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A couple more notes on Fisk and donor intent

By Intellectual Property Law, Esq.

Two additional points on the situation at Fisk:

1. Keep in mind that when we talk about O'Keeffe's intent here, we're all really just guessing. O'Keeffe did not say -- though she certainly could have -- what she wanted to see happen to the collection in the event Fisk could no longer properly care for it. So we have in front of us two options --

A. The works go to the Frist Center in Nashville on a year-round basis (but with the potential to come back to Fisk if their financial fortunes turn around);

and

B. The works are shared with Crystal Bridges Museum in Arkansas, so that they remain at Fisk half the time --

and I don't know how we would even begin to figure out which one is "closer" to O'Keeffe's intent. How do we make that determination? One has the works staying with Fisk half the time -- so maybe we score that a 50% on the Intent Scale. The other has the works leaving Fisk . . . but with the possibility that they will come back some time in the future. What kind of Intent Scale score does that get? I suppose it depends, in part, on how likely we think it is that the works will actually come back. But again, this whole idea of deciding which of the two alternatives is "closer" to O'Keeffe's original intent just seems like an impossible task to me (and I've deliberately left to the side the fact that one of the two alternatives is worth $30 million to Fisk and the other is worth nothing).

2. Though we can't be sure what O'Keeffe would have wanted, there is a kind of "successor" to O'Keeffe that is still around today: the Georgia O'Keeffe Museum. Before the Frist proposal ... before the Crystal Bridges deal ... the O'Keeffe Museum had struck a deal with Fisk that would have allowed Fisk to sell one (or, depending on how you look at it, two) of the works in the collection but hold onto the other 99. (The court rejected the deal, three years ago now -- on the grounds that the Crystal Bridges offer was better (!) -- and then the O'Keeffe Museum was pushed out of the case on standing grounds. Where's Argott when you need him?) But, as I said at the time:

"If this really is a matter of donor intent, then why couldn't the museum agree to waive this or that condition of the gift? I mean, if O'Keeffe were alive, and she had worked out a deal with Fisk like the one the museum, as her successor, worked out in the fall -- what sense would it make to say that deal was contrary to O'Keeffe's intent? She's the one making the deal. And if that's right, why should it be any different for the O'Keeffe Museum as her successor?"

Isn't that deal between Fisk and the O'Keeffe Museum (the entity whose purpose in life is to perpetuate her artistic legacy) "closer" to O'Keeffe's intent than either the Frist or Crystal Bridges alternatives?

Is it too late to go back to that option? We all want to make sure the donor's intent is honored to the greatest extent possible, don't we?

Full post as published by The Art Law Blog on September 14, 2010 (boomark / email).