Deaccession of Art From the Public Trust

Journal of Art, Antiquity & Law, Vol. 16, Issue 2, pp. 1-37, July 2011

38 Pages Posted: 8 Sep 2009 Last revised: 21 Aug 2011

Derek Fincham

South Texas College of Law Houston

Date Written: 2010

Abstract

A deaccession crisis confronts the American Museum community. Deaccession of art occurs when a museum decides to dispose of a work of art. The crisis stems not just from the practice itself - though there are indications deaccession will occur with increasing regularity. Rather the curious mixture of trust and estates law, state law, tax policy, nonprofit governance and professional guidelines governing deaccession all combine to form a set of binding norms and laws which lack clarity and often conflict. This precludes a reasoned appraisal of whether any given sale may benefit the public. More care should be taken when crafting the rules governing our collective cultural heritage. Regrettably the current rules lead to a number of pernicious consequences: the loss of works from the public trust, the closure of museums and unnecessary legal disputes.

This article attempts to define the public interest in works of art, and provide a framework to guide deaccession of works of art in the future to ensure those sales do in fact serve the public interest.

Current guidelines require that deaccession proceeds be used only to purchase more art. This article proposes three changes. First, the unnecessary restriction on deaccession proceeds should be eliminated. Second, when an important work of art is deaccessioned, other museums should be given an opportunity to purchase a work - to keep it in the public trust or its region - in much the same way the United Kingdom and other nations regulate the export of works of art. Finally, when any museum is considering a deaccession, it must provide reasons for the sale and publicize the decision to allow interested and impartial observers to monitor the removal.

Keywords: Trusts, Estates, Property Law, Art, Museums, Cultural Heritage, Nonprofit, Charity

Suggested Citation

Fincham, Derek, Deaccession of Art From the Public Trust (2010). Journal of Art, Antiquity & Law, Vol. 16, Issue 2, pp. 1-37, July 2011. Available at SSRN: https://ssrn.com/abstract=1470211

Derek Fincham (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States
9546678328 (Phone)

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