Donn Zaretsky practices art law in New York and is the author of the Art Law Blog.
When the news broke earlier this month that the Association of Art Museum Directors (AAMD) was relaxing its rules regarding deaccessioning, I half-jokingly emailed a friend: “It took a pandemic, but we finally won this argument.”
I had been arguing for years, on my blog and elsewhere, that the AAMD’s position that there could only ever be one acceptable use of deaccessioning proceeds (i.e., for the purchase of more art) made no sense. It’s nice to see them finally come around.
But let’s back up a little. What, exactly, did the AAMD do this month?
The museum group, which offers guidelines and recommendations for how directors should run their institutions, passed a series of resolutions addressing two separate sets of existing restrictions—one regarding endowment funds, trusts, or donations, and the other (the one we’re concerned with here) regarding the use of proceeds from deaccessioned art. When it comes to the latter point, the AAMD has made two important changes—albeit temporary ones—to its approach. First, museums can now use deaccessioning proceeds—regardless of whether the works were deaccessioned before or after the date of the resolutions—to support the “direct care” of the collection. (Take a moment to think about how strange it was that, until now, it was considered highly unethical, and sanction-worthy, for a museum to use sales proceeds to care for its own collection.) The AAMD leaves it to each museum to come up with its own definition of “direct care,” as long as it’s approved by the museum’s board and the policy is made publicly accessible (e.g., posted to its website).
Second, museums can now use the income (but not principal) from funds generated by deaccessioning (again, regardless of when the works were deaccessioned) to cover general operating expenses. This part is a huge deal. It was always considered absolutely forbidden to deaccession works as a way to fund a museum’s operating costs, even if it meant the museum would have to close its doors.
This really is—or should be—the end of the debate. You can say these are extreme circumstances—it’s for a limited time for limited purposes, and so on. (The new recommendations are in place for only two years, through April 10, 2022, and, in its press release announcing the moves, the AAMD said, “This temporary approach is not intended to incentivize deaccessioning or the sale of art, only to provide additional flexibility on the use of the proceeds from art that may be sold.”) But once you accept that there are some occasions when a broader use of funds is acceptable, you have to concede there may be other such occasions. You’ve entered the world of weighing costs and benefits. Sometimes (like, for example, now) the benefits will clearly outweigh the costs. Sometimes the costs will clearly outweigh the benefits. And sometimes it will be a close call and reasonable minds will differ.
In fact, one of the biggest flaws in the AAMD’s traditional approach is that it assumes the people who run our museums are incapable of making those cost-benefits analyses, and that there are no mechanisms (like changing museum leadership, or bringing in new board members) for correcting things when they get it wrong.
So when should it be acceptable for a museum to sell work? I don’t know. What’s the museum? What’s the work? Why is the museum selling it? What does the museum intend to do with the money? What are the alternatives to selling? What are the consequences of not selling? Then you take all the answers to those questions and you make the hard decision as to whether the sale is justified.
That’s the way it always should have been. That’s the way it should be when the pandemic ends.
After this, no one should ever again be able to argue with a straight face that there is only one good use of deaccessioning proceeds. We now know with certainty that isn’t the case. The AAMD itself just told us so.