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The Stealth Brodsky Bill

By Intellectual Property Law, Esq.

Lee Rosenbaum reports that the NY State Board of Regents has released its Proposed Permanent Amendment to its deaccessioning rules. Lee summarizes:

"This amendment ... would prohibit use of deaccession proceeds for operating expenses, payment of outstanding debt, or capital expenses (other than those for historic buildings designated as part of an institution's collection). Proceeds cannot be used as loan collateral, and 'collections shall not be capitalized' (i.e., listed as assets on an institution's balance sheet). They can be used only for the acquisition, preservaton, protection or care of collections."

Lee thinks these rules are even "more stringent than the deaccession guidelines of the [AAMD]," but I'm not so sure about that. It seems to me that the exception for "refinement of collections" puts us exactly where the AAMD rules are: sales to buy more art are fine; sales for any other purpose you can think of are not.

Lee is of course thrilled: "I believe that government oversight ... is needed now more than ever, as the temptation to monetize collections for a quick fix becomes increasingly hard to resist. I've lost confidence in the ability of the field to regulate itself. It's time to call in the reinforcements." Cornell's Peter Hirtle offers some thoughts here. My own views on this issue should be pretty clear by now.

Public comments on the proposal are due Sept. 25. The Regents will vote on it at their meeting on Oct. 19-20. If they are adopted, the effective date of the new rules will be Nov. 12.

One interesting feature of this whole debate is that, while it's the Brodsky Bill that gets all the attention, with the exception of the few institutions not chartered by the Board of Regents, these regulations achieve the same effect, but in a much quieter way.

You can read the proposed amendment here. The full text of the current version of the regulations (see §3.27) is here.

Full post as published by The Art Law Blog on August 21, 2009 (boomark / email).