Whose Art Is It Anyway? The NY Art World puts Brodsky Bill on Slow Track
By Isabel Abislaiman
The Brodsky Bill, which proposes restrictions on museum deaccessioning, has thrust the New York art world in an important debate with the New York State Assembly. Significant questions about art loom over the issues raised by this bill. Does art belong to the public or to the few?
The goal of museums and art institutions has been to expand public exposure to art, while unregulated deaccessions, especially in times of financial trouble, pose the risk of high art ending up in private hands and disappearing from public view. The Brodsky Bill seeks to limit deaccessioning to the sole end of purchasing more art to enhance a museum’s collection, not to resolving financial woes. As a result, the bill has been attacked for attempting to shackle museums’ ability to handle their own accounting and operations. What about the curatorial freedom to determine which artworks are relevant to a museum’s mission and the museum’s traditional discretion about how to run its operations? The New York art world is making sure these issues are addressed in depth before the proposed regulations turn into law.1
A few deaccession sales and a perceived conflict of interest among board members who are vested in artists they collect have raised a red flag in Albany.2 This has prompted some Assembly Members to champion the protection of cultural heritage through limiting museums’ legal faculties as custodians of public collections. So, whose art is it anyway?
Clifford Siegfried, New York State Education Department’s Assistant Commissioner, is reported to have conducted a survey in which as little as 15 to 20 of the 120 museums that responded preferred to be permitted to sell accessioned art rather than face bankruptcy. 3 This survey seems to show there is not that much museum interest as perceived in deaccessioning. On the other hand, Richard Armstrong, Director of the Solomon R. Guggenheim Museum, is reportedly against deaccessioning restrictions.4 In addition, Assemblyman Jonathan L. Bing (D-District 73), who represents the concerns of the major museums in the Upper East Side, has voiced strong opposition to the bill.5
How strong do deaccessioning regulations need to be? Is there a balance? What kind of conditions would make deaccessioning rules acceptable for all?
On January 2, 2010, New York Times Op-Ed Contributor, Judith H. Dobrzynski, offered an interesting and serious solution that may have slowed down the passing of the bill.6 Ms. Dobrzynski proposed to create an entity, akin to an impartial arbitration board, composed of members of the art, legal and nonprofit world, who would implement a formal process of review to assess whether a museum’s proposed deaccession is justified. Then, as proposed by Ms. Dobrzynski, a system led by regulatory entities would kick in to attempt to keep the deaccessioned artwork in a public collection. This proposal has been praised in the art world 7 and deserves Albany’s attention. In essence, Ms. Dobryzynski agrees that deaccessioning should be used as a last resort and her proposal concurs with the legislators’ goal to retain public ownership of the artwork. However, Ms. Dobryzynski’s proposal seeks an organized regulatory system to replace an absolute rule against deaccessions.
On January 14, 2010, the author of the bill, Assemblyman Richard L. Brodsky (D-District 92) and two of its co-sponsors, Assemblyman Stephen Englebright (D-District 4), and Assemblyman Matthew J. Titone (D-District 61), hosted a round-table discussion with 80 curators and administrators from all over the state. 8 Following the round-table, on January 26, Jeffrey Cannell, Deputy Commissioner of Cultural Education for the New York State Education Department, recommended extending the Emergency Amendment of the Rule of the Board of Regents that forbids using proceeds from deaccessioning for payment of debts and expenses. If adopted by the Board of Regents in its February meeting, this emergency action will continue in effect until April 13, 2010. Mr. Cannell anticipates that the proposed revised rule will be presented for permanent adoption at a subsequent meeting.
Meanwhile, Cultural Affairs, Tourism, Parks and Recreation Committee Chair Senator José M. Serrano (D-District 28) has also been holding meetings to discuss the Brodsky Bill. The next meeting is scheduled for February 9, 2010. A further round of Deaccession Roundtables is expected to be held in Albany later on.
There has been much tension about the controversial bill since its introduction in March 2009. Albany still needs time to grasp the complexities of the New York art world. The Legislature can accomplish its goal to keep the cultural heritage available to the public by handling this regulatory measure in the ordinary course of business, instead of rushing it through the legislative process. So let the meetings and roundtables continue before the bill is signed into law.
"This article first appeared in the March 2010 issue of the New York County Lawyers’ Association Newsletter."
Ms. Abislaiman is the principal of Abislaiman Law Offices in San Juan and New York City. Her areas of practice include litigation, art law, estates and real estate. She co-chairs New York County Lawyers’ Association’s Art Committee and is a member of the Fine Art Board of the Instituto de Cultura Puertorriqueña.
1- See Robin Pogrebin, Museums and Lawmakers Mull Sales of Art, New York Times, January 15, 2010.
2- See Robin Pogrebin, Some Object as Museum Shows its Trustee’s Art, New York Times, November 11, 2009.
3- See Lee Rosenbaum, Brodsky Bill: NY Assemblyman Targets Desperation Deaccessions UPDATED, ARTSJOURNAL weblog, Mar. 17, 2009.
4- See Judith H. Dobrzynski, Op-Ed The Art of the Deal, New York Times, January 2, 2010.
5- See Footnotes 1 and 7.
6- See Footnotes 4 and 7.
7- See Sergio Muñoz Sarmiento, CLANCCO:Art and Law, Dobrzynski on Deaccessioning: A Great Solution, an Impartial Arbitrator (UPDATE), January 2, 2010.
8- See Sergio Muñoz Sarmiento, TheDeaccessioning Blog, February 1, 2010.
The Brodsky Bill, which proposes restrictions on museum deaccessioning, has thrust the New York art world in an important debate with the New York State Assembly. Significant questions about art loom over the issues raised by this bill. Does art belong to the public or to the few?
The goal of museums and art institutions has been to expand public exposure to art, while unregulated deaccessions, especially in times of financial trouble, pose the risk of high art ending up in private hands and disappearing from public view. The Brodsky Bill seeks to limit deaccessioning to the sole end of purchasing more art to enhance a museum’s collection, not to resolving financial woes. As a result, the bill has been attacked for attempting to shackle museums’ ability to handle their own accounting and operations. What about the curatorial freedom to determine which artworks are relevant to a museum’s mission and the museum’s traditional discretion about how to run its operations? The New York art world is making sure these issues are addressed in depth before the proposed regulations turn into law.1
A few deaccession sales and a perceived conflict of interest among board members who are vested in artists they collect have raised a red flag in Albany.2 This has prompted some Assembly Members to champion the protection of cultural heritage through limiting museums’ legal faculties as custodians of public collections. So, whose art is it anyway?
Clifford Siegfried, New York State Education Department’s Assistant Commissioner, is reported to have conducted a survey in which as little as 15 to 20 of the 120 museums that responded preferred to be permitted to sell accessioned art rather than face bankruptcy. 3 This survey seems to show there is not that much museum interest as perceived in deaccessioning. On the other hand, Richard Armstrong, Director of the Solomon R. Guggenheim Museum, is reportedly against deaccessioning restrictions.4 In addition, Assemblyman Jonathan L. Bing (D-District 73), who represents the concerns of the major museums in the Upper East Side, has voiced strong opposition to the bill.5
How strong do deaccessioning regulations need to be? Is there a balance? What kind of conditions would make deaccessioning rules acceptable for all?
On January 2, 2010, New York Times Op-Ed Contributor, Judith H. Dobrzynski, offered an interesting and serious solution that may have slowed down the passing of the bill.6 Ms. Dobrzynski proposed to create an entity, akin to an impartial arbitration board, composed of members of the art, legal and nonprofit world, who would implement a formal process of review to assess whether a museum’s proposed deaccession is justified. Then, as proposed by Ms. Dobrzynski, a system led by regulatory entities would kick in to attempt to keep the deaccessioned artwork in a public collection. This proposal has been praised in the art world 7 and deserves Albany’s attention. In essence, Ms. Dobryzynski agrees that deaccessioning should be used as a last resort and her proposal concurs with the legislators’ goal to retain public ownership of the artwork. However, Ms. Dobryzynski’s proposal seeks an organized regulatory system to replace an absolute rule against deaccessions.
On January 14, 2010, the author of the bill, Assemblyman Richard L. Brodsky (D-District 92) and two of its co-sponsors, Assemblyman Stephen Englebright (D-District 4), and Assemblyman Matthew J. Titone (D-District 61), hosted a round-table discussion with 80 curators and administrators from all over the state. 8 Following the round-table, on January 26, Jeffrey Cannell, Deputy Commissioner of Cultural Education for the New York State Education Department, recommended extending the Emergency Amendment of the Rule of the Board of Regents that forbids using proceeds from deaccessioning for payment of debts and expenses. If adopted by the Board of Regents in its February meeting, this emergency action will continue in effect until April 13, 2010. Mr. Cannell anticipates that the proposed revised rule will be presented for permanent adoption at a subsequent meeting.
Meanwhile, Cultural Affairs, Tourism, Parks and Recreation Committee Chair Senator José M. Serrano (D-District 28) has also been holding meetings to discuss the Brodsky Bill. The next meeting is scheduled for February 9, 2010. A further round of Deaccession Roundtables is expected to be held in Albany later on.
There has been much tension about the controversial bill since its introduction in March 2009. Albany still needs time to grasp the complexities of the New York art world. The Legislature can accomplish its goal to keep the cultural heritage available to the public by handling this regulatory measure in the ordinary course of business, instead of rushing it through the legislative process. So let the meetings and roundtables continue before the bill is signed into law.
"This article first appeared in the March 2010 issue of the New York County Lawyers’ Association Newsletter."
Ms. Abislaiman is the principal of Abislaiman Law Offices in San Juan and New York City. Her areas of practice include litigation, art law, estates and real estate. She co-chairs New York County Lawyers’ Association’s Art Committee and is a member of the Fine Art Board of the Instituto de Cultura Puertorriqueña.
1- See Robin Pogrebin, Museums and Lawmakers Mull Sales of Art, New York Times, January 15, 2010.
2- See Robin Pogrebin, Some Object as Museum Shows its Trustee’s Art, New York Times, November 11, 2009.
3- See Lee Rosenbaum, Brodsky Bill: NY Assemblyman Targets Desperation Deaccessions UPDATED, ARTSJOURNAL weblog, Mar. 17, 2009.
4- See Judith H. Dobrzynski, Op-Ed The Art of the Deal, New York Times, January 2, 2010.
5- See Footnotes 1 and 7.
6- See Footnotes 4 and 7.
7- See Sergio Muñoz Sarmiento, CLANCCO:Art and Law, Dobrzynski on Deaccessioning: A Great Solution, an Impartial Arbitrator (UPDATE), January 2, 2010.
8- See Sergio Muñoz Sarmiento, TheDeaccessioning Blog, February 1, 2010.
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