Response from the Barnes Foundation

The Barnes Collection's move is not a 'theft' in any sense of the word

As the readers of Mr Feigen’s article are no doubt aware, considerable ink has been spilled on the subject of the upcoming move of the Barnes Foundation’s collection to the Benjamin Franklin Parkway in Philadelphia. My purpose in writing this response is not to add to that pool and merely retrace well-trodden ground. As the recently appointed General Counsel of the Barnes Foundation, however, as well as a long-time student and observer of the legal history of the institution, a response to some of the principal mischaracterizations and inaccuracies perpetuated by Mr. Feigen’s article is called for.

First and foremost, Dr Barnes’s will has not been “violated” or “broken.” This sweeping and oft-repeated accusation is inaccurate in both its oversimplification of the applicable legal doctrine and its implicit characterization of the effect of the Montgomery County Orphans’ Court decision to permit the reinstallation of the collection in a new building in Philadelphia. The doctrine of deviation applied by the court was developed to deal precisely with the situation where compliance with the literal terms of a trust indenture (the operative document at issue here) are either impossible or, due to circumstances not anticipated by the settler, would defeat or substantially impair the accomplishment of the purposes of such trust. The court’s charge was to divine, as best as possible, the intent of Dr Barnes and assess whether the Board of Trustees’ plan represented the least drastic modification necessary to preserve the institution and further the purposes of the Foundation established by Dr Barnes. Following years of litigation, including weeks of hearings, review of voluminous archival materials, and consideration of the numerous alternatives that had been put forth, Judge Ott came to the reasoned conclusion that the move was consistent with and furthered the primary mission of the institution established by Dr Barnes. Accordingly, and quite simply, the ultimate arbiter unequivocally determined that the move did not violate Dr Barnes’s trust.

Second, Mr. Feigen goes on to state that “[t]he public is the victim” of the move. In fact, the public will benefit from the move and many more will have access to the Barnes Foundation’s collection in the Philadelphia location. Indeed, Judge Ott observed that, based on the record, “Dr. Barnes expected the collection to have much greater public exposure after his death.” Although appealing in its capacity to fan the flames of opposition, Mr Feigen’s characterization ignores the complex reality that the Board of Trustees faced in discharging its fiduciary obligations to save the Barnes Foundation from bankruptcy in its Merion location given the institution’s long history of protracted and expensive litigation, and the impact of this legacy of discord on the ability of the institution to garner the significant philanthropic and/or governmental support needed for viability in its original location. In addition, contrary to Mr Feigen’s suggestion that the project is an untimely and inappropriate drain on public resources, the new facility on the Parkway will bring significant economic benefit to the community. The construction phase alone is projected by an independent consultant to have a direct benefit to Philadelphia and the region of approximately $150 million.

Third, Mr Feigen summarily observes that “[t]he residents of Merion want the Barnes to stay.” Although this sentiment may reflect the views of a group of vocal opponents, there is hardly unanimity on this point. Any attempt to characterize the opinion of the residents of Merion with such a broad brush glaringly ignores the long-standing campaign waged by certain factions of the local community committed to hamstringing the Foundation’s operations, which contributed, in large part, to the conditions that led to the outcome Mr Feigen and others have attempted to oppose.

Fourth, Mr Feigen opines that Lincoln University has abdicated its “inherited responsibility” with respect to the Barnes Foundation. This similarly ignores that fact that Lincoln University continues to have a significant role in the governance of the Barnes Foundation through the nomination of members of the Board of Trustees. Moreover, Mr Feigen’s comments entirely discount the fact that the Barnes Foundation and the university are working together more closely now than ever before, including collaborating on joint educational programs in the visual arts.

Lastly, Mr Feigen attempts to indict the Barnes Foundation for insufficient efforts to find an alternative to the move. The considerable efforts by the Board of Trustees to find alternative approaches, and why those efforts were not fruitful, have been detailed elsewhere, so I do not reiterate them here. What is worth reiterating, however, is that the move is not a “theft” in any sense of the word but, instead, the legitimate result of a legal process involving complex issues, the practical outcome of which is no longer in question, despite efforts of some to re-litigate the matter in the court of public opinion.

The writer is General Counsel for The Barnes Foundation

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17 Jun 12
21:32 CET


I too have been to the Barnes. No one, has EVER logically articulated more than a vague explanation for the value of the haphazard flotsom interspersed among the paintings. The arrangement was no better nor worse than 1000 other arrangements that might have been conceived, certainly nothing worth setting in stone as Barnes wanted. While Dr. Barnes was a very intelligent man with a remarkable sensibility for outstanding art, he was an eccentric with an overarching ego. Some of his criticism of the conventional art world may have had validity, but his alternative solutions were no more logical or useful. He sequestered a fabulous collection of artwork in a comparatively remote location erecting arbitrary barriers to its accessibility based on his neurotic social views. He had the right while alive to live any way he chose, but in death his continued control is illogical and counterproductive.

19 Apr 12
17:37 CET


Didn't anyone think of moving the house? It can be done, and would have cost less than the protracted litigation.

12 Apr 12
14:46 CET


I dont care how many legalistic words Mr. Miller uses it's still done for all the wrong reasons, to make money for Phila. I also agree that the money would have been better spent on the deplorable conditions of the city's schools. Just like the making of the Avenue Of The Arts on Broad st. they want to make the Parkway the Art Avenue. When city officials and lawyers don't know what to call it it' always for the greater good of the city, bull shit.

15 Nov 11
15:24 CET


as an art lover I find it sad that the people who want to move this collection cannot appreciate that the original site and position of each painting and work of art in a collection all add up to the experience of a visit. Having seen the BBC4 programme last night I am convinced that The Barnes Foundation at Merion must be saved. Small is beautiful. If visitors are not willing to go out of their way to get to see this gallery, they are not worthy of being allowed in.

15 Nov 11
15:23 CET


The move is excellent - making this glorious collection more accessible. The new curators need to reflect on Mr Barne's way of presenting and displaying his collection - the manner of display is an art object in its own right.

18 Jul 11
14:43 CET


Thank god we were able to visit the Barnes in its original state!! I will never visit th new "musuem", nor will I visit the Phil. Museum of Art- frankly I see them as complicit in this tragic conspiracy! Shame on the city of Philadelphia and the state of PA!!! After my visit to the Barnes I raved about it to everyone I knew.... now I have a different message- don't go!!!!

19 Jun 11
19:12 CET


I work in the underground art world. I will make sure each and every person I come in contact with learns about the tragedy of Barnes's legacy. I will never step foot in Philadelphia until the govement does the right thing. Never.

8 May 11
23:54 CET


His nemesis got his wish. While the Mellon collection was never to be moved, Barnes' will be. Pathetic. That the city of Philadelphia is so corrupt. I will never spend a dime there.

6 May 11
15:40 CET


It seems to me great attempts were made to keep the Barnes foundation in it's Merion location. All of which were resisted by the local residents. The concept Barnes invisaged is "art is life" lets hope it can live on in it's new location. You never what you have until it's gone

2 May 11
15:28 CET


Last week opposing counsel attempted to state my feelings in contradiction to testimony of several of my closest friends and confidants. I'm glad I'm still alive to set the record straight which is not an opportunity availed to Barnes. Unfortunately legal arguments don't always equate to common sense decisiveness nor logic. If the foundation esq. is so fixed in position then is he inclined to be so steadfast in the release of executive session notes pertaining solely to this affirmative that all was done in the best interest of The Barnes. With agreement of parties this does not violate privilege and will demonstrate intent. Though this is unlikely, more disclosure of finances and operating budgets seems to be necessary to support the defense of the boards decisions and intent. It's a tough sell to state the age and limited access of the building determines the decline financially when there are numerous places still standing with the same circumstances yet less of a draw vs The Barnes

16 Apr 11
21:15 CET


I lived fairly close to the Barnes in west/central NJ till 1997. I was able to visit the Barnes 3 times after it be came more accessible in the early 1990s. The Barnes was the art experience of a lifetime. It is a total shame it is to be moved. The exibits planned and executed by Dr. Barnes will never be reproduced elsewhere. What a loss.

20 Feb 11
16:43 CET


Anyone else appreciating the irony of the Philadelphia government staunchly supporting an 'illegal' MOVE organization?

14 Feb 11
2:3 CET


SHAME SHAME SHAME on you Mr Miller and all of those involved including Rendall, Perleman , PEW Foundation and all others involved in Stealing the paintings from where Dr. Barnes wanted them to be seen. Not in some money making for Philadelphia. And shame on Pennsylvania for raising over 100 million when the schools in the city are a nightmare. Use that money and building for the children of Philadelphia and leave the Barnes where it was supposed to rest forever.

12 Feb 11
14:14 CET


I thank God that I do not live in Pennsylvania. Boycott the Barnes.

7 Feb 11
14:56 CET


What is left when the legacy to provide a learning environment and access to a man's lifelong passion for true artistry is taken? What is left? The 'art' of the game. Here is my humble "thank you" to Mr. Barnes and all of those who fought the good fight.

16 Dec 10
8:44 CET


This is a tragedy for Philadelphia. The new museum will always stand as a monument to deceit. Perhaps the Barnes itself needs to be substantially rebuilt, with new mechanical systems to safely house the art over time, but this could easily be done. No excuses can justify what does, in fact, amount to theft.

8 Nov 10
2:20 CET


As an art student i feel a huge connection to the Barnes Foundation and after watching "The Art of The Steal" i think that the art world and Dr.Barnes have been disgraced. I am saddened.The move to Philadelphia is an insult to Dr.Barnes' legacy and goes completely against the entire mission of The Barnes Foundation. I only wish i can visit it in its "home" as much as possible before its placed aside those other institutions with their sub-par collections.

20 Oct 10
19:27 CET


The whole thing has a fishy smell even from 1000 miles away. It seems very clear to me that Barnes's intent was for the collection to NEVER move from where it was. And as far as the Foundation's solvency, d'ya ever wonder what their endowment would have looked like without incurring all of the legal expenses?

13 Oct 10
15:5 CET


Personally I'm happy to see what's happening, as sad and tragic as it is. What goes around, comes around. When the SAME people were literally plundering (looting the art of oh let's say what the English have named as Iraq, that was not really a big deal. That was happening somewhere else. When after the collapse of USSR/Warsaw pact states the SAME people were happily stealing everything they could get their dirty hands on - oh well, sad things happen. Now the very same "people" are chewing at the heart of American art treasures. Not surprising in the least.

13 Oct 10
15:4 CET


I just watched "the Barnes movie" and came away from it with a slightly soiled feeling. Like I'd been had. Truly, I am in sympathy with the fine intent of people like Dr. Barnes. However, the real villains here are the idiots at Lincoln University who first were handed billions of dollars worth of paid for Art and Real Estate, and who then proceeded to screw up the situation so badly that SOMEBODY had to step in and take it over. Will the building and grounds, at least, be preserved?

13 Sep 10
15:57 CET


Ms. Schlegel said it best. And yes, Ann, there are still people out there who share Dr. Barnes' vision and I hope you do get to meet them, for they do exist. They are the independent thinkers who hold to their truths and produce the greatest thoughts, inventions and art the world has ever known. They do not care for the opinions of others for they are driven by a much deeper resolve to produce the best within them. And, yes, you will someday meet them.

27 Aug 10
1:28 CET


For me, an artist and an artist who makes her living by creating and selling paintings ... it makes me sad to see that such a beautiful experience will be coming to an end. What is the sense of a will if it is not to be honored ? I will be visiting the Barnes Foundation again, and also alone, just to stand before the great collection of a man who had the vision and passion to recognize it. I wish I knew a person with that same vision today. Thank you Dr. Barnes ...

26 Aug 10
1:33 CET


Platitudes & legal double talk strongly reminiscent of Orwell's "1984" aside, two things seem clear to this out of state observer: First, the vast majority have had no difficulty in understanding that Dr. Barnes specific intent and the explicit terms of his will have been grossly violated by the Pennsylvania power structure and courts. Second, that henceforth few(er) donors will leave major charitable bequests to institutions within the Commonwealth of Pennsylvania, knowing that the purposes for which they make them can so easily be disregarded in that State.

20 Aug 10
20:18 CET


So your argument is, the will is not valid because it contradicts itself, therefore someone has to interpret the will at will? Well I have hard time believing that his will could not be kept as it was thought out, keeping the Barnes primordially as a school and opening 2 days a week to the public sounds pretty simplistic to me. To the people who claim that the public must have access to the collection, let's not forget that it is PRIVATE collection amassed by a single individual with no help from any institution. Let's see how you like me helping myself out of your fridge whenever I feel all that food is a risk for your health. Ridiculous

19 Aug 10
16:50 CET


Mr Barnes' was clear that he wanted his paintings and artifacts to remain where they were. Period. End of Discussion. Sure, it would be nice to have the paintings moved to a more accessable building, but that's not up for discussion. The owner said no, during his lifetime and in his will. Barnes must be rolling over in his grave right now. During Mr Barnes' life he wouldn't even let museums borrow his pieces for temporary exhibits. He hated elitist museums and rich socialites. Now his collection will be run by the same people he hated and turned into a museum such as those he hated. Sad.

19 Aug 10
20:50 CET


There is one single shame in this. A man's private collection, and his stated and clear vision for it was violated. This was his life. His great love. His commitment and wish to have this collection serve as a testament to his hard work and private endeavor is tantamount. Simple greed, ego, and spite, along with consummate stupidity and hubris has allowed philistines to usurp a man's dream. If you care about the Barnes, go now while it is in Merion. And never give a penny of admission or support for it in the Parkway. What has happened cannot be reversed, but we still must pay tribute to the integrity of this collection by paying tribute to Mr. Barnes. We are talking about a collection, when we should be talking about the man.

19 Aug 10
20:52 CET


Incredible. Mr. Black from Toronto, your experience at the Barnes sounds like such a nightmare! I'm sure Cezanne appreciates all you went through just to take a look at his paintings. My goodness! I'm so glad this part of cultural history is being destroyed and reimagined so folks like you don't have to shamble around looking like dopes, going from one door to another! Egads! Van Gogh probably felt the same way when he was doing those oil paintings he did. I'm sure the rooms were stuffy and some of his sitters look like they might have smelled a bit. Not to mention "having" to find just the right yellow! Good for you Mr. Black! Mattisse may have been impressed with Barnes digs, but we know better!

26 Jan 10
17:33 CET


In 1917 Dr. Barnes' good friend John G. Johnson died and left his home and over 1000 paintings to The City of Phil. In 1933 the Pennsylvania Museum of Art petitioned the orphans court and won. The result John's house was torn down and the collection was moved into the PMA. Dr. Barnes' "intention" was that this did not happen to his collection. Well it is happening. In time (when we have all forgotten) the "new building" will not be feasible for some reason or another and the collection will move to the museum The bottom line is The Barnes Collection is 10 to 30 billion dollars worth of assets. That much wealth attracts corruption. Never mind that the collection was one of the world's greatest treasures, where it sat. The historical significance becomes insignificant when politicians and those who financially support them become involved. It is all about the money. What a sad event.

19 Jan 10
3:0 CET


There goes a legacy. The Barnes trust was explicit as to placement on the wall of each piece. He tried his best to defeat the thieves. What he U.S. has come to is to defeat character as the test of a person, and to substitute cleverness. So conceptual.

17 Jan 10
21:29 CET


Well, they say "Art's a Whore" after all. The hot, seamy hands of the Money are all over this one aren't they? The Barnes Move is one of the darkest chapters in our cultural history. The State Actors, to the extent they intervened in this, I contend, broke trust with their historical obligation to serve the greater good & fulfill the "Social Contract"- which has been clearly identified in the Dartmouth College case to be the enforcement of contracts - Not State sanctioned deviation. Amid the majestic silence of the towering trees & hum of the bumble-bees in the fragrant fresh-air gardens, The Barnes in Merion is a place that contains answers to questions we, as a Society, haven't yet learned to ask. We should demand that Prez Obama invoke the Antiquities Doctrine & bring this living part of American Culture under the protection of the Federal Government. I just wanted to give this sad Move project a public plug so it can be unanimous and properly "appreciated" by everyone.

16 Jan 10
15:40 CET


This is a wonderful article. The things given are unanimous and needs to be appreciated by everyone. cruz

16 Jan 10
15:34 CET


"Legal?!" R-U serious? The case of Dartmouth Coll. v. Woodward, established that State Actors cannot assist or encourage breach of private agreements. When Rendell promised the po Black folks at Lincoln that he would assist them in future fund raising efforts if they gave up control to Rich out of towners and other white folks, didn't he violate the Dartmouth College doctrine? AND, WHAT ALTERNATIVES did the Movies pursue? In his testimony Move Trustee Harmelin ID'd no alternatives did he? He was Specter's reelection Chair & Fumo's law partner, but he couldn't find state or fed $$ to save The Barnes? You Movies should be ashamed, you're soaking txpyrs & philanthropies for $$ when Museums all over PA & country are at risk. Do you people honestly think the Move serves art or education? You say you're gonna help the economy, but you know damn well that Museums are sucking wind across the country. With respect sir, your comments are inane. PS R-U also posting as the Toronto pinhed?

15 Jan 10
9:30 CET


I am a 75 yrs. old collector who has visited the Barnes many times since I was a teenager. Since over 60 yrs. I spend much time visiting museums & art spaces all over the world. I have participated either as curator, planner or advisor with 145 exhibitions in many countries. My uncle sold numerous paintings to Barnes. Visiting the Barnes is a unique experience. Nothing can be compared to it. Obviously there is the great art. The fact that it is blended with second and third rate paintings is not important. The polemic and arbitrary way that these paintings are presented are part of art history. They reflect an important art collector's views & whims. I am not interested in the legal (?) arguments put forth so far. Too much time & money has been wasted by incompetent and dishonest people. The present "solution" cannot come even close to maintaining the unique atmosphere created by Barnes. This atmosphere itself must be maintained. It belongs to all of us. Destroying it is criminal.

14 Jan 10
19:2 CET


In 2007, I contacted the Barnes a month prior to my trip to Philadelphia and was informed that bookings were sold out for the next 40 days. A couple of months ago, online ticket availability was better. However, when I actually visited Merion in November, entering the museum was an ordeal that made me feel like I was being admitted into a prison. As a pedestrian, I had to sandwich myself in a line of automobiles in front of the gatehouse booth. The guard had to make a call to confirm that my name was on the proper list. Next, I was directed to pick up my ticket from another booth at the garden side of the house. This in hand, I had to walk around the museum once again in order to enter though the main door, where my ticket was closely inspected. I've made thousands of visits to museums over the years - including sessions in print rooms, libraries and storage vaults. Never have I experienced so much foot-dragging as at the Barnes. Let us pray that the move to the Parkway comes swiftly!

14 Jan 10
18:39 CET


It is shocking that Mr. Miller has the nerve to pair the Board of Trustees with the concept of their "discharging its fiduciary obligations" to save the Barnes Foundation from bankruptcy. On the contrary, with the Trustees' crimminal negligence over many years and an absense of any modicum of judgment they were the enablers for the local foundations to steal it. The courts have now blessed a path for other restricted bequests to be broken: poorly manage the institution, bring it to a financial crisis, plead dire straits and then receive the modifications you want. This is a story of crimminal behavior, greed, and power. Even Dickens would have found it difficult to construct such a tale of woe with so many seemingly high minded people and institutions keeping their heads high while selling their souls.

14 Jan 10
18:17 CET


I called last week to obtain a reservation for my first ever visit to the Barnes Collection. It couldn't have taken more than a few minutes and I received an email confirmation later in the day. Although I haven't on the premises yet, obtaining a reservation is simple, straightforward & quick.

14 Jan 10
18:13 CET


Whatever Mr. Miller dreamed up in his mind, keep the Barnes museum where it is. There is nothing more to add what Evelyn Yaari said except to say Mr Miller needs to be taught about art and not money. Judges do make bias mistakes.

14 Jan 10
18:10 CET


I have never had a problem visiting the Barnes. Like other incredible must-see places, such as Hillwood , in Washington, DC and Lotusland in California, it takes a phone call or an email to book a visit. Gosh what hardship. Been to Florence to the Uffizi lately without a ticket and a fixed entry time booked in advance? Ever tried to see the Great Pyramid of Giza without being in line before dawn? Not your tour guide but you, personally for your ticket for that day? I doubt those touting the increased access will ever show up if their needs for immediate gratification are so intense and that has kept them from seeing Barnes' sensational collection which is just a short train ride and walk away from Philly in Merion!

13 Jan 10
15:29 CET


While this decision is certainly one that elicits emotional responses (see from the three (!) people above) - it undoubtedly furthers the purpose of the foundation, which in large part must certainly be concerned with public access to the collection. Over the past three years, I have visited Philly over a dozen times, and have never been able to visit the Barnes due to its location and archaic ticketing process (i.e. scheduling tours in advance). The move to a larger facility in a highly accessible, highly visible section of this wonderful city is a net plus for everyone. Let the haters hate - this is a good move IMHO.

11 Jan 10
15:28 CET


Finally, Mr. Miller suggests that everyone should just shut up about this. A healthy democracy should foster debate, despite the formidable power of Pew money to affect the willingness of people to speak out. The proposition that silence is an appropriate response to the biggest controversy in the art, culture, and historic preservation communities is wishful thinking, but dead wrong. Evelyn Yaari, Member, Friends of the Barnes Foundation

11 Jan 10
15:28 CET


Here is what then Attorney General of Pennsylvania Mike Fisher said of the Lincoln/Barnes Board relationship in the soon-to-be-released documentary, The Art of the Steal (emphasis added): “It was pretty clear to me that they (Pew, Lenfest, Annenberg Foundations) weren't going to give 50,70, 100 million dollars without getting control of the Barnes board. I had to explain to them (Lincoln's Board of Trustees) that maybe the attorney general's office would have to take some action involving them that might have to change the complexion of the board. Whether I said that directly or I implied it, I think that they finally got the message.” Here’s what Albert Barnes wrote about the site-specific Barnes Foundation: “These two aspects (the arboretum and the art collection in the gallery building) of one and the same purpose cannot be separated, they are one and indivisible…”

11 Jan 10
15:28 CET


What is needed is an honest person in a position of authority with the courage and integrity to stop the Barnes move. Here is what Judge Ott wrote about the relationship between the Barnes and its community: “It is also clear that The Foundation has no interest in reaching out for the olive branch extended by the Township…” Who’s “ham-stringing” whom, Mr. Miller?

11 Jan 10
15:25 CET


The bottom line is not complicated. The operating deficit of the Barnes Foundation hovers just under $1 million. Do you, the Barnes Board, Rebecca Rimel, and Gerry Lenfest honestly expect people to believe that the only workable solution is to destroy an unparalleled site of American cultural heritage for $200 million in public funds and tax-deductible contributions? People are not buying that old line. The access has always been good to Merion and can be easily improved, the history is only there and cannot be transferred, the money is there to support preservation over replication if the institution will normalize.

11 Jan 10
15:22 CET


Despite the apparent breadth of technical knowledge on the Barnes legal case, Mr. Miller seems not to grasp a couple of fundamentals. 1) People know a racket when they see one. 2) The steady chorus of opposition from around the world continues precisely because the legally permitted dismantling of the Barnes Foundation has not and never will achieve true legitimacy. 3) The use of scarce resources to destroy an existing asset that is eligible for National Historic Landmark status is indefensible, especially in a severe economic downturn.

11 Jan 10
15:30 CET


A factoid of interest, re barnes-- the trustees spent $8 million in non meritorious lawsuits persecuting neighbors and township equally. At the time their endowment was approx, $10 million. Deviation anyone?

11 Jan 10
15:29 CET


Mr. miller instructs us on the doctrine of deviation. Deviation was planned for and expected by the "philanthropists", and politicos, by use of lawsuits, secret appropriations, profligate spending, no fund raising, etc. The whole thing was secretly planned, in advance.

10 Jan 10
17:8 CET


How much money has been wasted by the Barnes Foundation on people defending their untenable position? Probably enough to keep the Barnes in Merion forever.

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