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Trust Me

By Intellectual Property Law, Esq.

Lee Rosenbaum posts excerpts from a "ringing manifesto" sent by the president of the American Association of Museums to the NY State Board of Regents on Friday. In them, he makes two main points:

1. "With a private collection, you may be able to see it today, but you have no assurance that you will see it tomorrow. With a museum, you have the assurance that its collection will be available to the community for generations to come."

Assuming, of course, the museum doesn't go under. And what if the work is sold to another museum? Doesn't that dispose of this objection? Do we have more assurance that works owned by the National Academy will be available to the community than we would if the same works were owned by, say, the Crystal Bridges Museum?

2. "An analogy we use is that allowing a museum to trade its collection to cover operating debts would be like allowing a financial fiduciary, such as a bank, to raid assets it holds in a trust to cover a hole in its own balance sheet. This would be inconceivable. It should be equally inconceivable for a museum to raid the assets placed in trust with it."

This is an interesting sounding analogy, but is it right? Do museums have the same relationship to the works in their collections as banks do to the assets they hold for their customers? Museums aren't holding the works in trust for someone else. They own them. I'm not sure it's a useful way of looking at things to say that the works belong to "the people" and are merely "held" by the museum. For one thing, what people? The people of a particular city? State? Nation? And even if you do think of it this way, what would be wrong with a sale between two New York museums -- say the National Academy sold to the Met? Wouldn't that just be like the bank moving my money from one of my accounts to another?

What strikes me as most odd about this whole argument, however, is that nobody, including the AAM, thinks museums should never sell work. It's okay to sell -- just as long as you use the proceeds to buy art, rather than expand or improve your facilities, or increase the hours you're open to the public, or improve your educational programs, etc. So really it's fine for the bank to "raid the assets" it holds in trust -- as long as they're raided for the right purposes.

As I've said, a lot more complicated than a lot of people let on.

Full post as published by The Art Law Blog on December 15, 2008 (boomark / email).