Issues around deaccessioning run to two fundamental and related questions: what are museums for and what does the term “public collection” mean? Is a public collection owned by the public, in trust for the public, or simply made available to the public? These questions have been at the heart of the scrutiny felt by museums who over this difficult past year have had to consider selling works from their collections to stay afloat. The answers vary across cultures, jurisdictions and institutions. The nuances of those answers are created by two considerations: one macro, which depends on the place of art in national culture, and one micro, dependent upon applicable laws and the constitution of each institution.
In this blog, we consider how France, the United States and the United Kingdom deal with deaccessioning by museums. In very general terms, in France and much of Southern Europe, art and culture are synonymous with heritage first, and items in public collections are often considered as national property entrusted to museums to be preserved in perpetuity. In Anglo Saxon cultures, there is a distinguishable expectation that preservation should continuously be balanced with innovation. In other words, institutions are expected to develop their collections to reflect not only a nation’s history but also its present.[1] It is therefore anticipated that curatorially-motivated disposals (i.e. selling works from a collection to raise funds to acquire new works) may be possible, albeit subject to very strict controls. These macro considerations, which stem from cultural differences, affect the light in which the general public will scrutinise deaccessioning decisions made by museums. Each institution must then turn to micro considerations and operate within the unique combination of internal collection policies and national laws applicable to it.
There are two key considerations that should guide museums considering deaccessioning for financial purposes: applicable legal restrictions on the one hand, and reputational and legal consequences on the other. Buyers, in turn, should be able to distinguish purchases that carry risks of legal and reputational consequences from those that do not.
Whatever the jurisdiction, when choosing which works they will deaccession, museums should carefully consider the particular terms under which each work entered the institutional collection. If this was through a gift or bequest, are the terms of the gift or bequest known, are they available for consultation in the museum’s records, and if so, are the recorded terms clear? Such terms are extremely important because they may place restrictive conditions on the museum’s title, and therefore its ability to transfer it. If such terms indeed exist, museums should ascertain whether they are effective and binding in the circumstances.
I. Deaccessioning in France
In France, cultural disapproval of deaccessioning is directly mirrored in legislation. This makes macro and micro answers to the deaccessioning debate almost indistinguishable. The mission of a “Musée de France” (an accredited national museum, of which there are currently 1219) is, amongst others, to conserve, restore, study, and enrich its public collections and make them accessible to the largest possible section of the public.[2] It follows from the cultural and historic emphasis on preservation, that a principle of “inalienability” of the cultural property in public collections exists. The principle of inalienability has existed in France since the 16th century but was first laid down in the Loi Relative aux Musées de France, [3] codified in the French Cultural Property Code.[4] Under this rule, objects that enter the inventory of a national museum become “classified”. Once classified, such objects become inalienable. This makes deaccessioning virtually impossible. To be deaccessioned, an object must first be declassified. A museum wishing to declassify an object in its collection must seek the opinion of the Commission Scientifique Nationale de Collections (CSNC). Declassification of objects acquired by gifts or bequests, or state funding, is entirely prohibited.[5] However, deaccessioning objects from public collections to donate them to another national museum is permitted.[6] If approved by theCSNC, the deaccessioning requires the passing of a deaccessioning law specific to the object(s) in question. As evidence of the national importance placed on the preservation of public collections, this process leaves the final decision in the hands of parliament rather than individual institutions.
The obstacles to passing deaccessioning laws was exemplified by the recent efforts to deaccession 27 objects from the Musée du Quai Branly’s public collection in order to complete their repatriation to Senegal and Benin. The process gave rise to intense parliamentary debate between the Senate and the National Assembly who disagreed over the final wording of the requisite law before the restitution bill passed the final hurdle in the National Assembly on 17 December 2020. In an effort to reassure the public’s unease over the challenge to the principle of inalienability, Roselyne Bachelot, the French culture minister, insisted that the law would not call into question “the principle of inalienability of France’s national heritage” and should not be taken to create “a legal precedent”.
The tensions exposed by this rare example of politically-motivated repatriation invite the question of whether financially-motivated deaccessioning by museums in France could ever pass legal and cultural hurdles. Indeed, if a deaccessioning effort supported by the French President, the now famous Savoy-Sarr Report, and global public pressure for European institutions to address their colonial history over the past few years faced such difficulties, there is meagre hope for financially-motivated disposal to succeed from both reputational and legal viewpoints.
II. Deaccessioning in the United States
In the US where museums are rarely publicly owned, collections are nonetheless perceived as cared for by museums for the public benefit. The macro answer to the deaccessioning debate couples the goal of preservation with the expectation that public collections should improve and evolve with time. While this is favourable to curatorially-motivated deaccessioning, it provides a restricted scope for welcoming financially-motivated deaccessioning.
At the micro level, the key deaccessioning rules in the US flow from two sources: charity law and the Policy on Deaccessioning of the Association of Art Museum Directors (the “AAMD Policy”). Charity law governs the interpretation of individual museums’ constitutional documents which should include deaccessioning procedures that are set out in a museum’s collections management policy. The AAMD Policy rules, in turn, derive their importance from the authoritative leadership position of the AAMD. Membership of the AAMD is available to museum directors (acting as representatives of their institutions, of which there are currently 227). Membership of the AAMD reflects an institution’s continuous fulfilment and pursuit of the highest standards in museum management, akin to those set by the Accreditation Standard in the UK. The AAMD Policy sets uniform deaccessioning rules applicable to member museums in the US. Member museums’ internal collection management policies are expected to be drafted in line with the AAMD Policy’s provisions. The AAMD Policy states that deaccessioning should only be undertaken to improve collections and further long-term curatorial goals. It prohibits the use of funds generated by a disposal for operations or capital expenses but authorises its use for the purpose of funding acquisitions of new works. The AAMD announced last April that until 2022 and in recognition of the unprecedented financial challenges brought by the pandemic, these rules would be temporarily loosened.[7] As a result, proceeds from deaccessioned art can exceptionally, for this two-year period, be used to support the “direct care of the collection”.
At first glance, it seemed that US museums were offered the temporary benefit of some flexibility in raising funds through deaccession to care for their institution in these extremely challenging times. However, museums must approach this opportunity with the utmost caution for two key reasons. Firstly, the relaxation of rules by the AAMD is not intended as a carte blanche for museums to part with works in public collections to make up for financial shortfalls and fund the operational costs needed to weather the storm. The definition of “direct collection care” is not intended to be fluid. The AAMD Resolution states that “To use the proceeds from deaccessioned works of art for this purpose, the museum must have in place a board-approved policy outlining what expenses it considers as direct care, and the policy must be publicly accessible (e.g. posted on its website).”[8] This new position does not allow the funds to be used for operating expenses generally and, as the AAMD has recently warned in a memorandum sent to its members, is not intended to “incentivise deaccessioning”.[9]
The recent attempt by the Baltimore Museum of Art (BMA) to deaccession works evidences the legal and reputational challenges museums can face in their reliance on the relaxed AAMD rules. Last autumn, the BMA announced its decision to deaccession three blue-chip works by Andy Warhol, Clyfford Still and Brice Marden from its collection by selling them through Sotheby’s. The sale combined financial and curatorial motivations – it was due to raise funds to establish an “endowment for the future” that would increase staff salaries, community access and the diversification of the museum’s public collection. More than 180 supporters of the museum signed a letter asking Maryland’s General Attorney and Secretary of State to block the sales on the grounds of an undervaluation of the Warhol and more importantly, the importance of those three particular works to the identity of the public collection. Some critics agreed in principle with the financial and curatorial goals that motivated the proposed deaccessioning but disagreed fervently with the three valuable works selected. Others argued that a fundraising campaign would be preferable to the sale. Despite the eloquent defences of the decision provided by the BMA’s leadership and their determination to see the sale through in the midst of public outcry, the sharp criticism and press attention attracted eventually led to the cancellation of the sale. The BMA suffered reputational damage and loss of donor support, including the rescission by two former board chairmen of USD $50 million in pledged gifts to the museum.
This recent example serves as a warning sign for those seeking to rely upon the relaxed AAMD rules. The beginning of a successful deaccessioning procedure is undoubtedly a clearly drafted collection management policy setting out an unequivocal definition of “direct collection care”.
III. Deaccessioning in the United Kingdom
In the UK, public collections are largely perceived as held in trust for the public which implies high standards of preservation incompatible with an overly flexible scope for deaccessioning. However, as is the case in the US, innovation and relevance are also expected of museums in their collection management. For this reason, curatorially-motivated deaccessioning can on occasion be welcomed, but financially-motivated disposal will be subject to particularly close scrutiny.
At the micro level, deaccessioning processes undertaken by museums must comply with several cumulative levels of regulations, which are dependent on the type of museum concerned. The deaccessioning of works in public collections for financial rather than curatorial reasons is prohibited in all but the most exceptional circumstances. For example, statutory restrictions applicable to national museums such as the Tate Galleries, the National Gallery or the National Portrait Gallery include Section 4 of the Museums and Galleries Act 1992 and Section 5 of the British Museum Act 1963. These statutory provisions restrict the disposal of works in national public collections for any reasons not underpinned by curatorial motivations. These laws require any funds raised from a lawful disposal to be used for the acquisition of new objects for the institution’s collection.[10] All accredited museums (of which there are over 1700) must in addition comply with the Museum Association’s five step process for deaccessioning outlined in the Code of Ethics and its Disposal Toolkit and Additional Guidance on Financially Motivated Disposal.
Principles of trusts and charity law, in turn, apply to institutions run as charities such as the Royal Academy of Art. The boards of such institutions are subject to fiduciary duties, including the duty to act in the best interest of the institution and the public, which often implies keeping collections – or at the very least their masterpieces – intact. The Royal Academy of Art’s collection development policy, for example, prohibits the undertaking of disposal “motivated principally by financial reasons”.
Museums that feel forced to consider financially-motivated deaccessioning should weigh their decision against the risk of legal and reputational consequences. For accredited museums, the key legal risk of financially-motivated deaccessioning completed in contravention of the Code of Ethics and Disposal Toolkit, is the consequential loss of accreditation by the Arts Council. This accreditation is an important marker of prestige but also a key source of government funding. The Art Council England’s Accreditation panel can take punitive action against institutions who undertake an unethical sale of items from museum collections by ordering their “removal and exclusion [from the Accreditation Scheme] for deliberate non-compliance”[11]. Excluded museums will lose access to significant government funding facilitated by the Accreditation Scheme for a period of five years and suffer considerable reputational damage. Because membership is cancelled rather than suspended by the sanction, museums will have to make a new application for accreditation at the end of the five years, the outcome of which cannot be guaranteed. For example, in 2014, a sanction by the Accreditation panel was triggered when the proceeds from the sale of an Egyptian Old Kingdom statue by Northampton Borough Council raised close to £16 million which were invested in an extension of the Northampton Museum and Art Gallery in contravention of the Code of Ethics. The museum lost its membership of the Museums Association for five years and its accreditation. Similarly, the Art Council England’s Accreditation panel removed the Croydon Museum’s accreditation status as a sanction for another non-compliant financially-motivated deaccessioning of 24 items from the Riesco collection in 2013.
In addition, the public scrutiny attracted by financially-motivated deaccessioning is sometimes inevitably accompanied by loss of donor confidence. If museums are perceived to readily deaccession works from their collections, or do so with a lack of transparency, this can send a negative signal to both current and future donors. On the one hand, it may deter donors of artworks who may lose the confidence that a work they choose to donate or bequeath will remain in the care of the museum and available to the public in accordance with their wishes. On the other, it could discourage financial donors who may question the museum’s ability to fulfil the mission to which they would expect their donation to contribute.
IV. Buying deaccessioned works
Buyers are not spared from the scrutiny and risks of this deaccessioning debate. Firstly, the buyer of a work from a public collection runs legal risks. Buyers must ensure that they are purchasing a valid title to the work, including where an intermediary such as an auction house intervenes in the transaction. This is important because if a museum does not in fact have ownership of a work (for example where it has held a work in its collection under a long term loan for years), the buyer may be liable for conversion. The buyer should request and consult documents evidencing the painting’s provenance and chain of ownership. Such documents include: a deed of gift; a letter or note from the donor; a letter of an estate executor or administrator where items have been left to a museum in a will; a copy of the will itself; or a receipt written out by museum staff. Secondly, reputational risks have been a concern for institutional buyers. On the rare occasions when works have been offered for sale by UK museums, other public institutions have avoided purchasing them for fear of being tainted as an accomplice of unethical deaccessioning. For example, last year, London’s Leighton House Museum deaccessioned a Joseph Wright of Derby painting and raised £300,000 by consigning it for sale at Sotheby’s.[12] The painting was offered to other UK museums at the much lower price of £70,000. The stigma around deaccessioning is of such importance, however, that public buyers and their funders did not want to be perceived to have supported a disposal from a public collection.[13]
Museums without a doubt deserve the public’s empathy and support in their efforts to survive the unparalleled crisis caused by the global Covid-19 pandemic. In such straining circumstances, it is understandable that, however painful, the compromise of deaccessioning one or a handful of works may appear to be an answer. Whilst deaccessioning can provide a temporary financial relief, this may come at the cost long-term legal, financial and reputational consequences which far outweigh its benefits. Under the current cultural and legal frameworks, financially-motivated deaccessioning may therefore not be the panacea it is hoped to be. Answers to the deaccessioning debate are unlikely to shift significantly unless and until there is a change, both cultural and legal, in the centuries-old approach to the management and preservation of public collections.
By Mona Yapova and Tom Christopherson
[1] https://www.museumsassociation.org/campaigns/collections/empowering-collections/recommendations-relevant-collections/; https://www.artscouncil.org.uk/supporting-arts-museums-and-libraries/supporting-collections-and-cultural-property; https://www.aam-us.org/programs/center-for-the-future-of-museums/innovation-lab-for-museums/; https://www.aam-us.org/programs/ethics-standards-and-professional-practices/core-standards-for-museums/
[2] Article 2, Loi n° 2002-5 du 4 janvier 2002 relative aux Musées de France
[3] Article 11(II), Loi n° 2002-5 du 4 janvier 2002 relative aux Musées de France
[4] Article 451-5, Code du Patrimoine
[5] Article 11(II), Loi n° 2002-5 du 4 janvier 2002 relative aux Musées de France
[6] Article 451-8, Code du Patrimoine
[7]https://aamd.org/for-the-media/press-release/aamd-board-of-trustees-approves-resolution-to-provide-additional
[8]https://aamd.org/sites/default/files/press_release/20200415_Press%20Release_AAMD%20Resolution%20on%20Use%20of%20Funds_Final.pdf
[9]https://www.theartnewspaper.com/news/aamd-sends-a-warning-note-to-museum-directors-on-deaccessioning
[10] Section 5(3), British Museum Act 1963; Section 4(7), Museum and Galleries Act, 1992
[11]https://www.artscouncil.org.uk/sites/default/files/download-file/Accreditation_Guidance_Mar_2019_0.pdf
[12]lhttps://www.sothebys.com/en/buy/auction/2019/old-masters-evening-sale/joseph-wright-of-derby-a-r-a-an-italian-river
[13]https://www.theartnewspaper.com/blog/why-deacessioning-guidelines-can-work-against-the-public-interest