In previous visits to The Faculty Lounge, I reflected on the justification of "deaccessioning rules," or the professional rules governing the removal of items from a museum collection. While many different professional organizations have promulgated deaccessioning rules, the most prominent are governing members of the American Alliance of Museums and the Association of Art Museum Directors. While the AAMD rules are slightly more restrictive than the AAM rules, they are similar, and both prohibit their members - well, any museum really! - from deaccessioning an item for the purpose of generating revenue. Essentially, deaccessioning rules provide that museums can sell items for the purpose of generating funds to buy different items, but can't sell items in order to generate revenue for any other purpose, even if the museums is in dire straits.
Conventional wisdom holds that deaccessioning rules are rooted in objection to the Metropolitan Museum of Art's sale of many items from the de Groot collection, in order to buy Portrait of Juan de Pareja (c. 1650) by Spanish artist Diego Velázquez. I suggested that there might be other reasons for deaccessioning rules. For example, they seem to have the effect of preventing museums - typically charitable organizations - from realizing capital gains on appreciation of works in their collection, and ensuring that any such capital gains ultimately go to private collectors. Curious. One wonders if that is merely a coincidence.
In any case, deaccessioning rules also have the unfortunate consequence of occasionally causing distressed museums to go bankrupt and dissolve, despite sitting on collections of enormously valuable artwork. The "deaccessioning police" argue that this is all as it should be, and that museums should go out of business, rather than doing something as "repulsive" as selling a work of art in order to save the institution. I find their argument ... comically weak. And I am hardly alone. Most notably, Donn Zaretsky of The Art Law Blog has been lampooning it mercilessly for years. To be honest, it's a bit like shooting fish in a barrel, given that the deaccessioning police cannot seem to provide even a colorably coherent explanation of why it is repulsive to sell a work of art for the purpose of saving a museum, but totally fine to sell a work of art because the museum wants to own a different one.
Anyway, the coronavirus pandemic has brought the issue to a head, as museums find themselves suddenly deprived of ticket sales and struggling to stay afloat. In a probably inevitable about-face, even the resolutely intransigent AAMD made a grudging concession: for the next two years, if museums use investment income from revenue generated by the sale of artwork for the purpose of operating expenses the AAMD ... won't punish them. Or rather, as Zaretsky observed, it's still repulsive, but the AAMD will hold its nose? One suspects the rules will be hard to revive, but I guess we will see.
In the meantime, I posted a short article titled "Against Deaccessioning Rules" to SSRN, which will be published in the Creighton Law Review. Here is the abstract:
This article surveys the rules that professional organizations have promulgated governing the deaccessioning of works of art by art museums and concludes that that those rules are unjustified. Specifically, it argues that deaccessioning rules prohibiting museums from deaccessioning works of art for the purpose of generating revenue are not justified and are inconsistent with the legal duties of board members. It argues that museums should sell art when it is in the best interests of the museum.
The article is still a draft, and of course I welcome comments and suggestions.
Comments