Art Market

There’s More at Stake in the Berkshire Museum Sale Than 40 Artworks

Nicholas M. O’Donnell
Nov 21, 2017 6:47PM

Protestors at the Berkshire Museum in August. Photo by Gillian Jones for the Berkshire Eagle.

When the Berkshire Museum in Pittsfield, Massachusetts, announced in July its plan to sell 40 works of art from its collection, it drew a sharp reaction from the art and museum world. That decision, and the legal disputes that have followed involving donors, community members, and the Attorney General of Massachusetts, have underscored misunderstandings about the scope of museums’ power to buy and sell art, and the rules by which trustees’ conduct should be judged. Not every museum is going to be on the cutting edge of interactive programming. But those that are blessed with historically significant collections cannot cashier them during down times. The collective market value of museums’ collections is astronomical, and to give into that temptation will make it impossible to draw a line at the next sale, or the one after that.

“Deaccessioning” is a word seldom heard and more seldom understood outside the museum world. Stripped of its artifice, however, it is merely the negative form of “accessioning,” or the process of addition. The very existence of the word as a term to describe art is telling, however. Car dealers or retail stores don’t “deaccession” their inventory—they sell it. Why do museums have a five-dollar word where a 50-cent word would do? The answer lies in museums’ unique role as stewards of cultural property. To remove an object entrusted to a museum from its collection requires a different conception of the transfer of ownership.

This is not merely a matter of semantics. Non-profits’ trustees or boards of directors act as fiduciaries under the law. A fiduciary is someone who agrees to the utmost duty of good faith in service of someone or something else. Applied to the care and management of art, it is readily apparent why even considering the removal of a work of cultural property implicates a museum or a trustee’s fiduciary duty. That work of art was acquired to be shown to the public. Moreover, museums are chartered, supported, and subsidized by the public, and even with a collection in place they rely on the public for additional support. Whether a museum’s endowment is $100 million or $1, it exists to support a mission that the board must pursue as though it had no endowment, which must be managed by treating every dollar spent as a dollar that must be obtained from somewhere. Fundraising is exhausting and not particularly enjoyable, and it involves going back to the well year after year. That is what being a trustee means.

It is important to note that deaccessioning does not have this unique terminology because it is categorically forbidden, either as an ethical or a legal matter. The remarkably unified view of how deaccessioning should and should not happen is reflected in guidance published by the Association of Art Museum Directors (AAMD) and American Alliance of Museums (AAM). These guidelines state that a museum should only consider deaccessioning a work of art when its physical condition or role within the collection (as a medium, or genre) has become obsolete. New York is the only state that has codified similar principles in the regulations of the Board of Regents, which, beyond supervising educational activities in New York, also has considerable oversight over nearly all the state’s museums.

Yet even in states where the test of trustees’ behavior is a broader question of fiduciary duty, the question is relevant to the legal standard in addition to the ethics. When the Corcoran Gallery of Art asked court permission to modify its governing trust to merge with the National Gallery of Art and George Washington University, the court approved the petition in 2014 in large part because it recognized that in the absence of a merger the museum might feel compelled to sell parts of its valuable collection. The court treated that outcome as categorically unacceptable because of the faith that it would break with the community.

The closest parallel to what the Berkshire Museum is trying to do is the scandal that engulfed the Rose Art Museum in 2009. The Rose is Brandeis University’s spectacular museum of modern and contemporary art, with an incredible collection of post-war American works in particular. It was created in the 1960s and nurtured by a dedicated core of supporters and donors who gave most of what is now the collection there. In 2008–09, Brandeis faced a sharp retraction in financial support from major donors in the wake of the financial crisis generally and the Bernard Madoff fraud specifically. In 2009, the board and the university’s president announced that it intended to liquidate the museum entirely to prop up the museum’s finances. The museum community reacted with unified horror. A group of the original donors sued the museum, the university was engulfed by embarrassment, and after a long and bitter public debate, never sold any of the paintings.

The reaction by those donors—many of whom were very much still alive—intones what is in store for the Berkshire Museum absent a change of direction. Without question, museums need flexibility to modify their collections to suit their mission. But if a struggling artist’s collective needs a new delivery van, they don’t sell the copyright of their most valuable work to buy a sports car. That is what the Rose, and now the Berkshire Museum, tried to do.

The conversation about the Berkshire Museum’s proposed deaccession would have been very different had there been full and transparent consideration of donor intent and, more fundamentally, an assurance that the sale proceeds would be to modify the collection by purchasing other art. But the museum is seeking to have it both ways. On the one hand it claims that financial emergency compels the fire sale (it does not), and on the other hand it hints that perhaps this deaccession is no big deal because the museum is changing directions—while it disavows the oversight of the Attorney General that is mandatory for any such fundamental changes to the institution. It is time for a better plan.

Nicholas M. O’Donnell
Nicholas M. O’Donnell is a litigation partner at Sullivan & Worcester LLP in Boston and New York. He is the author of the recent book _A Tragic Fate—Law and Ethics in the Battle Over Nazi-Looted Art_.

The author represents a group of members of the Berkshire Museum that has sued to prevent the sale of the works of art it has proposed to auction.