Erin Donnelly has just informed me that Art21 has just launched what appears to be a timely and exciting program dealing with ethics and law. The Flash Point program, The Ethics of Art, will explore the issue of ethics in art from a variety of perspectives.

Throughout this topic, we’ll feature artists who make this ethical debate a focus in their work, from artists who question the role of the institution, such as Hans Haacke or Marcel Broodthaers, to artists like Alfredo Jaar, who examines the disparity between an oil-rich government and a poverty-stricken populace in his work Muxima.

Ethical decisions also factor into the artistic process. Does a photographer who sells a portrait owe anything, financially or psychologically, to the work’s subject? What kind of ownership does an artist have over reproduced images of his or her work? We’ll also look at the discussions taking place around the use of animals in art[.] Ethical issues can even come into play after an artist’s death, especially in the handling the artist’s estate and the management of his or her legacy.

Controversies and arguments abound as ethical decisions, or the lack thereof, play a role in institutional practice. With the ever-shrinking gap between commerce and culture, the prioritization of good business over public service creates an increasingly blurry set of ethical guidelines. Collector-based exhibitions, conflicts of interest, deaccessioning practices…do museums have a responsibility to their public? And if so, is this a part of institutional culture and is it being taught in today’s museum studies programs?

Here are some topics they’ll cover:

Another relevant subtopic would analyze the distinction between ethics and law, or the “should” and the “can,” and perhaps what the artist’s role is in defining and blurring these two discourses.

Judith Dobrzynski, a former reporter and editor at the NY Times, wrote yesterday on a very interesting alternative to the deaccessioning fight. In brief, she argues for an “impartial arbitrator,” which would hear a museum’s argument and need for deaccessioning art to pay the bills.

Maybe it’s best to amend the unwritten sales ban, but not end it. What if a museum had to argue its case for de-accessioning art before an impartial arbitrator? This neutral party would need to be schooled in art, art law and nonprofit regulations. [bold mine]

If done properly, this is actually the best solution put on the table so far, and to my delight (and self-serving position) something not too far from what I have argued on my Deaccessioning Blog.

THE squeeze is on. Museums everywhere are having trouble making ends meet, what with the overblown expansions they’ve made, the decline in investment income and the steep drop-off in contributions from foundations and individuals. Many have cut staff, frozen pay, trimmed exhibition schedules and slowed or stopped acquisitions. For some, that may not be enough: the American Folk Art Museum, to cite one example, recently admitted that it isn’t making debt payments.

Dobrzynski seems to be reigniting, in an academic and open town-hall-meeting of sorts, the deaccessioning debate started in early 2009 over the Rose Art Museum, and being the first in 2010 to realize that the museum economic disasters are intensifying and not-at-all decreasing. She sites others on her corner with similar thoughts.

What’s next? In some corners, there’s fear that museum officials will do what is absolutely forbidden by art-world rules: raise operating cash with a sale of artwork. Already some respected figures — David Gordon, former head of the Milwaukee Art Museum, and Richard Armstrong, director of the Solomon R. Guggenheim Museum, for example — are saying that the rule against selling art for any purpose other than buying more art is wrong.

What do you think? Deaccessioning Arbitration and Regulation Panel (DARP)? That’s my vote! Good start for 2010. Judith’s article in its entirety here.

UPDATE: January 4, 2009

Judith has a few more thoughts on her op-ed on her blog, and here are my thoughts regarding lawyers as arbitrators.

Copyright, copyright, copyright. It’s all copyright. Writing, sculpture, photographic images, paintings, a postage stamp. The Little Mermaid, web aggregators, J.D. Salinger, Mannie Garcia, Shepard Fairey, the Associated Press, Patrick Cariou, Richard Prince, Frank Gaylord, the United States Post Office: all involved in a copyright dispute of some sort. To say that heightened awareness of copyright issues is due in large part to the internet is an understatement. Realistically speaking, original creators are realizing the financial potential of their creations and, unlike before, the nice-guy attitude is relinquished, and rightly so. It is time that a nation founded on property principles revisits the dilapidated state of its property rights, primarily those of intellectual property. It is time that congress and courts restore to property owners their constitutional right to exploit or dispose of their property as they see fit.

This is not to say that all uses or transformations of an original artist’s work should be criminalized or made unlawful, but rather that the courts should look with utmost caution and skepticism at the secondary production and rigorously question the ease with which it was produced. It has become much too facile for artists to wake to a cup of coffee and sit at their desktops, click on Google Images and steal away. If the argument is that the internet has in fact heightened the mass dissemination of images, sounds, and texts, then it logically follows that finding the original author and creator is just as simple. Most websites have contact information for their creators and editors. Why can’t secondary users contact the original creators and ask for permission, license or, simply put, ask for an outright sale of the work?

And why the selective reasoning by artists on the applicability of fair use: the continued insistence that it’s ok to steal from someone else yet no one else better steal from me? Does this self-entitlement to anyone’s cultural goods hinge on the classist and elitist distinction made between fine artist and craftsman, between contemporary artist and technician? Isn’t this the same distinction that many of the artists siding with Shepard Fairey and the U.S. Post office helped to deconstruct: the blurring of craft and high-art? What makes Frank Gaylord (the sculptor and copyright owner of the Korean War Veteran’s Memorial) and Mannie Garcia (the photographer who shot the Obama image for the AP) any less of an artist? Should a “strict scrutiny” style structure be applied to “fair use,” favoring original authors and creators, regardless of their standing on the artist/craftsman scale? It’s time that U.S. courts put an end to the belief by many that it’s ok to make a bountiful living off the work of someone else.

How Will I Laugh Tomorrow?

While museums continue to suffer closings, layoffs and cutbacks, the College Art Association initiates an anti-deaccessioning petition. This position is absurd at best and irresponsible at worst. Donors will continue to gift artworks to museums and public art institutions regardless of deaccessioning. Barring a flop by Obama and the states on tax-deductible donations, the incentives (financial and tax-wise) are and will remain highly lucrative for and beneficial to donors. The financial calamity we have experienced should tell us that if the general “public” is skeptical of funding a nation-wide healthy system, they are most certainly against any further funding of the arts through higher taxes. There are more than enough ethical and legal arguments for allowing museums and public art institutions to deaccession artworks for general and operating support. Among these of course is a constitutional right of a property owner to exploit and dispose of her property as she sees fit. Barring any unbreakable donor intent clauses or other legal restrictions, if the gifted artwork is the sole property of a museum, it stands to reason that it is the museum, as property owner, that has sole discretion of the artwork’s use. The continued idealization of art and of artworks as existing outside a capitalist profit-driven structure and the perverse negation of its commercial status will only further the demise of its production and its reception.

For those keeping tabs on the deaccessioning wars, a couple of notable stories have come out this week. For starters, it looks like New York’s Brodsky Bill–which will create rules for deaccessioning of items in a museum’scollection and regulate the use of funds from disposed items–is on the fast-track to being passed.

Pro-deaccessionists are hard to come by, but this week Guggenheim Director Richard Armstrong weighed in (at the heavyweight category), and basically opined that the deaccessioning self-righteousness of “provincial” art institutions will only hasten their death.

Christopher Knight took offense to our brief analysis of his attack on The Art Law Blog’s Donn Zaretsky, Art in America, and blogging in general. His remarks were made availabe earlier this week, but in case our readers missed them, here are his comments:

lambast, verb (informal) “to thrash or scold severely”

Here’s how I lambasted blogging as a critical apparatus in the post to

which you refer:

“…to my knowledge he’s never made a sustained argument explaining

[his position]. Usually it’s just asserted in a quick comment on a

deaccessioning story in the news, in a snarky reference to a quote from

someone else (including me) or even as a stand-alone non sequitur. Such

is the nature of routine blogging.”

Wow! What a thrashing! Call 911!

Routine blogging is not conducive to extended argument, as I know

because I do blog. As I also know, it’s easy to step outside

routine–if one actually has a sustained argument to make about a major

issue.

However, Knight must agree that given his use of “quick comment,” “snarky reference,” and “stand-alone non sequitur” followed by the conclusory and unanalyzed “such is the nature of blogging,” one cannot help but make the logical conclusion that Knight believes all blogging is genetically impotent. Here is the direct quote from his LA Times story:

Usually it’s just asserted in a quick comment on a deaccessioning story in the news, in a snarky reference to a quote from someone else (including me) or even as a stand-alone non sequitur. Such is the nature of routine blogging.

We agree with Knight that many times blogging can be “snarky,” and used solely for “quick commentary.” In fact, we at Clancco practice the latter many a time. Yet this must be accompanied by a brief explanation. Those of us that practice law are many times ethically (and legally) obligated to abstain from legal commentary or analysis for many reasons. However, given these restrictiosn, this does not keep many of us from indexing and highlighting the important (and incidental) news surrounding visual culture and law.

We would like to make two suggestions to Knight: one, to not take the emotional and easy way out of what could be an enlightning and productive discussion about the art of deaccessioning, especially given the current crisis. And secondly, that if there is a strawman that was created, it was the classic and predictable one of the “lawyer as ambulance-chaser.” We can guarantee Knight one thing: people, including artists, will never need an art critic in a time of personal crisis; we all know who will be called upon.

Hot off the Zaretsky v. Knight boxing match, ignited by Zaretsky’s Art in America article on deaccessioning, comes a new deaccessioning, this time from the Montclair Art Museum in Montclair, N.J.

We’ll cover the Zaretsky v. Knight fight soon, but for now this new deaccessioning by the Montclair Museum serves only to strengthen Donn’s claim that museums will find other creative means to sidestep the strict Association of Art Museum Directors (AAMD) regulations.

From the Wall Street Journal:

On March 23, after a “strategic review of its operations and capitalizations,” the Montclair Art Museum in Montclair, N.J., announced … the sale, or “deaccession,” of 50 works from the museum’s permanent collection, among them a Jackson Pollock drawing valued at $300,000 to $500,000 and several Hudson River School and American Impressionist works with estimates ranging from $25,000 to $300,000, according to a prospectus prepared by Christie’s. The auction house believes the sales will generate between $2.9 million and $4.3 million for the institution, which says it will use the funds for future acquisitions.

James Panero, the WSJ journalist seems to take a similar anti-deaccessionist position as that of Lee Rosenbaum, Tyler Green, Christopher Knight, and countless other anti-deaccessionists, guided in large part by emotive and non-sensical reasons.

To read Christopher Knight’s personal attack on Zaretsky, bloggers, Art in America, and to some extent Zaretsky’s argument in Art in America, click here (note Knight’s lambasting of blogging as a critical apparatus, yet delivered via the same means Knight critiques–a blog). Zaretsky’s on-point counter-attacks can be read on his blog, here (and there are quite a few of them).

Unlike Karen WIlkin’s emotional article in today’s WSJ, Daniel Grant provides Brandeis fans with another clear, concise, and neutral outline of the Rose Art Museum fiasco (two if you count “When Going Gets Tough” on the same page). He brings a fresh take on pro and contra positions to the closing and selling, as well as the legal issues with “donor intent.” He also gives lengthy attention to the selling and buying of art and stocks during this time, as well as the tax consequences that could arise for donors. Lastly, he also covers why Brandeis would be better off by selling via auction rather than private sales. Rose Art Museum lovers looking for irrational and emotional “reasons” need not read this article; you won’t find it.

An example of why Brandeis is doing the right thing:

University of Chicago economist David Galenson…speculated, however, that university trustees may have seen their principal donors tapped out from the last fund-raising campaign and that Brandeis was not in a strong position to borrow funds from banks. “If other options are closed off, it’s not an unreasonable position to say that this is an educational institution in financial trouble and that art is an asset like any other, so why not sell it.”

True. We don’t know what financial disasters await Brandeis, and we certainly are not in the position to cry over sold artwork when, and as others have pointed out in the last week, a university’s mission should be narrowly tailored to academics, professional training, and education. Many will argue that access to art is part of this education, but no one said that a university had to supply what is already present outside a university context.

Additionally, Daniel Grant has another brief article on the dreaded “prissy fatwa,” deaccessioning, as well as news that The National Academy may have more artworks on the chopping block.

Art isn’t a lost cause at Brandeis. The university plans to reopen the Rose Art building as an arts center, focusing on student and faculty exhibitions, with studio space for making art and gallery space for imported shows. “We want to be sure we have art on the campus even if we don’t have art,” said Marty Wyngaarden Krauss, the school’s provost.

Enjoy!

There’s a big brawl brewing all over the blogosphere over Brandeis University’s decision yesterday to hold a fire-sale of all its artworks located in its Rose Art Museum. Read more on this story in our Deaccessioning Blog here, as well as Donn’s take here and Rosenbaum’s take here.

For an update on the latest controversies regarding museum deaccessioning practices, visit our Deaccessioning Blog.