Last November, the National Academy Museum in New York, facing a severe financial crisis, decided by a vote of 181-1 among its artist-members to sell two paintings from its collection, by Frederic Edwin Church and Sanford Robinson Gifford, to help pay for operating expenses; it had earlier ruled out selling its Fifth Avenue home. The reaction of the Association of Art Museum Directors was swift and merciless. The AAMD called on its members to suspend loans to the Academy and to refrain from collaborating with it on exhibitions. The private sale, reportedly to a foundation, raised close to $15 million.

In January, Brandeis University, facing a financial crisis of its own [see Front Page, Mar. ’09], announced that it would close its Rose Art Museum and sell off works from its collection. The university’s initial statement indicated that it would sell the entire collection. More recently, Brandeis president Jehuda Reinharz told the Boston Globe that the plan is to sell “a minute number” of works, if any. On the newspaper’s art blog, Brandeis provost Marty Krauss was quoted as saying that the university felt it could not operate a museum that is expected to abide by a code of ethics limiting the reasons it can sell off works. This and other public statements by Brandeis officials make clear the true motivation for the closing: if the school doesn’t have a museum, it’s not subject to the AAMD’s deaccessioning rules.

Together, these incidents reflect the challenges nonprofit institutions are facing in the new economy. But they reveal something else as well: the incoherence of the AAMD’s position on deaccessioning. The AAMD code of ethics provides that sales proceeds may not be used “for purposes other than acquisitions of works of art for the collection.” As seen in the National Academy case, the consequences of violating the guidelines can be grave. (Academy director Carmine Branagan told the New York Times that she was “shocked by the tone” of the AAMD’s response, which implied “we had committed some egregious crime.”)

The rule is usually justified on the ground that works in museum collections are held “in trust” for the public and therefore cannot be sold. The problem with this argument is that museums sell work all the time. Remember: the AAMD rules clearly permit the sale of work so long as the proceeds are used to buy more work. The L.A. County Museum of Art, to cite just one recent example, consigned to Sotheby’s for a January auction a painting by Lucas Cranach the Elder, which did not sell, and another by Sir Joshua Reynolds, which did. Why aren’t those works held in trust? Who gave permission on behalf of the public to sell them? The AAMD position—by expressly sanctioning the sale of works—itself acknowledges that objects in museum collections are not actually held “in trust.”

Another problem with the rationale that works are “held in trust for the public” is that sales between institutions should then reasonably be allowed by the AAMD, but they’re not. If the works in the collections of the National Academy and, say, the Metropolitan Museum are held in trust for the public, what’s wrong with a sale from one to the other? The transferred work continues to be held in the (same) public trust, just a few blocks south. So if the “held in trust” argument cannot justify the AAMD rule, what can? Defenders of the rule typically resort to a slippery slope argument: “If we allow that sale, then where will it stop?” As Detroit Institute of Arts director Graham Beal told the New York Times, “If it were suddenly legitimate to sell artworks and use the proceeds for anything other than acquisitions, there would be a wholesale cannibalization of many museums.”

This contention is again undermined by the AAMD’s own rule, and the years of experience museums have had under it. The AAMD rule built a little slope—it allows sales in order to raise funds for acquisitions—and we’ve seen that it’s not all that slippery. Works are not being sold off willy-nilly. No one is raiding museum storerooms.?I suspect that, if the AAMD rule didn’t exist, deaccessioning practices wouldn’t change very much from what they are today: they’d still happen relatively infrequently, after much deliberation and careful consideration by museum curators, directors and trustees.

So where does that leave us? Supporters of the AAMD position say that works can never be sold—except when they can be sold, in which case they’re somehow no longer held in trust. And they say that if we allowed an exception for even the most mutually beneficial transaction (for example, a sale by a struggling institution like the National Academy to a healthy one like the Met), there would be no end to such sales—even though experience under their own rule shows that there are strong institutional constraints in place that act as a check on any abuse of such freedom.

Clearly, these internally inconsistent rules need to be re-examined, if not thrown out altogether.

[The author is a lawyer who blogs at theartlawblog.blogspot.com.]

Above left: Frederic Edwin Church, Scene on the Magdalene, 1854, one of two works deaccessioned by the National Academy Museum.

Above right: Lucas Cranach the Elder, Portrait of a Bearded Young Man, 1518, to be sold by the L.A. County Museum of Art.