By now you've probably heard about (h/t/ bink) the Detroit Emergency Manager Kevyn Orr considering the fire sale of the art assets of the Detroit Institute of Art. Those items, held in the public trust, include works by Matisse, van Gogh, Bruegel, and Rivera, and they could be worth billions at auction. However, museum codes of ethics prohibit such a sale.
I'm going to explore some of the mechanisms by which museums ensure that their collections are not raided for quick monetary gain.
The American Alliance of Museums is the advocacy group that helps the broader museum community define the code of ethics by which museums are governed. From the Code of Ethics:
Collections
The distinctive character of museum ethics derives from the ownership, care and use of objects, specimens, and living collections representing the world's natural and cultural common wealth. This stewardship of collections entails the highest public trust and carries with it the presumption of rightful ownership, permanence, care, documentation, accessibility and responsible disposal.
Thus, the museum ensures that:
collections in its custody support its mission and public trust responsibilities
collections in its custody are lawfully held, protected, secure, unencumbered, cared for and preserved
collections in its custody are accounted for and documented
access to the collections and related information is permitted and regulated
acquisition, disposal, and loan activities are conducted in a manner that respects the protection and preservation of natural and cultural resources and discourages illicit trade in such materials
acquisition, disposal, and loan activities conform to its mission and public trust responsibilities
disposal of collections through sale, trade or research activities is solely for the advancement of the museum's mission. Proceeds from the sale of nonliving collections are to be used consistent with the established standards of the museum's discipline, but in no event shall they be used for anything other than acquisition or direct care of collections.
the unique and special nature of human remains and funerary and sacred objects is recognized as the basis of all decisions concerning such collections
collections-related activities promote the public good rather than individual financial gain
competing claims of ownership that may be asserted in connection with objects in its custody should be handled openly, seriously, responsively and with respect for the dignity of all parties involved.
These ethics are enshrined within the legal documentation that the museum and donors sign, and it is also usually codified within the charter and by-laws of the museum. The process for getting rid of collections (called "deaccessioning") is usually thus:
1) Curators decide certain items are no longer a good fit for the collection
2) Research is done on the original Deed of Gift or purchase agreement to determine if there are special restrictions on how the item(s) can be disposed of. I'll explain this in more detail shortly
3) The Museum's Board votes to permit the deaccession
4) Depending on the method of disposal, a notice is sent out to other museums to alert them of the deaccession
5) The item is sold, transferred, returned, or destroyed
6) The funds that are generated from the sale go back into the collections acquisition fund. It's illegal for the funds to be used for operating costs
You are hopefully getting a sense that getting rid of stuff from a collection is extremely difficult. This is entirely intentional, as museums take their duty as custodians of the public trust very seriously. So these restrictions are put in place to ensure that the museum (or a governing organization like a University or a City) cannot raid the museum to pay for operating shortfalls.
This happened a couple of years ago with the Rose Art Museum at Brandeis University. Brandeis had planned to close the museum and sell off its collection in order to fill operating shortfalls at the university, but the legal tangle of such a move (and the subsequent outcry from students, alumni, staff, and donors) forced Brandeis to keep the Rose open, its collection intact.
As I mentioned above, there are different methods by which collections may be deaccessioned, and there's a hierarchy by which this happens, and selling collections isn't the first option. Usually, the donors, or the donors' estate, get right of first refusal. That is, if the museum wishes to get rid of something, they must offer it back to the donor before they can go on to the other methods of disposal.
The second option is transfer. Museums will often offer lower-valued items to other museums. This ensures that the items are kept in the public trust and go to a trustworthy home.
The third option is destruction. If the item is falling apart or threatens other items in the collection, then the museum may decide to put the item in the dumpster.
The fourth option is sale. Not only do all proceeds have to go back into the care of the collection or the acquisitions fund, but the items must be sold at auction. This is designed to ensure some degree of transparency of the sale, and to shield the museum from any hint of impropriety by private sale to a potential donor.
The Museum Code of Ethics governs everything we, as museum professionals, do. If a museum is seen as breaching those ethics, other museums will refuse to play ball and the museum is ostracized.
Under normal circumstances, selling art to raise operating funds is strictly forbidden by the ethical codes and governing bodies in the museum world. Museums that run afoul of the rules are ostracized, and the threat of no longer being able to mount traveling exhibitions or borrow works is typically enough to prevent such sales — though the degree to which the DIA’s peer institutions would hold it accountable in the case of a forced sale remains an open question.
The DIA has also
just issued a statement stating that, according to the terms of their operating agreement with the city, such a sale is strictly forbidden.
“The DIA strongly believes that the museum and the City hold the museum’s art collection in trust for the public. The DIA manages and cares for that collection according to exacting standards required by the public trust, our profession and the Operating Agreement with the City. According to those standards, the City cannot sell art to generate funds for any purpose other than to enhance the collection. We remain confident that the City and the emergency financial manager will continue to support the museum in its compliance with those standards, and together we will continue to preserve and protect the cultural heritage of Detroit."
As you can see, it would be quite difficult for such a sale by Orr to go through. Admittedly, we all know that Michigan isn't exactly playing lawfully these days, so I have little faith that Orr even cares about the rules above. Regardless, the legal and ethical tangle that such a sale would find itself in is such that this will be in the courts for a long time to come.
UPDATE: There was a good point that came up in the comments (h/t Joybringer) about the arrangement between the City of Detroit and the DIA. The DIA's foundation runs the museum and cares for the artwork, but the City owns the artwork. This is actually fairly common for a lot of municipal museums. San Francisco's deYoung, Palace of the Legion of Honor, and the Asian Art Museum have a similar arrangement. I've not seen the actual Operating Agreement between DIA and the City, but my understanding of it is that the collections were placed under the care of DIA, and they're cared for according to their rules. This adds another legal layer of protection between the City and DIA, but it may just be a paper one.
Edited to add: Hey, wreck list!? Gotta say, I'm glad it's for a topic I'm passionate about. Since I have a few eyeballs on this, I'd like to encourage you to sign up for advocacy alerts from the American Alliance of Museums. Museums frequently find themselves targeted for budget cuts, and only voices from our public minimizes the damage.
Also, if you sign up for an AAM membership, you can usually get free museum admission. It's a great deal for anyone who visits museums a lot (though I'd recommend dumping some cash into the donation box as well - admission fees are one of the largest sources of revenue for most museums). You also get a copy of their magazine, which is really very interesting about what's going on in the field.