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"The AAMD sees no problem with the way we are handling this situation"

By Intellectual Property Law, Esq.

A number of people emailed me today about this story by James Panero in today's Wall Street Journal. It seems there is more to the Montclair Art Museum deaccessioning than was originally reported.

ArtsJournal linked to the story using the following headline: "Via AAMD Loophole, Another Museum Monetizes Collection."

The initial report by Carol Vogel in her NYT "Inside Art" column a couple of Fridays ago noted that "deaccessioning is a hot-button topic these days," but immediately added that "officials at Montclair were quick to say that the proceeds from any sale of art would go only toward purchasing other works, a practice that is consistent with the [AAMD] policy." In other words, nothing to see here, move along.

But Panero says that, in reality, it's "another sorry example of an institution cashing out on art in the public trust" -- that what's really going on is the museum is "exploiting" a "dangerous gap in the [AAMD] guidelines." More specifically, "while museums are forbidden from ... using the value of their art as collateral for a loan, nothing in the AAM or AAMD rules explicitly prevents museums from selling their art ..., earmarking that revenue for future acquisitions, and then using the endowment money raised from the sales to back their loans." In this way, "museums avoid the censure of AAMD while still underwriting loans that may go to general operating expenses or the next vanity expansion project."

Panero says that's exactly what's happening here: "In 2001, the museum undertook a massive $14.5 million expansion that ... saddled it with debt. Now, as its overall endowment has dipped 25%, ... the museum risks not having enough cash on hand to back its loans. That's where this deaccession comes in -- to raise cash to satisfy the requirements of its bank bonds." "What's most troubling," he adds, "is that nothing [in the AAMD rules] is designed to stop it, even though Montclair is liquidating art in its permanent collection to raise the aggregate collateral for its loans." The museum has "found another way to monetize its collection without consequence, exposing another failure in the way our arts institutions police themselves."

Sergio Muñoz Sarmiento says the story "serves only to strengthen [my] claim that museums will find other creative means to sidestep the strict [AAMD] regulations." I think it also nicely makes Adrian Ellis's point that "the preoccupation with the application of proceeds from sales - more art 'good'; everything else 'bad' -" ends up blinding us to other, more important questions, including (in Adrian's view) where are the works going? (In the Montclair case, "some" of the works will be sold at Christie?s spring auctions.) I think the real question here, as in all similar cases, is: Taking into account all the relevant circumstances, including what the museum hopes to achieve through the sale and what the realistic alternatives are, is the sale a good idea? Or, as Christopher Knight would have it, (1) was the decision made with forethought and care and (2) is the collection being used wisely and for the benefit of the American public?

Full post as published by The Art Law Blog on April 15, 2009 (boomark / email).