Should Museums Be Allowed to Sell Donated Works of Art?

Renderings for the Berkshire Museum redesign, which the institution intends to fund through the deaccessioning of part of their collection. Berkshire Museum/Facebook

Pity the big-time art collector (really!). All that time and money building a collection of art that is apt to go away just before or just after the collector dies. Because, when planning their estates, the three typical options for them are: The art can be willed to heirs who, if they like their parent’s taste—and not all do—will face inheritance taxes of up to 40 percent; the artwork gets sold to provide heirs with cash, and the sale itself generates capital gains taxes of 28 percent; or, the art is donated to a willing nonprofit institution, such as a museum, which permits a sizeable charitable deduction on their income or estate tax returns.

Whether they are loath to pay taxes or just want their artworks kept together as a group (or both), that last option tends to be favored. Still, art has a value for its owners beyond the dollars and cents. For many, if not most, art owners, their collections do not just represent a group of pricey things but a vision—the collector’s own vision—of themes in recent or past art, and they want that point of view to be part of their donation. As a result, when they look to donate objects or whole collections, they often seek to attach certain conditions and restrictions to the gift.

One favored condition is that the artworks be exhibited (not put in storage) and as a group (not cherry-picked by curators for favorites). Another is that nothing from their collection be sold. Those demands tend to run counter to current museum practices, however, as institutions “increasingly won’t accept gifts with restrictions,” said Sally Yerkovich, director of Seton Hall University’s Institute of Museum Ethics and author of A Practical Guide to Museum Ethics. “Things do change. Tastes change, the focus of a museum may change, the financial situation of a museum may change, and the people in charge of a museum don’t want their hands or their successors’ hands to be tied by strict conditions.”

Some institutions make this quite clear from the outset to prospective donors. The Smithsonian National Museum of African Art, for example, solicits gifts of objects, but its website states that “All acquisitions should be outright, unconditional, and irrevocable upon transfer to the museum. The museum cannot guarantee that objects donated will be placed on exhibition or that they will be exhibited or stored intact as a single collection.” On a more informal basis, lawyers representing major art collectors try to convince their clients who are looking to donate their objects to “be realistic,” said Boston-based lawyer Nicholas O’Donnell. “If I represent a donor who wants everything to stay together, and nothing will ever be sold, I tell that person ‘No one will agree to that.’”

On occasion, a donor will have a valuable enough collection or sufficient money to accompany the artworks to have the conditions of a gift met. Last fall, for instance, the Boston Museum of Fine Arts was donated a collection of 113 Dutch and Flemish works—including notable paintings by Albert Cuyp, Frans Hals, Rembrandt and Jan Steen—by collectors Rose-Marie and Eijk van Otterloo and Susan and Matthew Weatherbie, which included the stipulation that 85 percent of the collection must be on view at all times. Another element of that gift was funding to create a Center for Netherlandish Art at the museum, which has a planned opening in 2020. In 2016, Paris’ Musée d’Orsay, was given a collection of 600-plus paintings by late 19th and early 20th century artists, including Pierre Bonnard, Jean-Baptiste-Camille Corot, Edgar Degas, Andre Derain, Henri Matisse, Amedeo Modigliani and Edouard Vuillard from American couple Marlene and Spencer Hays. As part of the deal, works from the collection are to be exhibited intact in a dedicated space in the museum rather than be dispersed throughout the galleries.

At the same time that the Musée d’Orsay was finalizing its arrangement with the Hays, New York’s Museum of Modern Art accepted a gift of 102 Latin American paintings and sculptures from Patricia Phelps de Cisneros, a long-time patron and trustee of MoMA. The Modern announced that it will create a Cisneros Institute at the museum to research and publish books on art from Latin America.

Another example is the Metropolitan Museum of Art’s agreement with Robert Lehman. Lehman negotiated with the museum to donate his collection of paintings, drawings, manuscript illumination, sculpture, glass, textiles, antique frames, maiolica, enamels, and precious jeweled objects—2,600 objects in all—to the Met after his death, with the stipulation that they be displayed as a private collection. The collector died in 1969 and, in 1975, the Robert Lehman Wing opened to the public.

More often, donors do not have the leverage to force their terms onto a museum, which starts a period of negotiation, or counter-offers. “It all depends on what the museum stands to gain from the donation,” said New York art lawyer Susan Duke Biederman. “If it is a major collection, if it completes an important part of its mission, if it opens up new avenues for the institution, the donor may get a sweet deal. When it is something less than that, the deal gets less sweet.”

Money helps to sweeten a deal, such as cash to build a new wing to house a donated collection, and a monetary donation is often the impetus for naming a gallery after a donor, she said. An agreement may be made to hold a special exhibition around the entire gift or certain pieces from it. Frequently, the institution will agree not to sell objects from a donated collection for 10 or 20 years.

In 2008, retired Boston, Massachusetts lawyer John Axelrod donated his 377-work collection of decorative arts to the Boston Museum of Fine Arts on the condition that the institution establish a gallery for the objects, which it did, naming the gallery for him.

Certain categories of art may be less amenable to restrictions than others. Notable works of Dutch and Flemish art have a solid place in art history, while contemporary art will not remain contemporary for very long, making a demand for permanent display difficult to accommodate.

Lawyers representing art collectors advise them to clearly state their intentions to museum officials well in advance of a donation and as part of their written “deed of gift.” Still, things do change, and museum officials may look to revise the terms of a long-ago gift, perhaps by seeking approval from heirs of the original donor or from the courts on the basis of cy pres or the doctrine of deviation, which allows the recipient institution to interpret a donor’s intentions in a more expansive way, relying on the intent rather than the exact words. When a lawsuit is brought an heir or other interested party to stop a museum’s actions that are deemed counter to the language or spirit of a gift, a state attorney general—who is in charge of overseeing public charities within the state—may become involved on one side or another.

The vast majority of objects in museum collections are donations, but balancing the intentions of the individuals making the gifts with the interests of the public can be quite difficult, which is why more and more institutions at least publicly state that they will not entertain conditions and restrictions on donations, according to Ildeko DeAngelis, former assistant general counsel at the Smithsonian Institution. “I hate to see any provision about permanent display, because the decision on what to exhibit should not be based on a donor’s ego but on what best informs the public.”

Change rarely comes about without criticism and, sometimes, lawsuits.

A changing mission was the reason that the Albright-Knox Art Gallery in Buffalo, New York decided in 2007 to sell off 200-plus donated antiquities at auction in order to become more of a showplace of contemporary art. The millions raised were used to acquire artwork more appropriate to its changed focus. “We wanted to track artists on the front end of a career rather than waiting to see what happened to that career 20 or 30 years later on,” said Louis Grachos, former director of the Albright-Knox and now director of Contemporary Austin in Texas.

Similarly, in 2009, the Orange County Museum of Art sold off 18 of its 20 California plein-air paintings to a private Laguna Beach collector in order to remake itself into a repository of post-war art. More recently, the Berkshire Museum in Pittsfield, Massachusetts decided to focus less on the visual arts and expand its displays of historical objects and natural history, looking to sell some key pieces from its current collection—including Norman Rockwell paintings “Shuffleton’s Barbershop” and “Shaftsbury Blacksmith Shop”—in order to increase its endowment and repair its building.

The efforts by the Berkshire Museum to monetize artworks at auction has led to action on the part of the Massachusetts attorney general to stop the sale, and the case may be months from resolution. The outrage may last a bit longer.

Selling off objects from an institution’s collection, known as “deaccessioning,” often “happens after a museum has been on shaky financial group for quite a while,” Yerkovich said. “It comes at the end of the process.”

Financial uncertainty led both Fisk University in Nashville, Tennessee and Randolph College in Lynchburg, Virginia in 2012 to sell artworks from their museums in order to increase their shrinking endowments (Fisk sold the Crystal Bridges Museum in Arkansas an interest to artworks bequeathed to the university in the late 1940s for $30 million, while Randolph earned $25.5 million from a sale at auction). Six years earlier, Rockford College in Rockford, Illinois sold at auction approximately 2,000 objects—including several woodblock prints by Japanese artist Ando Hiroshige, an etching by Spaniard Francisco de Goya and a variety of ancient Egyptian and Roman antiquities—for $1.1 million.

Perhaps the most contentious legal overturning of a donor’s express intentions involved the Barnes Foundation, the museum in Merion, Pennsylvania established by Albert Barnes as a sort of school to instruct the restricted number of permitted visitors on how Barnes viewed modern art. Barnes disallowed any changes to the collection, and he required the endowment assets only to be invested in low-yield government bonds, which limited the foundation’s ability to be adequately financed as inflation increased. As a result, the endowment’s value declined dramatically (especially during the inflationary 1970s) and efforts by newer board members to raise money—increasing admissions from $1 to $5 and traveling parts of the collection to other museums—were found to violate the terms of the foundation’s charter.

In 2012, after years of lawsuits, the entire art collection was moved to a newly built facility in Philadelphia, near the Philadelphia Museum of Art, an action that wholly contradicted Barnes’ written and spoken sentiments but enabled the artworks to remain together. The courts decided that the larger goal of keeping this body of art together and accessible to the public was greater than the more narrow strictures established by the foundation’s founder and could be reformed.

It took six years for Fisk University to win approval, as the terms of the original gift forbade the sale of objects, while Randolph College’s request to change the terms of its gift was far shorter. Ultimately, it was recognized that the gifts in question were made to the educational institutions, rather than to separate museums on their premises, and that these institutions could do what they wanted with their own property. Additionally, different attorneys general view their role as defenders of the public interest differently, DeAngelis said. “When they hear that an entire institution is likely to go under if it doesn’t change the original terms of the gift, many attorneys general consider that it is the larger intention of donors to keep the institution alive and prospering. I think that is what happened with Fisk and with the Barnes Foundation.” The sale of the Berkshire Museum’s collection could depend on whether this deaccessioning is deemed necessary for the museum to stay open into the future.

Daniel Grant is a freelance writer and the author of five books on business and fine art.

Should Museums Be Allowed to Sell Donated Works of Art?