A Deaccessioning Decision Tree Grows in Brooklyn—Selling Museum Art in Hard Times

Sullivan & Worcester

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

As the world shut down in March and April, we addressed the changing landscape here and again in Apollo magazine. To review: in normal times the AAMD supervises its guidelines strictly by sanctioning museums, most recently and publicly at the Berkshire Museum for its 2018 sale of the best paintings in its collection. In April, however, the AAMD issued temporary guidelines allowing the spending of income earned on such proceeds (earned after the sale, not the capital gain on the object relative to its purchase price). At the time I wondered how big an impact that could have; it takes tens of millions of dollars in cash and investments to generate income that could contribute meaningfully to a museum’s bottom line. And the updated guidelines did not provide any further definition of what “the direct care of the museum’s collection” (the use approved by the new guidance) really means.

The Brooklyn Museum’s announcement provides the first public example to consider this approach. The museum announced explicitly that the intent is to create a pool of money that will generate about $2 million per year “to pay for the collection’s care.” Director Anne Pasternak told the Times that by this she meant “direct care, like cleaning or transporting an artwork” and “a percentage of the salaries of those involved in such care, like registrars, curators, conservators and collection managers.” According to The Art Newspaper, the sale will include Lucretia by Lucas Cranach the Elder, and ten other works including Courbet’s, Bords de la Loue avec rochers à gauche, Corot’s Italienne debut tenant une cruche, and at 15th century Saint Jerome by Donato de’ Bardi. Pasternak told The Art Newspaper: “While a few works have been exhibited, we have far stronger examples in the collection for which we are better known,” and that “[t]his step will enable these works to enrich other collections and reach new audiences, while allowing the museum to ensure that the core of our collection is protected in perpetuity.” There is, no doubt, some tension between marketing the art for auction as unique while defending the deaccession on the grounds that the pieces are redundant and will not be on view. Here too one imagines the museum trying to check the boxes about why a work may be sold while trying to maximizing the value of the institution’s assets consistent with other fiduciary duties. These are significant paintings.

Shortly before the Brooklyn news, the Everson Museum at Syracuse announced that it would sell a Jackson Pollock painting, Red Composition (1946) “in order to refine, diversify, and build the Museum’s collection for the future.” In order words, to buy different art. Syracuse disavowed any financial reason for the sale, and framed it as entirely curatorial.

For both Brooklyn and Syracuse, the AAMD is not the only consideration, because New York is the only jurisdiction that actually has any of these principles enshrined in a legal context. The New York State Education Department Board of Regents, which supervises most chartered museums in the State of New York, have promulgated regulations governing the chartering and operations of museums in the state, which include rules regarding deaccessioning. N.Y. Comp. Codes R. & Regs tit. 8, § 3.27 (2013). If a museum violates the Regents’ regulations, the Regents possess the authority to revoke the institution’s charter, and no museum may operate in the state of New York without a charter or other authorization from the Regents. N.Y. Educ. Law § 216.

The regulations require a written collections management policy that ensures proceeds from the sale of deaccessioned art are to be restricted in a separate fund and may not be used for any purpose other than “acquisition, preservation, conservation or direct care of collections.” Id. § 3.27(c)(6)(vii). The regulations provide that a museum may not deaccession art in its collection unless the art meets one of the following criteria: “(i) the item is inconsistent with the mission of the institution as set forth in its mission statement; (ii) the item has failed to retain its identity; (iii) the item is redundant; (iv) the item’s preservation and conservation needs are beyond the capacity of the institution to provide; (v) the item is deaccessioned to accomplish refinement of collections; (vi) it has been established that the item is inauthentic; (vii) the institution is repatriating the item or returning the item to its rightful owner; (viii) the institution is returning the item to the donor, or the donor’s heirs or assigns, to fulfill donor restrictions relating to the item which the institution is no longer able to meet; (ix) the item presents a hazard to people or other collection items; and/or (x) the item has been lost or stolen and has not been recovered.” Id. § 3.27(c)(7).

Each of Brooklyn’s (and Syracuse’s) proposals clearly satisfies these regulations as long as it has the required collections policy (every major museum I know of does), and Brooklyn’s explanation that the funds will be used for “direct care” is surely intentional. Yet the meaning of that terms remains very much a matter of interpretation. One could argue that nearly every expense at a museum is for the care of the collection because, despite the facile formulation by Boston Globe columnist Jeff Jacoby in defending the Berkshire Museum fire sale that a museum’s “greatest asset is its open doors,” nobody pays to go to an empty museum unless they are renting it as a function hall. The museum is there for what it holds, whether on display or out of view but accessible to scholars. But electricity that powers an HVAC system cares for the collection, doesn’t it? And “a percentage” of curators’ salaries brings to mind Lisa Simpson’s query to C. Montgomery Burns’s environmental bona fides: "Each copy contains a certain percentage of recycled paper. And what percent is that? Zero... zero’s a percent."

The question is not theoretical, as we wrestled with last spring. Museums have been mostly closed for six months. Bills are due. The Art Newspaper reported that the Royal Academy of Arts in London plans to cut forty percent of its jobs.

What’s the difference in how the museum uses the money? To the extent the objection is rooted in concern about the works moving from a museum into a private collection, the question is a fair one. In a museum with finite space, what is the point of having things most people will never see (his proposed pseudo-psychological explanation that they are “hoarders” falls short)? The answer is not simple, but fundamentally it should be because museums are repositories of knowledge and access for scholarship that requires thinking in a longer time horizon. At its best, a museum is not merely a just-in-time Wal-Mart display of what is most valuable or current. At the same time, people donate lots and lots of what could charitably be considered to be junk, which languishes in storage and diverts space and resources.

Also left unsaid is what the “two year” moratorium really means. Assuming the Brooklyn Museum sets up that $40 million fund, does the AAMD expect the museum after two years to go on an acquisition spree with the funds that have been invested and that are generating cash income? Brooklyn would (still) be in compliance with the Regents, but would it face AAMD sanctions if it sticks to the same approach? And will anyone care?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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