve these artifacts’ emotional potency, what sociologists and intellectuals consider the most telling of the collective experience spurned by the event. The donative nature of these items negates legal concerns regarding ownership, however, preservation-determining the appropriate size of a state archive or who makes these determinations remains.

In contrast to the portable ephemera in Paris, New York’s post-9/11 archivist practices were decidedly more ambitious, relying on both small tokens of grief and large sections of destroyed structures. After the city’s terrorist attack, distorted masses of the World Trade Center were quickly isolated and stored with the intent to preserve. Their sublime presence in the 9/11 museum is emblematic of a cultural reluctance to let go, as if the fragments themselves carry with them a magnetic power to retell the trauma of that day’s human loss.

In addition to terrorist attacks, socio-political insurgencies in the West have catalyzed ambitious archives and databases. From the outset, attempts to document and preserve the Occupy Wall Street Movement were undertaken by sociologists, students and organizers. Archivists have to date thousands of items-posters, signs, photographs and messages-stored in physical and digital venues. The process has engendered a fascinating degree of debate from academics and movement insiders, many of whom question the legitimacy of archives’ underlying narratives.

Starting in 2011, students at New York University’s Moving Image Archive and Preservation Program (MIAP) began collecting items presenting the media coverage of the movement. With the help of MIAP director Howard Besser, the students dubbed themselves “Activist Archivists,” uniting under the principal goal of preserving “the spirit, decentralization, self-organization, playfulness, and whimsy of this protest movement [which would otherwise] be lost to history if the media that documented this did not survive.” The archive’s role as counter of ‘real’ history presents an empowering incentive for the process of collecting, and may well persuade other movements to make similar strides in the future.

Je Suis Charlie

According to the U.S. patent and trademark office, two applications were filed for “Je Suis Charlie,” Paris’ iconic rallying cry following the 2015 Charlie Hebdo attack. Recently, the Washington Post proffered a commentary on the increasing frequency by which private individuals and businesses have applied for Trademarks in the wake of public tragedies.

As discussed in Dennis C. Abram’s article “Je Suis Public Domain,” opportunists see great economic potential in creative output, such as slogans that encapsulate the essence of collective spirit following great tragedy. Such attempts are rarely, if ever, legally recognized. U.S. law dictates that a trademark must have some connection to a good or service that is being promoted and visually identified so as to distinguish it from other similar products. 

First Amendment and Vandalism: The Case of the Illuminator Art Collective

While material items such as posters, sculptures and pamphlets evoke the classic definition of a political artifact, performance remains an apt medium for the dissemination of socio-political critiques. Inherently uncommodifiable, performance art often prioritizes the immediate interaction of participants involved in political protests over secondary documentation in the form of photographs or videos. Groups like the Guerilla Girls, the famed feminists whose performances spurned valuable dialogue regarding institutional racism and sexism within the art world, have put art activism on the map in recent decades.

Similarly, the New York City-based Illuminator Art Collective (IAC) stages political protests at famous sites such as the Metropolitan Museum of Art and the United Nations Building, where these iconic structures become the conceptual canvas upon which political critiques are projected. Using a specially designed van that holds a projector on its roof, the group projects messages and symbols meant to provoke dialogue and reveal the secrets these institutions are inclined to keep hidden. The group’s tactics reveal a curious relationship between art activism and the First Amendment, as well as how the seemingly universal definition of vandalism must be altered to adapt to new technologies and artistic visions.

The group’s work highlights this fascinating intersection between art activism and law. On September 9, 2014, three members of the group, Kyle Depew, Grayson Earle and Yates McKee, were arrested for unlawful posting of advertisements, when they projected images on the façade of the Metropolitan Museum of Art. The images were critical of billionaire businessman David Koch, who had recently donated $65 million dollars to the museum in exchange for the museum’s public plaza being renamed after him. IAC’s projections were critical of Koch’s environmental stances, namely his denial of climate change. While parked on a public street, the van was approached by a NYPD deputy, who later seized the group’s projector equipment and arrested the three on the charge of unlawful posting of advertisements. Before these charges were formally dropped by a criminal court, the city of New York issued criminal summonses for three members. NYPL §145.30 “forbids unauthorized individuals from posting, painting or otherwise affixing to the property of another person any advertisement, poster, notice or other matter designed to benefit a person other than the owner of the property.” The law appears to be an adequate measure in protecting businesses from becoming hosts to unwanted advertisements from third parties. In instances of political protest however, does the projection of commentary on the exterior public space fit this definition? While the city of New York seemed to think so, the charges were ultimately struck down in criminal court, with IAC’s lawyer Sam Cohen rightly pointing out that a streaming projection fails to fit the standard definition of “affixing. ”

It follows that if IAC’s political projections fail to meet the definition of unlawful posting of advertisements; they similarly fail to match the legal requirements of vandalism. Vandalism is defined as the deliberate defacing or destruction of property. While it is clear that plastering a non-affixable projection to the façade of a building fails to constitute destruction, does it deface? Defacing implies the marking of a surface-though not in a severe a fashion as destruction. Therefore, IAC’s unique brand of projector activism exists as a clever exercise of first amendment free speech.

CONCLUSION

As curators and archivists undertake the arduous process of compiling artifacts for physical and digital preservation, many questions remain about the legality and posterity of protest art. What is the optimal manner by which to preserve political or artistic ephemera? Who is best situated to protect artists’ rights to create and capitalize on their own art? What do keepers of protest art see when they preserve or trade in this kind of creative output? While political upheaval and tragedy prompt inflections from diverse global communities, museum archivists and administrators as well as art dealers and collectors look to preserve the artifacts for entirely different reasons. Due to the changing and often unsettled landscape of political protest art, artists and collectors alike may find themselves in need of legal advice to obtain information about available protections and defenses.

Note: This article is reprinted with permission from Entertainment, Arts and Sports Law Journal, Summer 2016, Vol. 27, No. 2, published by the New York State Bar Association, One Elk Street, Albany, New York 12207.

About the Author: Scotti Hill is a J.D. Candidate, 2018 from the S.J. Quinney College of Law at the University of Utah. She served as a summer 2016 intern for the Center for Art Law, and she can be reached at scottiaustinhill@gmail.com.

Common European Heritage: The French and Dutch Government Joint Acquisition of Two Rembrandt Portraits

*By Ana T. Iacob

“Madame le ministre, Ladies and gentlemen, We hébben ze! Nous les avons! We have got them!’’

— Speech by Dutch Minister for Education, Culture and Science Jet Bussemaker at the official signing ceremony for the Rembrandt portrait purchase

On February 1, 2016, France and the Netherlands jointly acquired two works by Rembrandt van Rijn, the wedding portraits of Maerten Soolmans and his wife, Oopjen Coppit. This joint acquisition, otherwise known as the Rembrandt Treaty, was accomplished through an intergovernmental agreement signed by the French and Dutch Ministers of Culture, becoming thus one of the most expensive sales of Old Master paintings in history. Christie’s Private Sales channel facilitated the acquisition, which totaled €160 million for both portraits.

Screen Shot 2016-07-06 at 4.12.43 PM

Rembrandt van Rijn, Portraits of Maerten Soolmans and Oopjen Coppit (1634)

History of the Portraits

The two oil paintings, completed in 1634, represent the only full-length portraits painted by Rembrandt. In 1878, the portraits moved from the Van Loon collection in the Netherlands to France when they were purchased for the Rothschild Collection. The impending move to France spurred the  Dutch government to attempt to acquire the paintings for the first time in order to prevent them from leaving the Netherlands. However, that did not occur due to the exorbitant price of the works. Accordingly, the portraits remained in the Rothschild Collection in France until 2013, when the Rothschild family announced its intent to sell the pair.

Immediately, the Dutch government saw the opportunity to have both paintings return to their nation of origin: the Netherlands. In an interview with BNR Nieuwsradio, the Dutch Minister for Education, Culture and Science Jet Bussemaker said it would be “very undesirable” if the works were sold to “a rich oil state” instead of returning to the Netherlands. The Dutch parliament feared that if the Netherlands did not secure the works, the two portraits would remain outside their country of origin indefinitely.  

Sale of the Portraits

Both France and the Netherlands sought to individually purchase the portraits. According to Gary Schwartz, art historian and Rembrandt scholar, owning the portraits was a matter of national prestige for both the Netherlands and France. As early as September 2015, both the Rijksmuseum in Amsterdam and the Dutch government negotiated an agreement to bring €80 million to the table each in order to secure the paintings. Triggered by the eagerness of the Netherlands to acquire the works, the French Ministry of Culture, Fleur Pellerin, also offered €80 million to buy one of the portraits, with assistance provided by the Banque de France. According to Pellerin, France was ready to split the works with the Netherlands, even though there were no signs of agreement on the Dutch side and the uncertainty whether portrait owner Eric de Rothschild would even agree to separate the portraits.

The willingness of the Dutch government to massively contribute to the acquisition of the paintings surprised many. Arnold Witte, the head of art history at the Royal Netherlands Institute in Rome, noted that this would be the most expensive acquisition made by a public institution to this day. He further added that, given the current situation, if there is a will, there is a way to provide the necessary money. Indeed, the Dutch government had found a way to fund the purchase of a national treasure in the past: the government acquired Dutch national treasure “Victory Boogie Woogie” by Piet Mondrian in 1998 for 35 million. The public outcry in response to the government’s decision to spend such an amount at one time was widespread.

The desire of both countries to secure the masterworks for themselves clashed with the impossibility to pay the high asking price. A compromise was reached in the form of an intergovernmental agreement between France and the Netherlands, which stipulated that the Netherlands would own Maerten’s portrait and France would own the Oopjen portrait. The intergovernmental agreement further indicated that the works may never be separated from one another. To ensure that the portraits are always together, the pact contains firm provisions according to which the portraits will always be exhibited side by side, alternating between the Louvre and the Rijksmuseum. Both museums also agreed to incur joint responsibilities for the portraits. Furthermore, the agreement also allegedly memorialized the agreement to ban loans of the two portraits to institutions outside the two nations.

From a sequence of correspondence sent between the legal representatives of both parties, it turns out that the joint ownership transaction was supported by three legal documents. The documents included a protocol of cultural cooperation, which is a political document expressing the intent of the parties to engage; the intergovernmental agreement between the two countries; and, finally, the purchase agreement. The French representatives, in the explanations regarding French law, stressed the importance of mentioning that the contracts explain clearly that it is not a joint ownership, but rather a joint responsibility towards the paintings.  

Legal Ramifications of the Joint Purchase

Historically, France has been very protective towards its cultural heritage, as demonstrated by French patrimony laws regarding national treasures. In this fashion, article L 111-1 of the Code of French Heritage defines the notion of national treasure. Cultural assets that qualify as national treasures are works within public collections, historic monuments and those works of major interest for national heritage. If the work passes a set value and seniority threshold, it may be subject to an export license refusal. Accordingly, if an item is older than 50 years and valued at more than €150,000, it may not granted the export license and the work cannot leave the country for a period of 30 months–a period in which the French government or a private patron could raise the required amount to acquire the works. In this case, even though the two portraits satisfied the two national treasure qualification requirements, the export license was granted without even submitting documents for the review of the Advisory Board of National Treasures. The Louvre and the French Ministry invoked “lack of funds” as an explanation for the granting of the export papers, even though some questioned the influence of the Rothschild family on the expedience of the process.

According to French law, the joint purchase by two Museums and subsequent transnational ownership of the works would have been unprecedented and perhaps legally impossible. However, the French government circumvented this difficulty by the separate and individual ownership of each of the portraits by the two governments. Accordingly, the Louvre owns Oopjen’s portrait while the Rijksmuseum owns Maerten’s, which satisfied French acquisition legislation.

Reaction to the Sale

In France, the sale was met with harsh criticism. For example, the French publication, La Tribune de L’Art, had very strong opinion on the matter, and expressed disappointment that the Ministry of Culture and the Louvre did not declare the works as national treasures by 2013, thus making them then available for sale. Had the works been declared national treasure, the sale would have been delayed for 30 months, giving the chance to the French state or a private patron to acquire the works. However, the Louvre and the Ministry explained that even if they would have delayed the sale, it would not have been enough to raise the necessary funds.

Inevitably, Eric de Rothschild, the portraits’ owner before the sale to France and the Netherlands, was also targeted by criticism. La Tribune de l’Art accused him of betraying the spirit of his family’s patronage, going so far as to say that Rothschild “should have honored his name.” In their opinion, even though he had the right to sell the work to whomever offered the highest price, as a great patron of art and as a member of Société des Amis du Louvre, Rothschild should have approached the museum and settled for a price that would have allowed the paintings to remain in the country unconditionally.

   In the Netherlands, the opinion regarding this sale and the decision of the government to pledge such a big amount for the purchase varied. Dutch Parliamentary leader Alexander Pechtold played an important role in securing the Rembrandts. He led the campaign to raise the necessary funds for the sale and received praise for the fact that someone in his position would focus on works of Dutch cultural heritage. Dutch Minister Bussemaker explained that this was an opportunity that would never come again and, as such, had to be seized.

On the other hand, when asked on the street for their opinion, a number of individuals noted that in these times, such a great amount of money, spent at once, seemed excessive.

Conclusion

Joint ownership of artworks by two governments remains unusual and is not without complications. For example, in 2009 and 2012 respectively, two Titian paintings were purchased by the National Gallery in London and the National Gallery of Scotland for $147 million. Now, the status of this duo may be in jeopardy with the recent Brexit vote. Shared ownership of works, however, can be applied on smaller scales. Dual ownership of videos is occurring more often because it is logistically easier, such as with the joint acquisition of The Clock (Christian Marclay) by the Tate, the Centre Pompidou and the Israel Museum.

Although the examples above demonstrate other instances of dual acquisition, the joint purchase of the Rembrandt portraits is outstanding for a number of reasons: first, due to the record amount paid for the art by two nations and second, due to the unusual ownership arrangements between them. Pooling together extensive economic and political forces, both countries successfully secured two European masterpieces. It is unclear whether potential buyers of related artworks in the future will be able to use this dual acquisition model to guide their dealings, as the circumstances surrounding the Rembrandt portraits’ creation and ownership are unique in their own right. If nothing else, one positive outcome of the two nations cooperating is the the fact that for the first time in a long period, the portraits will be publicly displayed. Sales taxes, if any, seems to be owed exclusively to the French government.

Sources:

*About the Author: Ana T. Iacob is a jurist living in Amsterdam, the Netherlands. She has a Master in European Private Law from the University of Amsterdam and is interested in art and intellectual property law.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

 

Spotlight: Institute for Museum and Library Services (DC)

By Debra S. Friedmann*Screen shot 2015-10-06 at 10.34.02 AM

Combining the number of all Starbucks and McDonald’s locations will still not come close to the number of museums and libraries in all of the United States. According to the Institute of Museum and Library Services (the “IMLS” or the “Institute”), an independent government agency dedicated to the innovation and improvement of libraries and museums around the country, there are some 35,000 museums and 123,000 libraries in the U.S. These numbers are collected and reviewed biannually.

IMLS was created through the Museum and Library Services Act in 1996, an amendment to the Museum Services Act, within the National Foundation for the Arts. The Institute is currently  headed by Dr. Kathryn K. Matthew, who was recently confirmed by the senate in September 2015 for a four-year term. The President’s National Museums and Libraries Services Board advises the IMLS director on general policy and practices, in addition to selections for the National Medals for Museum and Library Service. The Institute, made up of approximately sixty employees receives funding through the federal congressional appropriations process, signed by the U.S. President.

The 114th Congress House of Representatives report on the budget for the 2016 fiscal year sought to eliminate the budget for the IMLS claiming that supporting museums and libraries is not a core federal responsibility.  The report instead puts the burden on the state and local governments to support these institutions, supplemented by charitable contributions from the private sector. President Obama on the other had requested a budget of $237,427,957 for the Institute. With much additional support from the museum and library community, including advocates from the American Museum Alliance, IMLS overcame this hurdle will be allotted funds with the completion of the 2016 budget.

One of the duties of the Institute is to distribute funds down the chain line in the form of grants. IMLS is the greatest source of primary funding from the federal government to support museums and libraries. It also administers the funds appropriated by the Library Services and Technology Act (LSTA). IMLS was developed to create a network where people can connect and share ideas. Each of these cultural institutions – libraries including public, academic, research, special and tribal, and museums including art, history, science and technology, children’s museums, historical societies, tribal museums, planetariums, botanical gardens and zoos – to some degree is supported by IMLS, whose mission is to “inspire libraries and museums to advance innovation, lifelong learning, and cultural and civic engagement.” Specifically  IMLS sets five main goals to guide research, policymaking, and grant opportunities, which include: 1) a focus on the learner as a member of the local and global community; 2) civic engagement and cultural opportunities; 3) innovation in technology to help learning; 4) advising the president on plans, policies, and activities; and 5) public management.

The Institute produces annual reports in which it highlights surveys, research, and analysis conducted by IMLS to identify trends and evaluate needs of libraries and museums.  According to the reports, the research is submitted into publications and catalogs by the agency is meant to help museums and libraries brainstorm ways to improve their institutions by learning from the successes and from successful programs as well as missteps. One such survey is the “Public Needs for Library and Museum Services Survey” (PNLMS), accessible in both English and Spanish. The survey includes information regarding  museum attendance, attitude towards going to museums and libraries, demographics of those who respond, and information on how and to what extent the family uses these institutions through a cross-sectional sample of data collected through random-digit dialing (RDD). The results of this survey were released in Spring 2015, and are often used by policymakers in federal and state government, practitioners, researchers, and journalists to learn about the outstanding needs of the public and consider how to resolve these deficiencies.

The IMLS Office of Planning, Research and Evaluation (OPRE) is a resource for data collection, publications, and evaluation resources that measure the outcome of different methodologies. All of these findings are available and shared by museums and libraries to improve their own programming in areas such as general demographics, child well-being, education, health, arts and culture, library services, economic indicators, labor and employment, and small businesses. Not only does IMLS provide the information, but it also provides the tools for museums to create their own surveys and data analysis that are specially designed to address the needs of the institution. To help measure the success of museums and libraries experimenting with innovative programs, the IMLS website also offers guides to monitor, evaluate, and analyze the results of the program. The agency recognizes that not all museums and libraries are the same, and thus the same evaluation  will not always apply to every program. IMLS provides a diverse list of methods and resources with contact information for a guide to help shape future projects.

IMLS awards grants in areas such as collections management, community engagement, conservation, formal education, informal learning, partnerships, professional development/continuing education, research, demonstration, digital collections/tools, public programs, awards, and innovation. The agency invites applicants to develop new, creative, and effective ideas to change any part of the industry.

One such grant was awarded to the Barnes Foundation in 2013, partnered with the Conservation Center for Art and Historical Artifacts in Philadelphia. The grant helped fund the conservation of 22 works of art, including five works by Paul Cézanne, five by Pablo Picasso, nine by Paul Klee, two by Edgar Degas, and one by Pierre-Auguste Renoir. Following its move from Lower Marrion to the Philadelphia Museum Mile, the Barnes Foundation has a conservation lab on site . Several of Cézanne’s sketches were newly revealed by cleaning up watercolors form under brown acidic paper. In celebration of their new findings, the Barnes foundation held an in-house display entitled Cézanne Uncovered: Two Sketches Revealed through Conservation.

Once a grant is awarded, IMLS requires the awarded institution to develop an outcome-based evaluation (OBE) procedure. The evaluation method is meant to help show the extent to which the program met its goals, progress towards long-term goals, quality of progress, need for more or fewer resources, and reiterates the importance of the program. The term “quality” is defined by each institution individually and could include categories such as efficiency, productivity, cost control, effectiveness, and value to the community.

These OBEs are submitted to Congress as required by the Government Performance and Results Act of 1993. The purpose of this review is to keep the federal government informed about the programs they fund and to try to identify areas of inefficiency and overspending. Institutions are therefore accountable to the federal government for the funding they receive. The efficient funding of these grants contribute to the overall goal of IMLS, which is to create strong libraries and museums and to connect these institutions so that successful programming can spread further. IMLS creates a database for all members of museums and libraries to see which programs worked, which did not, and how they may implement a completely new idea.

IMLS also takes applications for grant peer reviewers. After IMLS receives a complete application for a grant, the application is reviewed by volunteers with comparable expertise. According to the review process program instructions, each application is reviewed approximately three to six times. The reviewers submit comments answering the questions IMLS provides for evaluation. IMLS then makes the final funding decisions using these comments to further inform its decisions.

Under the new leadership of Dr. Matthew, the Institute is poised to become less of a mystery. For those interested in exploring the employment opportunities with IMLS, there are paid internships available to law, library and public policy students.

Sources:

*About the Author: Debra Friedmann is a second-year law student at the Georgetown University Law Center. She received a B.A. in History and Studio Art from Brandeis University. She may be reached at dsfriedmann@gmail.com.

Disclaimer:  This article is for educational purposes only and is not meant to provide legal advice. Readers are not meant to act or rely on the information in this article without attorney consultation.

I am not a Fan: Museums Acting and Reacting to Public Opinion

By Irina Tarsis, Esq.*

Magritte, "C’est ci ne pas un Pipe."

Magritte, “C’est ci ne pas un Pipe” (1929). On public view at LACMA (78.7).

Self-censorship by museums is a dangerous trend. In the July/August issue of The Art Newspaper, Maurice Davies, of the Museum Consultancy and senior research fellow in the Department of Management at King’s College London, explores several instances in recent history where museums worldwide engaged in self-censorship to the detriment of the public. On this humid summer day, we ask, shouldn’t museums leave self-censorship to artists and trigger-happy public? Museums focus so much of their attention on self-censorship, yet leave other areas of museum administration exposed. Self-assessment should occur across all aspects of museum administration, such as encouraging provenance research, decreasing disparity in staff compensation and developing best practices for borrowing and lending art works. Otherwise it seems that museums tend to fight tooth and nail over keeping contested art works in their collections, in efforts that are more costly than brainstorming creative solutions to attract visitors to the exhibition halls or address historical and social injustices.

Screen Shot 2015-07-10 at 2.25.02 PMWhereas Davies’ article focuses on self-censorship due to security fears, and controversial material that includes nudity, racial, or political representations, the recent public outcry against “Kimono Wednesdays” in front of the 1876 Claude Monet’s “La Japonaise/Camille Monet in Japanese Costume” at the Museum of Fine Art collection in Boston is but another instance where public outrage is misplaced as more important issues remain overlooked. What is truly shocking is that there are plenty of outrageous art-related displays that deserve the flagellation of the public. Somehow these manifestations do not encounter the same adamant resistance, leave little impact on museums, yet tend to be more offensive.

“In an episode that speaks volumes about cultural institutions, ethnic sensitivity, and the power of protest in the digital age, the Museum of Fine Arts is hastily pulling back on an event that protesters labeled a latter-day form of racist minstrelsy.” [From the editor: “Minstrelsy – a 19th century form of entertainment developed in the US that included musical, comic and variety acts performed by either white people in blackface or by black people.] Thus begins just one of dozens of articles, this by The Boston Globe staffer, Malcolm Gay, on the topic of the failed experiment at interactivity at the Boston Museum of Fine Arts (the “MFA”) involving a kimono dress-up in front of a Monet portrait.

The irony of the situation of course is that this very same Monet painting recently returned from an exhibit in Japan, entitled “Looking East: Western Artists and the Allure of Japan” where “historically accurate reproduction kimonos were made for visitors to try on.” Yet, a similar program at the progressive Massachusetts museum faced an exceedingly critical public reaction from concerned visitors and activists. The MFA chose to diffuse the controversy by canceling the dress-up element of the display instead of using this opportunity to tackle the misconceptions surrounding the idea of cultural appropriation.

Monet "La Japonaise (Camille Monet in Japanese Costume)" (1876). On View a MFA (56.147).

Monet “La Japonaise (Camille Monet in Japanese Costume)” (1876). On view at MFA (56.147).

The decision to scrap the benign kimono project is disturbing because museums are meant to be educational forums where different manifestations of creativity and creative types inform the public about the past and safeguard it for the future. It is universally accepted that artists frequently explore and borrow ideas and iconography from different cultures and other artists. Just as Eastern Art experimented with “Western” conventions of painting landscapes to show perspective and integrated Western dress into portraiture, artifacts of Asian, African, South American art and culture, including fans, kimonos, masks, patterns, ceramics, etc. were and continue being frequently incorporated themes in Western artworks, with varying success.

What was the intent of the MFA in allowing visitors to try a kimono? To offend? To discriminate? Unlikely. The Museum is open for free on Wednesday nights to be accommodating and inclusive. Making kimono available on Wednesday nights for photo-ops in front of a festive 19th century Impressionist painting was anything but racist. By allowing their visitors to don a replica kimono, the MFA probably wanted to capitalize on social media use in museums. Even the White House, lifted its ban of taking photos on the tours, arguably recognizing that the technology and the inexplicable need to snap pictures with one’s phone at every turn, on every tour and in every location, will happen whether they are banned or not.

The lesson learned from the MFA bungle, is perhaps what is fashionable is not always classy. Davies concludes his article with a suggestion that “museums could push at the edges of the law” and they should help address difficult contemporary events and social divides rather than shy away from this role. In instances such as the “Kimono Wednesdays”, we counsel museums to be more discriminating in handling public reactions. On the house.

Select Sources:

About the Author: This editorial is by Irina Tarsis, art lawyer and Founder and Director of Center for Art Law.

From DIA To Dia: Deaccession Debate Rages on as Dia Founders Sue To Prevent Sale Of Twombly And Chamberlain Works

by Hanoch Sheps, J.D.*

John Chamberlain's "Candy Andy" (1963)

John Chamberlain’s “Candy Andy” (1963)

In a complaint filed last week on November 7, the founders of the Dia Art Foundation (Dia), Heiner and Fariha Friedrich, brought deaccessioning issues back to the fore – and eventually to the courtroom. They are suing both the Foundation’s current administrators and an auction house for injunctive relief to ultimately prevent the deaccession (removal from the collection and sale) of works by Cy Twombly and John Chamberlain. (See the Center for Art Law posting last week about deaccessioning in connection with the Detroit Institute of Art; Columbia Law School Event Explores the Legal & Ethical Dilemmas of Deaccessioning as DIA Bankruptcy Pushes the Envelope on Deaccession Debate).[1]

Cases like this question the ability to and discretion with which a museum’s board acts when removing artworks from its collection. In their complaint, the Friedrich’s hark back to the founding of Dia as a museum where artists like Cy Twombly (1928-2011) and John Chamberlain (1927-2011), Donald Judd (1928-1994) and Robert Whitman (b. 1935) could bring their work, away from commercial consumerism and for the benefit of the public. (See the Art Market Monitor’s initial reporting of the lawsuit here: Dia Founders Sue to Stop Sotheby’s Sale of Twombly and Chamberlain). The Friedrich’s further claim that they founded Dia to keep seminal contemporary works available to the public – not to be sold to the highest bidder. Dia is a nonprofit organization founded in 1974 continuing a mission of fostering artists with potential to change perceptions of art. After learning from Dia director Philippe Vergne about the plans to sell two works, the Friedrich’s co-authored a letter to Dia’s Board of Trustees, excerpts of which are included below (the full letter can be found in the lawsuit, a link to which is included above):

The original collection was formed to preserve the great art of our time from the ravages of the art market and to present it to the public in the most beautiful way…The artists trusted the original board of Dia to guard and preserve their work. They also allowed the board to purchase works from their own holdings which they had kept out of the market in the hopes that these special works would go to an institution which would properly value, preserve and present them to the public. Thus, any intention to put artwork for sale…is a betrayal of trust toward the public to which the Foundation is beholden.

Although no state has a statute that expressly addresses the general issue of deaccessioning, this case, brought in the Supreme Court of New York, is implicitly about policy and ethical considerations. (See Malaro, Marie C. and Pogány DeAngelis, Ildiko. A Legal Primer on Managing Museum Collections – 3rd Ed. Washington: Smithsonian Books, 2012.). Deaccessioning as a policy is a matter for the board’s discretion, but rarely does it go without notice or comment from the media and the general public, and in this case a lawsuit. Depending on the manner in which museums receive artworks from donors, a court may have no role in the decission to deaccession. For example, if donors attach restrictions to a charitable donation, a museum would have to seek court approval to sell the piece. The IRS also keeps tabs on artworks donated to charitable entities if they are sold in order to assess taxes on the donor for related or unrelated uses of the gift. Alternatively, if the artwork is on an extended loan, a museum may not be able to pass clear title to a piece through a sale anyway (one of the Friedrich’s claims rests on a Twombly piece that is allegedly on long term loan and to which Dia does not have clear title to pass upon auction). Ultimately, the outcome of any particular deaccession relates back to the initial acquisition of the artwork (by donation, purchase or otherwise) and any subsequent changes to the museum’s control over the piece.

Although there are multiple reasons and theories for deaccessioning, the Friedrich’s focus here is intention, namely that Dia’s board will not undermine the original mission of preserving the donations for future generations.

[1] Note, while the Dia Art foundation in New York and the Detroit Institute of Art are commonly abbreviated as DIA/Dia, they are entirely separate entities.

*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 or 201-696-6881.

Disclaimer

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

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.

NPR Story on the Field Museum’s Financial Crisis Incites Sharp Comments from Listeners

The Field Museum is encyclopedic, with more than 20 million biological and
geological specimens and cultural objects.
On May 6th, NPR’s Morning Edition aired a feature on the Field Museum in Chicago.  The report is hackneyed, fitting into the genre of the modern American museum tale.  After cutting costs and staff layoffs, the museum is still $5 million in the red this year–with most of its budget for next year allocated to pay bond debt.  Last year the museum sold a large collection of George Catlin paintings for $15 million to pay for “certain staff salaries and for buying artifacts.”

The highlight of the report was not the story in itself, but rather, the response it garnered from the public on the NPR website.  The comments and the passion with which they were posted reveals the public’s views on museum struggles.  The discussion exposes that the troubles at the Field Museum (and any museum), are perceived through a kaleidoscope that includes the woes of Wall Street, the divergent extremes of politics, urbanization and suburbanization, the wealth gap and the growing baby boom generation.

The Field Museum sold some of their George Catlin
collection at the December 2004 Sotheby’s sale.

The discussion began as soon as the storied aired with a Kristopher Heinekamp commenting: “The only functioning aspects of society are the things that directly benefit the Oligarchy.  All other social institutions fall to the wayside.  Can’t afford a ticket to the Field [Museum]?  WELL, TOO BAD WEALTHY PEOPLE DON’T SHARE YOUR IDEOLOGY!  NO LEARNING FOR YOU!  Classy.  Cause, you know, MUSEUMS are now politicized.  My fondest memories of the Field Museum are definitely the Socialist Indoctrination Room, with a close second to the Liberal Brainwashing section.  What sick, craven world do you live in that MUSEUMS are somehow a “Liberal” institution?  What, is LEARNING a “Liberal” conspiracy?”

Geo Douglas wrote: “The story cited the sell off was ‘to pay for certain staff salaries’ as well as to buy artifacts.  That is outside of the guidelines of acquisition and care.  It’s a conflict of interest.  That could make it possible for the money gained to go directly to the person who authorized the sell.”  Julia T. responded: “Well, heck, Geo.  Isn’t that kinda what we did with Wall Street?  Supposedly, the financial institutions were crumbling, back in 2008.  There was no money.  And a second Great Depression looked possible.  Then, Bush give them the TARP bailout.  Next think you know, we hear of CEOs getting multi-million dollar bonuses….”

The commenters (note: not commentators) left very few suggestions.  Cat’s Paw only had to say: “Go to the museum.  Spend some money there with your family.”

Exceptionally, the popular debate about what to do with struggling museums and art institutions can be boiled down with the comments of just two people.  Julia T. stated sarcastically: “God forbid, we preserve anything that could provide culture and knowledge to us or future generations.”  General Specific responded: “Go ahead and preserve what you and your friends want.  No one is stopping you.”

The NPR story and comments can be found at: “Chicago’s Famed Field Museum Struggles to Dig Out of Hole,” Morning Edition, May 6, 2013.

Of Brooklyn Museum, Colonel, and [Cy Pres]

Once upon a time, the Brooklyn Museum was poised to be the largest art museum in the world. The building of the Brooklyn Museum, designed by McKim, Mead and White, opened in 1897, and the Museum received thousands of donations and bequests from affluent city residents and natives, including Colonel Michael Friedsam (1932 bequest) and Minor C. Keith (1934 purchase).

Friedsam bequest contains almost one thousand works, of which a quarter is deemed undesirable (fakes, misattributions or shabby). According to the terms of the bequest, the museum must obtain permission from the Friedsam estate’s executors to deaccession any of these objects. According to the Museum’s general counsel, Francesca Lisk, the last Friedsam executor died fifty years ago in 1962. Therefore, it is impossible to give literal effect to the bequest document.

Apparently, the Brooklyn Museum is working with the New York State Attorney General’s Office to resolve the bequest conundrum, further complicated by Friedsam’s will… (to be continued).

Source: The New York Times;
Image: Portrait of Louis XI, marked for deaccessioning (Brooklyn Museum).