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Lawsuit Seeking to Stop Deaccessioning of Paintings at Valparaiso is Dismissed

Posted by Nicholas O'Donnell on December 4, 2023 at 4:05 PM

A trial court in Indiana recently dismissed a lawsuit challenging the proposed sale of three works of art by Valparaiso University: Rust Red Hills by Georgia O’Keefe, Mountain Landscape by Frederic Edwin Church, and The Silver Veil and the Golden Gate by Childe Hassam. This controversy highlights many of the issues surrounding the deaccession of art by American museums. In ruling that the former director of the Brauer Museum of Art at Valparaiso and the museum’s key benefactor both lacked standing to sue the university over the planned sale, the decision tracked other recent results about non-profit oversight, highlighting just how critical the engagement of a state’s Attorney General is.

Whatever the merits of this rule on standing are, however, the university seems to be violating a condition of the 1953 agreement it made to obtain these works of art, yet nine months on the Attorney General has not exercised his undisputed prerogative to stop it. Non-profit governance is hard in a world of finite charitable resources. But universities caught in the arms race of new dorms and laboratories would do well to consider the core mission and what makes it possible. The chance to sit with a painting by Hassam, Church, or O’Keefe was well recognized by the original benefactor Percy Sloan, and this university agreed to abide by that condition. It should keep its word. Selling art to plug budget holes is like eating the seed corn; it robs the future.

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Topics: Rose Art Museum, Supreme Judicial Court, Deaccessioning, New York Times, Brandeis University, Berkshire Museum, Frederic Edwin Church, Attorney General, Mountain Landscape, The Silver Veil and the Golden Gate, Georgia O'Keefe, Childe Hassam, Rust Red Hills, Breuer Museum of Art, Percy Sloan, Junius Sloan, Sara Sloan, Justice David Lowy, Todd Rokita, José Padilla

Syracuse to Host “Deaccessioning After 2020” March 17-19, 2021

Posted by Nicholas O'Donnell on March 1, 2021 at 4:08 PM
I am pleased to be a presenter and panelist at an event later this month on a topic of evergreen currency: museums and deaccessioning. As we’ve covered here, the pandemic has put pressure on museums in ways that were hard to foresee only 12 months ago. The response by museums, museum associations, and attorneys general has taken a variety of approaches. Just in the last year alone from Brooklyn, to Baltimore, to Syracuse, and most recently the Metropolitan Museum of Art, whether, when, and how museums should handle sales of their collections remains a volatile subject. 
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Topics: Donn Zaretsky, Dallas Museum of Art, New York University, Deaccessioning, Williams College, Christie's, Sullivan & Worcester LLP, Sotheby's, 17 U.S.C. § 106A(a)(3)(A)-(B), Nicholas M. O'Donnell, ARTnews, Jakob Dupont, Sarah Douglas, Brooklyn Museum, Syracuse University, Anne Pasternak, Stephanie Johnson-Cunningham, Museum Hue, Dean Craig M. Boise, Andrew Saluti, Agustín Arteaga, Joseph Thompson, Massachusetts Museum of Contemporary Art, Courtney Aladro, Mark Gold, James Sheehan, Steven Lubar, Brown University, Everson Museum of Art, Emily Stokes-Rees, Cara Starke, Sally Yerkovich, Brian Frye, University of Kentucky College of Law, Silberman Zaretsky, PC, Peter Dean, Randolph College, Andria Derstine, Oberlin College, William Eiland, Carl Van Vechten Art Gallery, Christy Coleman, Ken Turino, Nina del Rio, Hindman Auctions, Michael Shapiro, Allison Whiting, Julia Courtney, Christopher Bedford, The Baltimore Museum of Art, Julia Pelta, Fisher Museum, Thomas Campbell, Fine Arts Museums of San Francisco, Linda Harrison, Glenn D. Lowry, The Museum of Modern Art, Tracey Riese, Melody Kanschat, Museum Leadership Institute, Sterling and Francine Clark Art Institute, Betsy Bradley, Mississippi Museum of Art, Michael O’Hare, Goldman School of Public Policy, University of California at Berkeley, Erin Richardson, Frank & Glory, Smith Green & Gold LLP, New York State Department of Law, Michael Conforti, Amy Whitaker, Stefanie Jandl, Deborah Kass, Amalia Mesa-Bains, Meleko Mokgosi, Wendy Red Star, Carrie Mae Weems, Pulitzer Arts Foundation, Roxana Velásquez, The San Diego Museum of Art, University of Georgia Museum of Art, Jamaal Sheats, Fisk University, Kristina Durocher, Association of Academic Museums and Galleries, Jamestown-Yorktown Foundation, Historic New England, Lawrence Yerdon, Strawbery Banke Museum, Scott Wands, American Association for State and Local History, When is it Okay to Sell the Monet?, Glenn Adamson, Bern University of the Arts, Michelle Millar, The Newark Museum of Art

A Deaccessioning Decision Tree Grows in Brooklyn—Selling Museum Art in Hard Times

Posted by Nicholas O'Donnell on September 23, 2020 at 7:49 AM

Robin Pogrebin at the New York Times has written an excellent piece on the news that the Brooklyn Museum intends to sell several works from its collection to raise money. The museum explicitly relies on the pandemic-inspired announcement in April by the Association of Art Museum Directors (AAMD) relaxing its industry guidance (and pausing sanctions) with regard to the proceeds of the sale of art and how the resulting proceeds should or should not be used. The parallel announcement by a Syracuse museum that it intends to sell a Jackson Pollock painting in a manner more consistent with the old rules provides an instructive moment to consider what has really changed in six months of a new era.

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Topics: The Art Newspaper, Jackson Pollock, Deaccessioning, Boston Globe, Association of Art Museum Directors, Lucas Cranach the Elder, New York Times, AAMD, Berkshire Museum, Apollo Magazine, Brooklyn Museum, Robin Pogrebin, Syracuse University, Anne Pasternak, Lucretia, Courbet, Corot, Red Composition, Lisa Simpson, Donato de’ Bardi, NY Board of Regents, Jeff Jacoby, C. Montgomery Burns, Royal Academy of Arts

Event—Deaccessioning: Art, Morals, and the Law

Posted by Nicholas O'Donnell on May 4, 2018 at 5:00 PM

I will be speaking to the Copyright Society of the USA on Thursday May 10, 2018 at 5:30 pm at Northeastern University Law School at 250 Dockser Hall – 65 Forsythe Street in Boston.  The presentation will discuss the legal and ethical implications of recent sales or proposed sales by museums of works of art in their collections, including the Barnes Foundation, the Corcoran, and the Berkshire Museum.  The event is free of charge and open to the public.  RSVP is preferred but not required, see attached flyer for details.  the event is co-sponsored by the New England Chapter of the Copyright Society of the U.S.A. and Northeastern’s Center for Law, Innovation and Creativity.

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Topics: Copyright Society of the U.S.A., Deaccessioning, Corcoran Gallery, Barnes Foundation, Berkshire Museum, Northeastern University Law School

Members of the Berkshire Museum Ask Supreme Judicial Court to Stop Berkshire Museum’s Deaccession Plan

Posted by Nicholas O'Donnell on February 26, 2018 at 5:36 PM

(Boston, MA, February 26, 2018) Sullivan & Worcester LLP clients and Berkshire Museum members James Hatt, Kristin Hatt, and Elizabeth Weinberg filed today a brief with the Supreme Judicial Court of Massachusetts asking the state’s highest court not to permit the sale of 40 works of art by the Berkshire Museum. The Berkshire Museum filed a petition on February 9, 2018 asking the SJC to permit deviation from the historical restrictions that would prevent such sale. Today the museum member filed a brief as amicus curiae, or “friend of the court.”

Partner Nicholas M. O’Donnell, attorney for the members, said, “My clients are optimistic that the SJC will see through the Berkshire Museum’s petition to deviate from its historical restrictions as unnecessary, and harmful. Such a petition must show that the current state of affairs is impossible or impracticable, and that the requested change is ‘as near as possible’ to the original purpose of the institution. This petition fails to meet either criterion.”

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Topics: Deaccessioning, Norman Rockwell, Sullivan & Worcester LLP, Nicholas M. O'Donnell, Pittsfield, Berkshire Museum, Shuffleton’s Barbershop

Members of the Berkshire Museum Pledge to Continue Fight Against Liquidation of the Museum’s Art Collection

Posted by Nicholas O'Donnell on February 13, 2018 at 2:45 PM

(Boston, MA, February 13, 2018) Sullivan & Worcester LLP clients and Berkshire Museum members James Hatt, Kristin Hatt, and Elizabeth Weinberg sharply denounced today the agreement that was announced Friday evening between the Berkshire Museum and Attorney General Maura Healey’s office to permit the sale of every one of 40 works of art that the members—and AG Healey—sued last year to prevent.  Only two weeks after filing a 50-page brief in the Massachusetts Appeals Court that detailed numerous violations of the Trustees’ fiduciary duties and specific restrictions on the 40 works of art, the Attorney General’s office has filed its assent to the Museum’s request to modify its governing charter to permit the immediate sale of Norman Rockwell’s Shuffleton’s Barbershop to an unnamed buyer, and to allow the sale of the 39 remaining works thereafter without any further oversight of the governance of the Museum.

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Topics: Deaccessioning, Sullivan & Worcester LLP, Nicholas M. O'Donnell, Berkshire Museum, Maura Healey

Rich Man/Poor Man?  The Berkshire Museum and Why Deaccessioning is so Frustrating

Posted by Nicholas O'Donnell on August 23, 2017 at 6:11 PM

Two wonderful museums recently announced plans to sell major works of art.  In one case, some 40 paintings, American masterpieces among them, will be sold at auction.  In another, more than 400 photographs will also be sold.  The former case has prompted a nationwide outcry, the latter…effectively nothing.  The differences and similarities between the two underscore the aspirational rules that govern what is known as “deaccessioning,” but also remind us that principles and the goals they are meant to reach are not always the same thing. 

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Topics: Metropolitan Museum of Art, Delaware Museum of Art, American Alliance of Museums, Lee Rosenbaum, MoMA, Deaccessioning, AAM, Norman Rockwell, Association of Art Museum Directors, Alexander Calder, Museum of Fine Arts Boston, AAMD, Pennsylvania Academy of Fine Arts, Pittsfield, General Electric, Waconah Park, Berkshire Museum, Housatonic, Lake Onota, Frederic Church, Albert Bierstadt, Zenas Crane, Williamstown, Lenox, North Adams, Mass MoCA, Felix Salmon

Detroit and Deaccessioning—the Museum Responds

Posted by Nicholas O'Donnell on May 11, 2015 at 8:24 AM

We mused recently about (and tried to clarify) the possible tension between the Detroit Institute of Arts’ successful scuttling of any plans to consider selling its collection to satisfy the city’s debts in the Detroit Bankruptcy. The purpose of the post was not guileful: it seemed likely that many readers might be confused about how Detroit could propose to sell artwork when so much coverage had been addressed to the idea of not selling artwork. In fact, the two ideas are entirely consistent with the consensus of museum governance ethics, but we thought it was an occasion to prompt discussion about the policy behind those ethical guidelines. After all, apart from New York, the rules of deaccessioning are not actually law, they are enforced essentially through collective opprobrium. To facilate that discussion, I quoted Donn Zaretsky, a prominent critic of the status quo, for readers to consider on the one hand, against the guidelines themselves on the other hand.

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Topics: Donn Zaretsky, Deaccession, Detroit bank, Graham W. J. Beal, Randy Kennedy, Deaccessioning, Van Gogh, Detroit Institute of Arts, DIA, Museums, New York Times, Chagall, Detroit Bankruptcy, Art Law Report

Deaccessioning in Detroit?

Posted by Nicholas O'Donnell on April 14, 2015 at 11:30 AM

Readers will no doubt be puzzled by the news this week that the Detroit Institute of Arts—fresh off of the Grand Bargain, in which an infusion of donations and fundraising led to the transfer of the collection’s ownership back to the museum and off the table in the context of the Detroit Bankruptcyis moving ahead with plans to deaccession works of art in its collection, a Van Gogh in particular. There are a number of things going on in this latest development, which need to be distinguished.

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Topics: Graham Beal, Deaccession, Delaware Museum of Art, American Alliance of Museums, Donn Zaretzky, Deaccessioning, AAM, Van Gogh, Detroit, Detroit Institute of Arts, Association of Art Museum Directors, Museums, Detroit Bankruptcy, AAMD, grand bargain

Corcoran Merger Approved, Cy Prés Ruling Treats Deaccession as Non-Starter in Concluding that Status Quo is Untenable

Posted by Nicholas O'Donnell on August 19, 2014 at 8:05 AM

As reported initially, Judge Robert Okun of the District of Columbia Superior Court allowed yesterday the cy prés petition by the trustees of the Corcoran Gallery and the Corcoran College of Art + Design. The full opinion can be read here. The petition asked to reform the trust of William Corcoran to permit a merger with the National Gallery of Art and George Washington University, a merger that will now proceed. The ruling addresses the financial condition of the Corcoran at length, but what is perhaps most interesting is the court’s acceptance of a central argument made by the Corcoran that selling its artwork to shore up its finances was an unacceptable way to proceed. This adopts the view, espoused most prominently by the American Alliance of Museums (AAM) and the Association of Art Museum Directors (AAMD), that deaccessioning for anything other than the purchase or care of art is anathema. Right or wrong, that acceptance in this opinion should have long lasting effects. Framing the question in this way was a work of skilled lawyering by the Corcoran’s attorneys, and kudos must go as well to the interveners and their counsel, without whom the other side of the story would have had no advocates at the trial. Those interveners have stated that they do not intend to appeal, meaning the case is over. Jayme McLellan, founder of Save the Corcoran, issued a statement after the ruling that “The Corcoran as we know it is gone. We fought the good fight." Incidentally, in response to our earlier reporting of McLellan’s role, I received an e-mail yesterday from Mimi Carter, the Corcoran’s Vice President, Marketing & Communication. Ms. Carter stated “Jayme McLellan was not fired from the Corcoran. She resigned in 2012, as mentioned on the first day of court hearings, citing differences with leadership. While there was a miscommunication with Ms. McLellan because of a lack of internal systems, due to a diminished staff and finances, she was not offered a contract to teach this coming Fall. Statements of retaliation are simply false.”

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Topics: Donn Zaretsky, Middles States Commission on Higher Education, Harry Hopper III, Anne Smith, Deaccession, Kathy Raffa, National Gallery of Art, Chiara Trabucchi, Industrial Economics, Jayme McLellan, William Corcoran, Save the Corcoran, George Washington University, sanctions, Corcoran Merger, University of Maryland, Deaccessioning, Cy Pres, Judge Robert Okun, Sergio Muñoz Sarmiento, District of Columbia Superior Court, AAM Code of Ethics, Corcoran College of Art + Design, Lauren Stack, Alexander Haas, Paul Johnson, Trusts, Art Institute of Chicago, Dr. Steven Knapp, Corcoran Gallery, Museums, New York Times, Sean O’Connor, Caroline Lacey, MSCHE, Dr. Wallach Loh, Deaccessioning Blog, Art Law Report, Mimi Carter, National Public Radio

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About the Blog


The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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