Cultural establishments across the Atlantic are in turmoil. Recently, an Instagram account called on Americans to boycott their museums – some of which have just reopened their post-pandemic doors – in order to denounce racism and discrimination in the art world. One more disappointment for museum institutions which, since confinement, have faced the greatest difficulty: bringing the public back. In addition to the issue of the size of their workforce – such as MoMA, which has definitively laid off more than 17% of its employees – income losses have reached up to 80% and will continue to increase with stagnant tourism. Added to this is a drop in donations from patrons who are usually very present and active, due to the instability of the financial markets. According to the Association of Art Museum Directors (AAMD), many establishments could go out of business if Covid-19 persisted and prevented a normal return to activity. In order to survive, the AAMD recently decided to relax the legal framework for deaccessioning, ie the rules concerning the alienation of goods kept in museum collections.
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Deaccessioning to face the crisis
Thanks to this practice, a public institution such as a museum will be able to part with one of its pieces, for example to sell it at auction. This will be the case on October 15 at Christie’s. Twelve works from the Brooklyn Museum in New York – by Courbet, Cranach the Elder or Corot – will go under the hammer for a total estimate of several million euros. A sum intended to ensure the longevity and conservation of the museum’s collections and to cover its operating costs. Points that did not appear in federal law before. Indeed, according to the ethical rules established by the AAMD, “the alienation of works is a legitimate part of the constitution and maintenance of collections. The funds from the sale of a work can be used only for the acquisition of works ”. In other words, if a museum decides to sell one of its works, it is only for the purpose of modifying its collection. The money should only be used for one purpose: future acquisitions.
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Many museums have used this practice, such as the Met in New York. Since 2004, he has sold hundreds of works, sometimes under the hammer, to acquire new ones, in particular a Tissot painting in October 2013 for more than 2 million euros. Same story with the MoMA which separated – not without making noise – from a Braque in 2001, a Picasso in 2003 and a Pollock in 2004 or last year from the Guggenheim, which s ‘is relieved of a Rothko. Now, this AAMD jurisprudence is outdated. According to the structure, “we are aware of the severity of the current crisis and the immediate financial needs on which many institutions depend”. Thus, and until April 10, 2022, American museums will be able to sell works without any obligation to acquire in return. A welcome survival aid in these dark times, which AAMD had already granted to the bankrupt city of Detroit in 2008 or more recently, in 2018, to the Berkshire Museum in Pittsfield which sold more than 25 works in order to recover on foot.
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As for France, “deaccessioning” has no place there. Drawing its sources from an edict of 1566 – known as de Moulins, taken by the King of France Charles IX -, the principle of inalienability of works prevents the practice. In accordance with article L 52 of the State Domain Code which specifies that “property in the public domain is inalienable and imprescriptible”, or with article L 1311-1 of the General Code of Territorial Communities which prescribes that “ goods in the public domain of local authorities, their establishments and their groups are inalienable and imprescriptible ”. A principle also reaffirmed in the museum law of 2002 which nevertheless provides for improvements. As the art lawyer Simon Rolin specifies, “although the inalienability of public collections is enshrined in law, it is possible to sell certain works”.
Yes, but which ones and under which conditions? “It is provided in the Heritage Code that works belonging to museums in France, as a public entity, may be downgraded after a decision by public authorities. On the other hand, if the property has been the subject of a gift or a bequest, it cannot be downgraded without the intervention of a law ”, adds the lawyer. However, recently, the legislator has sought to establish a relative inalienability for private collections whose acquisition was made with public funds. “For example, the regional contemporary art funds are often associations governed by law 1901, and therefore private individuals, but their collections sometimes contain major works with a high market value. In 2016, the legislator required legal persons wishing to benefit from this label to include in their statutes a clause providing for the irrevocable allocation of property acquired by donations and bequests or with the assistance of the State or a local authority to public presentation. These assets can only be transferred after advice from a commission to public or private non-profit persons such as a foundation and who have previously undertaken to maintain this allocation, ”concludes Me Rolin.