Deaccessioning USA

Robbing Peter to pay… who?

Deaccessioning rules have a strange interpretation of what constitutes the public interest

As Lindsay Pollock reports in the July/August issue and on, about a third of the works included in Christie’s 20 May sale in New York were from US museums. One of those museums was the Montclair Art Museum in New Jersey, which, in March of this year, issued a very strange announcement. It revealed that, having “been deeply affected by the current financial crisis”, it was putting into place a “Financial Security Plan”, one part of which was the sale of more than 50 works from the collection, including an important 1951 drawing by Jackson Pollock.

What was strange about the announcement was how the proposed deaccessioning was supposed to fit into the “Financial Security Plan”. Under professional standards promulgated by the American Association of Museum Directors (AAMD) and the Association of American Museums (AAM), US museums can deaccession only to buy more work—and Montclair was quick to point out at every turn that they fully intended to comply with that rule. But if the sales proceeds were to be used to buy more work—simply replacing one set of objects with another—how could that possibly help make the museum more financially secure?

In an article for the Wall Street Journal, critic James Panero seemed to have solved the mystery: the works were being sold to satisfy the requirements of the museum’s bonds. The museum’s director confessed to Panero that “we took out tax exempt bonds…[and] whenever you do that…you agree to have a certain amount on hand in an endowment fund. At times when our endowment is flagging, we go below that line. So this is a creative way to keep the endowment full and to stay above the water line…just so we are in the good graces with the bond covenants.”

But why couldn’t the museum be honest about the reasons for the sale? Why not just say “we have to sell some work in order to satisfy our bond covenants”? Why go through the charade of emphasising that the proceeds will be “used solely to purchase works of art in the future”?

The answer goes back to the rigid formalism of the AAMD rules: sales to fund the purchase of more art are okay, but sales for any other reason—to satisfy bond covenants, to fund an expansion, to save jobs, to keep from having to shut the museum down altogether—are strictly prohibited. This prohibition is usually justified by reference to the concept of “the public trust”. AAM President Ford Bell is fond of saying that “once an object falls under the aegis of a museum, it is held in the public trust, to be accessible to present and future generations.” It “should be inconceivable,” he says, “for a museum to raid the collections placed in trust with it.”

The problem with this argument is two-fold. First, if the works are held in public trust for future generations, then what are museums doing selling them? Why is Montclair selling 50 works, including an important Pollock? (The director of the museum downplayed the sale by pointing out that “you can take a bus and be in [New York City] in 20 minutes, where you can see lots of work by Pollock.”) As also reported in this issue, the Los Angeles County Museum of Art sold a cache of old master paintings at Sotheby’s on June 4 and the Orange County Museum of Art recently sold off a big part of its California impressionist collection. Why is it perfectly acceptable for museums to “raid the collections placed in trust” with them in this way?

And second, if the goal really is to make sure works held in the public trust stay there, then there’s a much simpler solution: require that museums sell only to other museums. (In fact, museum consultant Adrian Ellis made something close to just such a proposal in The Art Newspaper back in 2004.) If the Montclair Art Museum sold its Pollock to, say, the Metropolitan Museum of Art—just a 20 minute bus ride away!—it’s hard to see how “the public” would be hurt. The work would still remain “accessible to present and future generations”.

In fact, however, the best of the Lacma works were bought by a London dealer, and all 18 Orange County works went to a single unnamed private collector. Similarly, most of the Montclair works are ending up in private hands, no longer part of the “public trust.” Nevertheless, the AAMD ultimately blessed each of these transactions on the simple grounds that the resulting proceeds will be used for acquisitions (someday). From the AAMD’s perspective, it’s perfectly fine for a museum to raid its collection and sell work, just so long as the proceeds are put into an account labeled “acquisitions”—even if the particular acquisitions have yet to be identified, and even if it just so happens, by happy coincidence, that having the money sit in that account helps satisfy the museum’s bond covenants. But selling the same work, for other valuable museum purposes (improving education, upgrading facilities, staying open more hours, reducing admission fees, saving jobs, etc), is never, ever, under any circumstances okay. Unless you define the public interest as “keeping ever more art in storage at more museums” it’s hard to see how the public benefits from this state of affairs.

The author is a lawyer in New York who concentrates his practice in art law and also blogs at

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26 Aug 10
1:33 CET


Zaretsky's right, of course, that AAMD and AAM rules don't currently protect the public domain, but then, the profession's right that not all art currently in the public domain ought to stay there. This loophole lets worthy art leave because the rules help maintain the polite fiction that only cultural value matters, not financial value too, by keeping artworks off the balance sheet. But financial value is an important tool, and museums should use it as long as it enhances cultural value rather than undermining it. New thinking lets museums do that. Coaccession? gets double duty from artworks, financial as well as cultural. An artwork's Cultural Title? keeps cultural rights in the public domain while its Collector Title? privatizes storage and capital gains. Investing funds from Collector Title sales provides endowment income that typically far exceeds all cash gifts. Art should stay on the balance sheet, working in the public domain for the public good.

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