Via Sotheby’s

I’ve been clear for some months now that I consider the Berkshire Museum’s current deaccessioning plan to be a very, very bad idea. But is it illegal?

The opponents of the sale would certainly love it to be, and now they have their wish: a lawsuit has been filed (the whole thing is here, if you want to read it for yourself), and it’s as strong as anybody could have hoped.

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Which means that now is as good a time as any to revisit the question of when deaccessioning is good, when it’s bad, and when it’s downright illegal.

As Nicholas O’Donnell points out, it can easily seem, when you start looking at deaccessioning, that there’s something of a double standard at play. To take a very germane example: While the Berkshire Museum finds itself in the midst of a national firestorm, the Museum of Modern Art, in New York, is a rich and highly-respected institution with no deaccessioning controversy whatsoever. And yet while the Berkshire Museum is selling off 40 works, MoMA is selling off 400!

The difference, of course, is that MoMA is selling from a position of strength, and is putting all of the proceeds into an acquisition fund.

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Such deaccessions are going to be necessary at any institution with both a curatorial vision and a steady stream of donations. The donations will never match up perfectly with the vision: there will be works you want and don’t have, and there will also be works you have which you don’t particularly want. Deaccessioning, when it’s done well, turns the irrelevant into the relevant: you’re basically swapping extraneous pieces for art which is going to be central to your program.

That said, O’Donnell has a good point: the pieces being sold by MoMA are leaving the public sphere, in a way that surely was not intended by the original donors. While the deal being done (wanted art for unwanted art) is a good one for MoMA, it’s not a good one when it comes to people who want to see the art being sold. Which is why I’ve long been a supporter of the Ellis Rule, which states that the museum selling the works must “ensure that the institution or individual to whom you sell commits in some binding form to equal or higher conservational standards and equal or higher public access”.

The Ellis Rule would undoubtedly make it harder for museums to sell work they no longer much wanted – but, by the same token, it would also make it easier for the same museums to buy work they did want. Net-net, it would surely be a gain for the system as a whole.

The Ellis Rule would also move museums helpfully towards the views of their curators, and away from the views of their boards and donors. By creating a much more liquid market for museums to effectively swap art between each other, it would make it much easier for museums to be able to curate the kind of collection which makes sense for the institution, rather than simply being saddled with the personal whims of their board members.

Most excitingly, it would even solve the problem of bad deaccessioning. Here’s the rule in full:

You can deaccession and spend the money on whatever you want – a new roof, working capital, education programs, or even a boffo night out with your chums on the board — provided that you ensure that the institution or individual to whom you sell commits in some binding form to equal or higher conservational standards and equal or higher public access.

If Van Shields, at the Berkshire Museum, wants to ruin his institution by selling off its heritage, then that’s bad for the Berkshire Museum – but by the same token, under the Ellis Rule, it would be good for whichever museums ended up with the works being deaccessioned. The Rockwells, for instance, could move up the road to the Norman Rockwell Museum, where they would be on display more often and where they would fit much more neatly into an overall curatorial vision.

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It’s also worth noting that the Ellis Rule is entirely consistent with consigning works to Sotheby’s: the auction house could either sell the works privately, under the constraints of the Rule, or it could even, conceivably, run a public auction where all bidders needed to commit ex ante to maintaining public access for the works in question. As for the first half of the clause, meeting that would be very easy: just about any buyer of these works will surely have higher conservational standards than Van Shields’s Berkshire Museum does. It’s a nice advantage for museums with fewer resources: they get to choose from a larger potential pool of buyers.

The current guidelines from the American Association of Museum Directors are not the Ellis Rule: they’re entirely silent on the question of who can or should be able to buy pieces being deaccessioned. Still, they’re a lot better than nothing. Underlying them is a simple principle: You can make your collection better (by swapping works you don’t want for works you do want), but you can’t make your collection worse. And that’s not a bad way to look at deaccessioning more generally: If it makes your collection better then it’s OK; if it makes your collection worse, then you shouldn’t do it.

Museums do break that rule, both in letter and in spirit. It doesn’t have the force of law. But it’s a very useful rule to have, all the same, because breaking the rule comes with non-negligible costs. The more opprobrium that a museum will suffer upon breaking the rules, the higher the bar which needs to be hurdled before the director and the board will sign off on such an action. And when it comes to selling off a museum’s collection, the bar should be high. Sometimes, a director like Van Shields will come along, happy to thumb his nose at the entire museum industry and even refusing to meet with his own state’s cultural council. But most of the time, directors are trying to do the best for their institution and their community. The fact that the AAMD guidelines are simple and easy to understand makes it much more likely that directors will try to work within them, rather than feeling comfortable selling off the family silver whenever they face a budget crunch.

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Still, breaking the AAMD guidelines isn’t illegal. So what’s the case that the Berkshire Museum is breaking the law?

The heart of the complaint is to be found in the Massachusetts statute which created the museum in the first place, which says that the museum’s collection must be maintained “for the people of Berkshire County and the general public”. Essentially, the complaint says that the museum is bound by legislation, and that the legislation is stronger even than the AAMD guidelines.

Similarly, the museum is bound by its own contracts: When it commissioned site-specific work from artist Tom Patti, it agreed in writing that it wouldn’t move or alter his works for 20 years unless he gave his express permission to do so. The Berkshire Museum’s plan, however, would certainly involve altering Patti’s works, and therefore it cannot be allowed to go forwards.

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The complaint is in the first instance being targeted at the Massachusetts attorney general, who is the only person outside the museum board who really has the authority to suspend the sale. But it should also make for compulsory reading for every member of the board of directors. They can suspend the sale, should they so wish, and they can even pick up a $1 million check for doing so.

It would behoove the directors, then, to get out in front of this issue now, and suspend the sale of the works pending a much more open, public discussion of how the museum should try to get itself onto a sustainable footing. If they start talking about selling off a few pieces in accordance with the Ellis Rule, especially if they stay in Berkshire County, then that would almost certainly satisfy most of their current opponents. Selling off your greatest treasures is never a good look. But some ways of doing it are still much better than others.