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Critics Say A Lot Of Things

By Intellectual Property Law, Esq.

A few weeks ago, I mentioned a New York Times article that misleadingly suggested that the expiration of New York's "emergency" deaccessioning regulations would allow museums "to sell art to cover operating costs." As I said then: "The expiration of the emergency regulations just means that we go back to the existing, non-emergency regulations, which also prohibit the sale of art to cover operating expenses."

See also here and here.

The Times is back today, ratcheting up the confusion, with a story on the front page of the Arts section headlined "Criticism Flies After State Eases Ban on Art Sales." It begins: "When the New York State Board of Regents met last month to consider making permanent a set of temporary regulations that bar the sale of artwork by museums to cover expenses, approval was widely considered a fait accompli." And it goes on to give the distinct impression that, by letting the regulations expire, "such sales" -- i.e., sales "to cover expenses" -- are now allowed.

Again: that is not true.

The existing rules will still prohibit art sales to cover operating expenses.

You know how I know that?

I read it in the New York Times.

In the same article, but on the jump page, in the twenty-first paragraph (of a 24-paragraph story), we are finally told the following:

"In the absence of the regulations the Regents policy will revert back to a set of guidelines on the books since 1971 and amended in 1998 to address collections management, including deaccessioning. While the guidelines prohibit the use of proceeds from art sales for operating expenses . . . ."

Let me stop there for a moment. We are going back to guidelines that have been in place since 1971. Those guidelines PROHIBIT THE USE OF PROCEEDS FROM ART SALES FOR OPERATING EXPENSES.

I think it's probably safe to conclude, based on that, that proceeds from art sales may not be used for operating expenses. Wouldn't you?

So what is going on here? What is the source of the concern? What justifies two major stories on this in the New York Times in the span of three weeks? Let's go back to paragraph 21 again:

"While the guidelines prohibit the use of proceeds from art sales for operating expenses, they also require that such sales be consistent with an institution?s 'corporate purposes and mission statement.' This leaves open the possibility, critics said, that museums could amend their mission statements to suit their deaccessioning interests or argue that selling artworks fit within their 'corporate purposes.'"

I dealt with this supposed "loophole," which "critics say" opens the possibility for sales to cover operating expenses, here. There is no such loophole. Look at the very language of the Times article: the guidelines prohibit use of sales proceeds for operating expenses and they also must be consistent with the museum's mission statement. Get it? It's a two-part test. If you want to sell art,

(1) you can't use the proceeds for operating expenses

AND

(2) the sale must be consistent with your mission statement.

You can change your mission statement all you want -- yet that only helps with condition (2). No matter what, you still can't use the proceeds for operating expenses.

This is, or should be, a non-story.

Full post as published by The Art Law Blog on October 05, 2010 (boomark / email).