Art Law and COVID 19 - Summer 2020
1. Museums and COVID-19: from Deaccessioning to Reopening
Screengrabs of the websites for The Metropolitan Museum of Art (www.metmuseum.org), The Louvre Museum (www.louvre.fr/en), and The Association of Art Museum Directors (www.aamd.org), accessed on June 25, 2020.
Date: June 25, 2020
Author: centerforartlaw
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By Olivia Baker.
Since March of 2020, it is an understatement to say that the world has been completely altered due to the coronavirus pandemic. In the past few months, artists and art institutions faced the ramifications of the pandemic, between canceled exhibitions, dealing with extraordinary financial losses, and numerous layoffs and furloughs. It was reported that, in April 2020 alone, the cultural sector in Italy was expected to lose 3 billion euros and Spain was expected to lose 980 million euros.[1] In the United States, the American Alliance of Museums (“AAM”) announced that American museums were losing at least $33 million a day and estimates that a third will not reopen after COVID-19.[2] Some of the first states to initiate reopening began as early as April 24th and many other states began to follow their lead throughout the end of April into May.[3] While states and other countries begin to reopen, museums have to think about how to approach reopening in a safe manner for both museumgoers and their staff. Deaccessioning has also become a hot issue for museums that may have to sell part of their collections to stay afloat.
Deaccessioning in a Post-COVID-19 World
Art museums are very familiar with the concept of deaccessioning; the mechanism of officially removing an item from the listed holdings of a library, museum, or art gallery, typically in order to sell to raise funds. Deaccessioning a work of art from a museum’s collection occurs through transfer of ownership either to another institution or by individual sale, exchange, or grant. Museums use deaccession to either improve the usefulness of a collection to adhere to the intentions and mission of the museum, or to acquire other works of art that will better suit the needs of the collection.[4]
Under normal circumstances, deaccessioning is considered an ethical violation for an art museum. The ethical dilemma usually comes up in debates about how to use the funds from the deaccessioning process. “Is it worth paying to keep the lights on in the museum when you sell the collection to do so?”[5] The Association of Art Museum Directors (“AAMD”) policy states that deaccessioning may only be done to improve the collection and to further the museum’s long-term curatorial goals. In essence, this means museums can only sell an art collection to buy or improve another collection. Deaccessioning funds should never be used towards operating expenses. This policy is in place so the attention of museums stays focused on the artwork. The policy is a matter usually for the board’s discretion only, but as shown in the 2013 lawsuit against DIA Art Foundation, it rarely goes without notice from the public.[6] The two founders of DIA, Heiner and Fariha Friedrich, filed a lawsuit against both the foundation’s current administrators and Sotheby’s auction house for injunctive relief to prevent the deaccession of works by Cy Twombly, John Chamberlain and Barnett Newman. The Friedrichs alleged that Dia’s board undermined the original mission of preserving the donations for future generations by auctioning these works off to the highest bidder. The case was voluntarily discontinued six months later.
However, due to COVID-19, on April 15, 2020, the AAMD announced that museum’s will not be censured, sanctioned, suspended, or expelled as they usually would. The AAMD reported that the museum’s good faith use of deaccessioning proceeds to pay for “direct care” of the museum’s collections is permitted.
According to the AAMD, direct care is investing a museum’s funds into existing collections by enhancing their “life, usefulness or quality and thereby ensuring they will continue to benefit the public.”[7] The museum must adopt a policy outlining what expenses it considers to be direct care and make the policy outline publicly available. Although this is a very helpful and lenient exception to the AAMD’s typical rules, museums still have to be careful with deciding which funds to use for direct relief. The use of donor-restricted funds is regulated by state law so some museums will not be able to use these funds for direct care needs.[8] In other situations, a gift from a donor can have certain restrictions that are enforced in the contract. Some contracts might forbid an object’s deaccession or restrict what can be done with the sale proceeds. Museums must be meticulous in deciding how to use the new deaccessioning exceptions during the pandemic. In the statement released by the AAMD, it was made clear that the exceptions are temporary and will only be in effect through April 10, 2022.[9]
When a Museum Closes…
Hopefully AAMD’s leniency will be enough relief to help museums stay in business, as 95% of the world’s museums have been forced to temporarily close due to COVID.[10] Phillip Kennicott from the Washington Post explains, “Consider all the ways arts and cultural groups earn money: from ticket sales and admission fees; participation in educational programs; renting spaces for galas and gatherings; investments and endowments; and the largesse of public and private giving. Every one of those streams is now potentially shut off.”[11] To keep communities engaged during the closures, museums have done online exhibitions, seminars, and tours. Although this has helped keep society’s artistic interest peaked, there are a lot of other concerns in relation to the closure of museums. Museums have to think about problems revolving conservation and safety of collections.
Research on the deterioration of the virus is still under development so all current instruction for museums is based on data from general human coronavirus research. The International Council of Museums (“ICOM”) has put together a list of “pandemic guidelines”on how to deal with conservation during the pandemic, such as limiting handling of collections, extending loans, having objects on display cleaned only by trained conservators, and restricting access to areas that cannot be disinfected completely. Museums should also have a quarantine area where infested objects with minimum handling can be separated from other collections. Overall, prudent safety and conservation procedures call for more frequent cleaning of areas where people have access to.[12]
Furthermore, while museums are closed, people and staff (including security guards) are required to remain home, therefore, museums are at a greater risk of receiving unwanted visitors. While the Singer Laren museum in the Netherlands was closed to the public, the Vincent Van Gogh painting, The Parsonage Garden at Nuenen in Spring (1884), was stolen. On March 30, 2020, around 3:15 a.m. the thieves smashed a large glass door at the front of the museum. The museum’s alarm was triggered, but police reached the scene too late and the perpetrators were long gone by the time of their arrival. The painting, which depicts the short time period in which Van Gogh lived with his parents in the garden of the parsonage, is estimated to be worth over £5 million[13] and was on loan from Groninger Museum.[14] Adding to this sad occurrence, this was the only painting by Van Gogh in the Groninger Museum’s collection. Police said that the painting has been added to Interpol’s stolen art database, but there has yet to be any leads on where the painting is and who stole it.[15] In June 2020, a “hostage-style” photograph of the painting was found to be circulating in the criminal underworld.[16] This can be seen as good news, as the painting has not been destroyed.
Museums around the world are taking this incident as a learning lesson. Just because there are no visitors does not mean that there should be less security. ICOM suggests to check security and alarm systems, adapt new procedures and additional protection plans, communicate with police services on a regular basis, collaborate with other cultural institutions that face the same difficulties, and involve neighbors and the local community. While establishing thorough security measures museums might also want to investigate insurance policies. At a minimum, museum insurance should include property and liability insurance coverage to help protect a museum’s building, exhibits, on loan art, and art in storage.[17]
On the topic of insurance, many art-related events have had to be canceled by their organizers, including the Met Gala,[18] Venice Art and Architecture Biennales, La Paris Biennale, Art Basel Switzerland, Object & Thing, New York, and many more.[19] Hopefully, these events were covered by event cancelation insurance, which may contain “force majeure” clauses that explain how risks and losses should be allocated in the event of an unforeseeable external event that makes performance impossible.[20] Depending on the particular language in a given contract, force majeure clauses may not apply to every coronavirus-caused cancellation unless the primary city has declared an official law banning large events. In June 2020, the Art Newspaper reported that UK arts institutions are preparing to file a class-action lawsuit against major insurers for failing to cover business interruption claims during the pandemic.
… Another One Reopens
As the pandemic begins to taper in some states and countries, art museums are beginning to think about how to reopen. The International Committee for Museums and Collections of Modern Art has issued new safety guidelines for reopening museums. The majority were elicited from the National Gallery Singapore, M+ Hong Kong, and Mori Art Museum when they responded to the outbreak of COVID-19 in March. These safety guidelines include temperature screenings of all visitors, implementing contact tracing measures, ensuring all visitors wear masks, suspending large events of 100 or more participants at a time, and suspending guided tours.[21]
Countries may turn to France for advice on reopening systems and procedures, as France began reopening small museums in May 2020. While government officials have not explicitly defined what qualifies as a “small museum”, gatherings will be restricted to no more than ten people and reopening dates will vary depending on if the museum is in a “red” area, where there is a high occurrence of Covid-19, or “green” area where there is a lower risk. For example, the Foundation Giacometti in Paris is considered to be a small museum and reopened on May 15th. The Foundation’s director Catherine Grenier explains, “We’ve decided to open soon because it’s important to serve the public and reintroduce people to artworks after this virtual-viewing period and to say, symbolically, that the world is starting again, and that culture is here.”[22] The Foundation is asking interested visitors to register online so that they can retain relatively small groups. Larger French museums such as the Musee d’Orsay reopened in June and the Louvre, the largest museum in the world, is due to do so on July 7. On the other side of the Atlantic, while the Museum of Fine Arts in Houston, TX was the first major US art institution to reopen in May with strict security measures, The Metropolitan Museum of Art pushed reopening to late August. The former encourages the purchase of advance timed-entry tickets online in order to keep visitors below 25 percent capacity on a room-by-room basis. Masks are mandatory for everyone in the building, visitors will have their temperatures taken upon entering the galleries, plastic panels will be placed in front of the admissions desk and gift shop register, no food or drinks are permitted, no large bags will be allowed, water fountains and the cafe will be closed, and social distancing rules will be enforced at all times.[23] This is likely to be the reality for many museumgoers for months to come, which is a small price to pay compared to the luxury of a quiet and less crowded visit.
Artists, art workers, and institutions are staying hopeful that the world will not abandon them during the pandemic. While museums concentrate on temporary rules for deaccessioning and guidelines for reopening, they will hopefully begin to evolve towards a more sustainable model after the coronavirus pandemic.
Endnotes:
1. International Council of Museums, Statement on the Necessity for Relief Funds for Museums During the COVID-19 Crisis (Apr. 2, 2020), https://icom.museum/en/news/statement-on-the-necessity-for-relief-funds-for-museums-during-the-covid-19-crisis/. ↑
2. American Alliance of Museums, American Alliance of Museums Urges US Congress to Include $4 Billion for Nonprofit Museums in COVID-19 Economic Relief Legislation (Mar. 19, 2020), https://www.aam-us.org/2020/03/19/american-alliance-of-museums-urges-us-congress-to-include-4-billion-for-nonprofit-museums-in-covid-19-economic-relief-legislation/. ↑
3. Sarah Mervosh et al., See How All 50 States Are Reopening, The New York Times (June 8, 2020), https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html. ↑
4. Jennie Nadel, Berkshire Stock: Much to do About Deaccessioning, Center for Art Law (July 6, 2018), https://itsartlaw.org/2018/07/06/berkshire-stock-much-to-do-about-deaccessioning/. ↑
5. Hanoch Sheps, Columbia Law School Event Explores the Legal & Ethical Dilemmas of Deaccessioning as DIA Bankruptcy Pushes the Envelope on Deaccession Debate, Center for Art Law (Nov. 5, 2013), https://itsartlaw.org/2013/11/05/columbia-law-school-event-explores-the-legal-ethical-dilemmas-of-deaccessioning-as-dia-bankruptcy-pushes-the-envelope-on-deaccesion-debate/. ↑
6. Summons, Heiner Friedrich & Fariha Friedrich v. DIA Art Foundation & Sotheby’s, Inc., No. 160379/2013 (N.Y. App. Div. filed Nov. 7, 2013). ↑
7. John Sare & Justin Zaremby, Nonprofits Take on the COVID-19 Crisis: Art Museum Standards Temporarily Relaxed to Help Museums Meet New Economic Challenges, Patterson Belknap (Apr. 20, 2020), https://www.pbwt.com/exempt-org-resource-blog/nonprofits-take-on-the-covid-19-crisis-art-museum-standards-temporarily-relaxed-to-help-museums-meet-new-economic-challenges. ↑
8. See id. (referring to the New York Prudent Management of Institutional Funds Act). ↑
9. Association of Art Museum Directors, AAMD Board of Trustees Approves Resolution to Provide Additional Financial Flexibility to Art Museums During Pandemic Crisis (Apr. 15, 2020), https://aamd.org/for-the-media/press-release/aamd-board-of-trustees-approves-resolution-to-provide-additional. ↑
10. International Council of Museums, Ensuring Cultural Heritage Security During Lockdown: A Challenge for Museum Professionals and Police Services (Apr. 23, 2020), https://icom.museum/en/news/ensuring-cultural-heritage-security-during-lockdown-a-challenge-for-museum-professionals-and-police-services/. 11. Philip Kennicott, The Arts Will Recover from the Coronavirus, as They Did After 9/11. But They Might Look a Lot Different., The Washington Post (Mar. 19, 2020), https://www.washingtonpost.com/entertainment/museums/the-arts-will-recover-from-the-coronavirus-as-they-did-after-sept-11-but-they-might-look-a-lot-different/2020/03/19/40e97950-6934-11ea-b313-df458622c2cc_story.html. ↑
12. International Council of Museums, Recommendations for the Conservation of Museum Collections (Apr. 16, 2020), https://icom.museum/en/news/recommendations-for-the-conservation-of-museum-collections/. ↑
13. Daniel Boffey, Van Gogh Painting Stolen from Dutch Museum, The Guardian (Mar. 30, 2020), https://www.theguardian.com/artanddesign/2020/mar/30/van-gogh-painting-stolen-from-dutch-museum. ↑
14. Laurence Norman & Kelly Crow, Thieves Steal Van Gogh Painting From Museum Shut by Coronavirus, The Wall Street Journal (Mar. 30, 2020), https://www.wsj.com/articles/thieves-steal-van-gogh-painting-from-museum-shut-by-coronavirus-11585586273. ↑
15. Mick Krever & Amy Woodyatt, Van Gogh Painting Stolen from Museum Shuttered by Covid-19 Pandemic, CNN (Mar. 31, 2020), https://www.cnn.com/style/article/van-gogh-stolen-covid-19-intl-scli/index.html. ↑
16. Naomi Rea, A Remarkable Hostage-Like Photograph Showing ‘Proof of Life’ of a Stolen Van Gogh Painting Is Circulating in the Criminal Underworld, artnet news, (June 18 2020), https://news.artnet.com/art-world/van-gogh-hostage-photo-1888189?utm_content=from_artnetnewsbar&utm_source=Sailthru&utm_medium=email&utm_campaign=US%209:40%20a.m.%20newsletter%20for%206/19/20&utm_term=US%20Daily%20Newsletter%20%5BMORNING%5D
17. The Hartford, Cultural Organizations & Museum Insurance Coverage, https://www.thehartford.com/business-insurance/museum-insurance-coverage (last visited June 8, 2020).
18. See Vanessa Friedman & Jessica Testa, The Met Gala Has Been Postponed ‘Indefinitely’, The New York Times (Mar. 16, 2020), https://www.nytimes.com/2020/03/16/fashion/met-gala-postponed.html> (explaining the ramifications and the large amount of money lost from postponing the Met Gala). ↑
19. Artforum, Art World Coronavirus Tracker, (June 1, 2020), https://www.artforum.com/news/coronavirus-art-world-tracker-canceled-and-rescheduled-events-82427. ↑
20. Kate Lucas, How COVID-19 May Impact the Art Law Sphere in the Coming Months, Grossman LLP (Mar. 31, 2020), https://www.grossmanllp.com/How-COVID-19-May-Impact-the-Art-Law-Sphere-In-the. ↑
21. International Committee for Museums and Collections of Modern Art, Precautions for Museums during Covid-19 Pandemic (Apr. 29, 2020), https://cimam.org/resources-publications/precautions-museums-during-covid-19-pandemic/. ↑
22. Anna Sansom, French Galleries and ‘Small Museums’ to Reopen in Stages from 11 May, The Art Newspaper (Apr. 29, 2020), https://www.theartnewspaper.com/news/galleries-and-small-museums-to-re-open-in-france. ↑
23. Taylor Dafoe, The Museum of Fine Arts, Houston, Is the First Major Art Institution in the US to Reopen. Here’s How They’re Making It Work, artnet news (May 19, 2020), https://news.artnet.com/art-world/museum-fine-arts-houston-reopening-1865358. ↑
About the Author: Olivia Baker is a Summer 2020 Intern at the Center for Art Law and a rising senior at Virginia Polytechnic Institute and State University, studying studio art with minors in business and art history.
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