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1 Art & L. 1 (1974-1975)
Museums with Walls - Public Regulation of Deaccessioning and Disposal

handle is hein.journals/cjla1 and id is 39 raw text is: cArt&fea A Publication of Volunteer Lawyers for the Arts Fall 1975 Museums With Walls Public Regulation of Deaccessioning and Disposal by Harry Welntraub I Few people, besides museum professionals, knew until recently that museums sell objects from their collections. This was not due to the usual reticence of museums. Itwas, in fact, acover-up.Therewere two reasons for this. First, often a museum would sell unwanted objects to trustees or use tham as baitwith which to woo donors. Second, the museums understood in many ways better than the public, that they did not own their objects outright but held them in trust for the public. Perhaps apprehensive that incurred public Interest would lead to public watchfulness over this and other areas of museum activities, museums deaccessioned and sold quietly. So instead of forthrightly explaining this legitimate and often beneficial practice by which an accessioned object may be deaccessioned and disposed of, museums hid it and foolishly let its discovery explode upon them. The reasons for deaccessioning and disposal are many and may include the lack of proper storage space, opportunities to acquire finer examples of the same kind of object, an attempt to bring a greaterbalance to the collection, or a curatorial judgement as to the lessening of an object's aesthetic and/or historical worth. The decision to accession ordeaccession is usually made in line with some established, though not necessarily codified, administrative practice; of course, the practice might be a poor one. Approval of deaccessioning and disposal, even in principle is not unanimous. Valid objections are made that a curatorial decision to dispose of a work is merely an exercise of taste having its own place and time and should not be imposed upon future generations. The policy also has the effect of alarming prospective donors and making uneasy past benefactors who justifiably feel that an object given to the public should not be removed from the public's access. Deaccessioning and disposal have gone on for many years behing the hoary fortress-like walls that conceal museum decision-making. This tranquility remained undisturbed until 1972 when the New York Times revealed that the Metropolitian Museum of Art had deaccessioned eight works by Important modem artists and transferred them, by sale and trade, into private hands. The story of that affair is by now familiar but its relating anew has acquired a current urgency. The circumstances recalling the Metropolitan's actions are unhappy. In recent months the Attorney General of New York has moved against the Museum of the American Indian-Heye Foundation in New York Supreme Court for remedies Including a compulsory accounting and the removal of trustees.% The Attorney General charges, among other things, that ...In violation of their fiduciary responsibility the trustees have intentionally and unlawfully delegated to the Director substantially all their fiduciary duties Including granting him sole discretion with regard to the acquisition, sale, exchange or other disposition of Museum property including the manner In which the records of such disposi- tions and acquisitions are kept. (Emphasis supplied.) More shocking is the allegation against that Museum of the American Indian that: Certain trustees and former trustees and/or members of their families have engaged In wasteful and unlawful transactions with the trust constituting self-dealing In that they have obtained artifacts and other benefits from the Museum without paying adequate consideration thereof. Let it be said at the outset that the Metropolitan Museum of Art was not charged with any criminality or any form of negligence recognized at law. The Metropolitan's errors, if they be called that, were committed more through secrecy and lack of candor - not at all unusual among museums - than by any kind of Intentional dishonesty. Once the Metropolitan admitted its errors, it moved to make certain that they would not recur. Still, what befell the Metropolitan is instructive in the matter of a museum's recognition of the public trust. Guided by this Harry Welntraub Is a law student and Ph.D. candidate In art history at the State University of New York at Buffato. principle, a museum would look beyond enhancing its own holdings as if it were a private collector in competition with othermuseums. Rather, itwould handle the items in its collection, in particular in deaccessioning and disposal, with a view toward gratifying the interested members of the public who look to all museums to perform exhibition, educational and scholarly fuctions. On February 27,1972, the NewYork Times published the firstof a series of news articles by their then senior art critic, John Canaday. Under the headline, Very Quiet and Very Dangerous, Canaday charged that the Metropolitan Museum of Art soon would dispose of a number of important pictures from their collection, including Manet's Boy With a Sword and Cezanne's View of the Domaine Saint-Joseph.2 A week later, Thomas P. F. Hoving, the Museum's Director, airily dismissed Canaday's piece as 99 per cent inaccurate and assured the public that the Metropolitan was not engaged in equivocal, clandestine, and even possibly unethical practices and that, at any rate, if pictures were to be sold, it would be announced. On September 30, 1972, the Times ran a front-page story by Canaday, headlined, Metropolitan Sells Two Modem Masterpieces in an Unusual Move.3 The two pictures, van Gogh's The Olive Pickers and Douanier Rousseau's Monkeys in the Jungle, had been sold six months previously to an undisclosed buyer. Hoving reluctantly admitted the fact of the sale but defended it on the grounds that the proceeds had been used to improve the balance of the Museum's collections by contributing to the purchase of Annibale Caracci's important Coronation of the Virgin and a very fine etching by Degas, and by replenishing some of the principal of purchase funds depleted by the $5,500,000 acquisition of a few years earlier of Velazquez's Juan de Pareja. The issue for the Times was one of connoisseurship, museological philosophy, and public relations. Alluding to horrendous examples of curatorial misjudgements by other institutions - including the sale of 97 of its original 230 Kandinskys by the Guggenheim and the auctioning of a clutch of Monets by the Chicago Art Institute in 1944 (all for far less than a major Monet would fetch now) - Canaday admonished the Metropolitan to look to its affairs and reminded everyone of the unpassed provision in a 1969 House tax reform bill that would have disallowed deductions for the amout of appreciation of art works donated to the public institutions. The situation, as Canaday saw it on September 30, was one for some anxiety but not for government intervention, for after all, No legal complications were involved in the sale of the two paintings. The Rousseau was an unrestricted gift in the will of the late Adelaide deGroot and the van Gogh was purchased from funds in 1956. By January 14 of the following year, the attitude of the Times had changed drastically. Canaday's schoolmasterly approach was replaced by John Hess's stridency, for there were accusations of legal complications. Besides the sale of the van Gogh and Rousseau, the Metropolitan had traded, for a second time with Marlborough, six paintings by European (Continued on page 5) In This Issue Articles Museums With Walls ...................................... 1 by Harry Weintrsub Publishing Music on Your Own ............................ 3 by Jimmy Owens VLA VLA Report .............................................. 2 VLA Forms ............................................... 2 Midwest VLA ............................................. 2 News & Columns Locked Out of the Showcase ............................ 5 Advocates v. Thompson ................................... 6 About Copyright .......................................... 3 Unpublished plays Magazine reproductions About Contracts .......................................... 6 Artists - gallery agreement Meetings ................................................. 2 Orchestra management Recent Publications ................................. .. 2 Legislation ............................................... 4 Public employment of artists Historic buildings

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