Bench & Bar

MAR 2018

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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11 BENCH & BAR | donations of art subject to gift restrictions. They also argue that collectors won't donate art if museums can sell it. is is implausible, because collectors have many incentives to donate art, including income tax deduction, estate tax avoidance, and prestige. Most collectors donate works museums want, and collectors who donate undesirable works rarely care what happens to them. In any case, the rules allow muse- ums to sell works anyway, so long as they buy more art. Finally, they argue that deaccessioning rules discipline a museum's board of directors, by precluding it from relying on the muse - um's collection as a rainy day fund. But deaccessioning rules ultimately punish only the museum, not the board of direc - tors. Deaccessioning rules do nothing to prevent mismanagement while it is hap- pening. ey only prevent museums from liquidating assets in order to remedy the consequences of mismanagement. Any other charitable organization would be expected to terminate ineffective directors and install a new board capable of preserv- ing the institution. Only art museums are expected to just close up shop and parcel out their assets to other museums. Surely a museum's board of directors can and should authorize the sale of part of its collection in order to preserve the institution. "We had to destroy the museum in order to save it" cannot be the only answer. In any case, the AAM and AAMD deac- cessioning rules are legally toothless. ey can complain about the kinds of deacces- sioning they disapprove, but they can't actually stop it. At the end of the day, muse- ums own their collections, and can dispose of them as they wish, so long as they do so in the best interests of the institution. Indeed, a museum board arguably has a legal duty to deaccession works if necessary to preserve the institution. Unfortunately, all too often state Attor- neys General are persuaded to intervene in deaccessioning disputes, despite the lack of legal justification. For example, when the City of Detroit filed for municipal bank- ruptcy, creditors asked it to sell the Detroit Institute of Arts ("DIA") collection, which was City property. e Michigan Attorney General chose to intervene with a brief making all of the conventional anti-deac- cessioning arguments. e court essentially ignored the Attorney General's brief and allowed the City to sell the collection to the DIA, a compromise solution that both generated assets the City could use to sat- isfy its liabilities to its pensioners, and kept the collection in Detroit. 33 C. OPEN ACCESS ART Art museums collectively own the over- whelming majority of the most important works of art in existence. Many of those works are in the public domain, and repro- ductions should be made available to the public to use as it sees fit. Even works still protected by copyright should be made available to the public, to the extent possi- ble. But historically, many museums have restricted access to their collections, and limited the right to reproduce works in their collections. Courts have explicitly held that copyright cannot protect photographic reproductions of public domain works. 34 Even so, many museums prohibit visitors from taking photographs of works in their collec- tions, and impose contractual limitations on the right to use reproductions of those works. In some cases, artists and collectors have insisted on such restrictions as a gift condition. In other cases, museums have restricted access in the hope of creating a revenue stream through fees. However, in recent years, some museums have begun to take the opposite approach, and focus on increasing digital access to their collections. For example, the Metro- politan Museum of Art recently committed to make reproductions of all of the public domain works in its collection freely avail- able to the public with no restrictions on use. 35 As charitable organizations, muse- ums have a legal duty to benefit the public. While there are many ways to satisfy that duty, adopting an open access approach to col lection management ensures both public benefit and public support. D. CULTURAL PROPERTY While the term "cultural property" has different meanings in different contexts, broadly speaking it refers to any form of property that has a special connection to a particular cultural group or country. 36 Most countries claim ownership of some or all antiquities discovered at archaeolog- ical sites within their borders as cultural property. Countries of origin use cultural property laws to prevent both the theft of their cultural heritage and the destruction of archaeological data. And the Hague Convention invokes cultural property in an effort to prevent the intentional or negli- gent destruction of historic sites in wartime, albeit with limited success. 37 But cultural property laws vary wildly among countries. Some countries only claim ownership of antiquities discovered on public land. Others claim ownership of all antiquities, no matter where they are discovered. And some extend the scope of their cultural property laws to include works owned by private individuals, includ- ing artworks created relatively recently. For example, many European countries restrict the sale or export of artworks located within their borders, irrespective of the provenance or age of the work. Some countries even claim ownership of intangible cultural prac- tices as "cultural heritage." 38 Museums typically run afoul of cultural property laws when they own or purchase antiquities with unclear or disputed provenance. e international market in antiquities consists substantially in looted works. While most countries have always prohibited the importation and sale of stolen property, historically many did not prohibit the importation of property in violation of another country's export restrictions, facilitating the black market in looted antiquities. e UNESCO Conven- tion was intended to address this problem by encouraging countries to prohibit the importation of looted antiquities. Scholars and policymakers disagree about how to address the ongoing illicit trade in antiquities. While most argue for more rigorous enforcement of existing cultural property laws, 39 some argue that existing laws are ineffective and should be revised in light of their underlying purposes. 40 How- ever, the illicit trade in looted antiquities continues, largely unabated.

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