Elizabeth Huh
Deaccessioning is when objects and art in museums are permanently and formally removed from the museum’s collections.[1] Museums typically have their own deaccessioning policies, procedures, and principles to make sure that deaccessioning decisions are made with care. Indeed, the Association of Art Museum Directors (AAMD), which is an important industry group with members such as the Metropolitan Museum of Art, provides guidelines in its “Policy On Deaccessioning” and “Professional Practices in Art Museums” that members must follow. Its deaccessioning policy as of June 9, 2010, and amended on October 2015, stipulates that “[a]quisitions to or deaccessions from the museum’s collection must be guided by well-defined written collecting goals and acquisition and deaccession principles, procedures, and processes approved by a museum’s Board of Trustees or governing body” and that they must comport with AAMD’s policies.[2] AAMD outlines in great detail how the deaccessioning process should work. For example, the process of deaccessioning should be initiated by the museum’s professional staff and presented to the director, but the final authority for deaccessioning rests with the museum’s Board of Trustees or governing body. Importantly, the policy provides that proceeds from the disposal of the deaccessioned work may only be used for the acquisition of works, not for operations or capital expenses.[3]
Many museums—both big and small—have deaccessioned works, although not all removals has been met with intense backlash or public outcry.[4] Deaccessioning is a highly controversial practice for many reasons. When a gifted or donated work is deaccessioned, the donor, the donor’s heirs, or other stakeholders would understandably be unhappy about its removal and may sue the museum if they feel that the deaccessioning violated their donative intent or the conditions of any agreement that the parties had with the museum.[5] Further, museums serve the interest of the public but deaccessioning works through sale to private institutions may decrease public access.[6] There is a notion that museums hold the objects and the works in public trust, and strict restrictions on the use of funds from deaccessioning stem from the idea that institutions should not use their collections as mere cash reserves.[7]
However, public trust is not a legal doctrine or theory that allows private plaintiffs, on behalf of the general public, to seek legal redress against museums. Instead, deaccession is frequently controlled through self-regulation by the museum’s own deaccession policies and procedures and peer-regulation from other museums.[8] Groups like AAMD sanction actions like the improper use of funds from deaccessioned works through suspension of loans and shared exhibitions between the sanctioned museum and member museums.[9] The law, however, has at times intervened. Rockwell v. Trustees of Berkshire Museum, is a seminal case in which plaintiffs sought to enjoin the sale of 40 artworks under a contract with Sotheby’s.[10]
Deaccessioning is a complicated issue because museum’s interests in deaccessioning are compelling. Museums are put in a tough position when they face financial difficulties and without proceeds from deaccessioning, the museum may not be able to maintain their collections. However, museums were only allowed to use the proceeds from deaccessioning to fund the purchase of art per AAMD’s guidelines. Although, another important industry group, the American Alliance of Museums, has slightly looser restrictions.[11] This longstanding limit by AAMD was eased from April 2020 to April 2022 in light of the financial hardships brought on by COVID-19. AAMD allowed museums to spend funds from deaccessioning on “direct care” of museum collections during the 24-month period.[12] Pandemic-era sales were made to support the wages of staff that managed the collections.[13] This change is now permanent as AAMD amended its professional practices on September 30, 2022, to allow museums to use funds for direct care.[14] The change is still narrow. “Direct care” as defined in AAMD’s professional practices allows only for the conservation or restoration of artworks and not for staff salaries or exhibition costs.[15] There are specific criteria in place that prevent “direct care” from being a carte blanche for funding any and all operating expenses. However, the change is quite recent and deaccessioning remains a controversial practice. Museums are still navigating this change and must grapple with the arts community’s reaction to deaccessioning and continuing broader public scrutiny over such practices.
[1] Bob Beatty, The Deaccessioning Debate in Museums, Hyperallergic (Aug. 2, 2018), https://hyperallergic.com/453416/the-deaccessioning-debate-in-museums/ [https://perma.cc/589Y-K6R9] [https://web.archive.org/web/20230218163253/https://hyperallergic.com/453416/the-deaccessioning-debate-in-museums/]; Anne-Marie Rhodes, Art Law & Transactions 533 (2d ed. 2021).
[2] Ass’n of Art Museum Directors, AAMD Policy on Deaccessioning (2010).
[3] Id.
[4] Katya Kazakina, The Met Museum Is Deaccessioning $1 Million Worth of Photos and Prints to Fill a Revenue Shortfall Caused by the Pandemic, Artnet (Sept. 17, 2021), https://news.artnet.com/market/met-deaccessioning-prints-photos-2010237 [https://perma.cc/G9NR-LVC6] [https://web.archive.org/web/20230218163655/https://news.artnet.com/market/met-deaccessioning-prints-photos-2010237].
[5] Anne-Marie Rhodes, Art Law & Transactions 533 (2d ed. 2021).
[6] Tim Schneider, The Gray Market: Why the Debate Over Deaccessioning Might Really Be a Debate About America (and Other Insights), Artnet (Aug. 27, 2018), https://news.artnet.com/opinion/deaccessioning-american-history-1338137 [https://perma.cc/NMD3-ZMSY] [https://web.archive.org/web/20230218163406/https://news.artnet.com/opinion/deaccessioning-american-history-1338137].
[7] See Beatty, supra note 1; Sarah Cascone, The Brauer Museum Is Under Fire for a $20 Million Deaccessioning Scheme Its Founding Director Deems ‘Utterly Disgraceful’, Artnet (Feb. 13, 2023), https://news.artnet.com/art-world/brauer-museum-controversial-20-million-deaccessioning-scheme-2254805 [https://perma.cc/KC5U-DBK7] [https://web.archive.org/web/20230218163558/https://news.artnet.com/art-world/brauer-museum-controversial-20-million-deaccessioning-scheme-2254805].
[8] Rockwell v. Trustees of Berkshire Museum, 2017 WL 6940932 (Mass. Super. Nov. 7, 2017).
[9] See AAMD Policy on Deaccessioning, supra note 2.
[10] Rockwell v. Trustees of Berkshire Museum, 2017 WL 6940932 (Mass. Super. Nov. 7, 2017).
[11]See Beatty, supra note 1.
[12] Megan Noh, Measured Relaxation of AAMD Restrictions Provides Some Flexibility for US Museums Navigating COVID Impacts, Inst. of Art and L. (Mar. 19, 2020), https://ial.uk.com/measured-relaxation-of-aamd-restrictions/ [https://perma.cc/4DP7-SQ7H] [https://web.archive.org/web/20230218163921/https://ial.uk.com/measured-relaxation-of-aamd-restrictions/].
[13] Alex Greenberger, Prominent Museum Group Amends Policy Allowing for Sales of Art for ‘Direct Care’ of Collection Following Controversy, ARTnews (Sept. 30, 2022, 12:48 PM), https://www.artnews.com/art-news/news/aamd-amends-deaccessioning-policy-1234641312/ [https://perma.cc/S8GV-EVY3] [https://web.archive.org/web/20230218163748/https://www.artnews.com/art-news/news/aamd-amends-deaccessioning-policy-1234641312/].
[14] Id.
[15] Id.