THE ACQUISITIONS SECTION of a collection management policy carefully defines the types of objects that are collected by the museum. It should describe all permanent collections in the museum, acknowledge special collections (e.g., those for educational use or special loans), and may reference legacy collections as well.1 The policy stipulates the means by which decisions are made for accepting objects for the permanent collections, who is responsible for these decisions, and details the legal and ethical frameworks used by the museum for acquiring objects. The acquisitions policy is augmented by a set of procedures for processing objects that are destined for the collections and those intended for research, sale, or other uses.
All accessioned objects are acquired, but not all acquisitions are meant to be accessioned. An acquisition is made by a museum when title of an object is transferred and the museum becomes the owner. Accessioning is a three-part process of acquiring an object (acquisition), taking legal possession of it for the permanent collection of the museum (accession), and documenting it (registration). The process hinges on transfer of title to the museum.
Most museums do not accession every object that they acquire. The process of deciding which objects to accession must be clear. The word accession is derived from the Latin word accessio, meaning an increase (BOX 3B.1). As a noun, accession means something that is added and, thus, is used to denote an object acquired by a museum for its permanent collection. When used as a verb, accession refers to the act of recording or processing an object into the collection. What is important to remember is that to accession an object is the act of recording it as an addition to the permanent collection and assigning a unique number to it that connects an object to the information about it (its documentation).
BOX 3B.1 ACCESSION, ACCESSIONED, ACCESSIONING
In the museum literature, the word accession has often been used without thought to its proper definition. As Rebecca Buck1 pointed out in her historic review of the use of the word, part of the reason for the confusion stems from the fact that accession can be used as a noun, a verb, or an adjective. Malaro and DeAngelis devoted several pages to the meaning of the word accession in the second edition of A Legal Primer on Managing Museum Collections (2012),2 which is worth reviewing when title questions are addressed.
In short, when used as a verb, accession means “to acquire or accept and register or record an object for the permanent collection of a museum; acquisition and registration are generally linked by transfer of title.”3 When used as a noun, an accession means one or more objects acquired at the same time from the same source in a single transaction between the museum and the source. As an adjective, an accession describes an object that has been accessioned.
1. Rebecca A. Buck, “Accession, Accessioned, Accessioning,” in MRM5: Museum Registration Methods, 5th ed., edited by R. A. Buck and J. A. Gilmore, pp. 51–52 (Washington, DC: American Association of Museums Press, 2010), 59–63.
2. M. C. Malaro and I. P. DeAngelis, A Legal Primer on Managing Museum Collections, 3rd ed. (Washington, DC: Smithsonian Books. 2012).
3. Buck, “Accession, Accessioned, Accessioning.”
If an object is a gift, the donor should be informed of the museum’s intended use for the gift (e.g., for the permanent collection or to be used in educational programs) before the object comes to the museum because how the museum uses the object can affect the tax consequences of the gift for the donor (see CHAPTER 7E, “Appraisal”). Objects acquired by the museum may go to the permanent collection, to a hands-on loan collection, to the library or archives, or they may be accepted for use in research (which may mean the eventual destruction of the object) or be sold at a later date. See the sample “Donor Questionnaire with Warranty and Indemnification” in the Collection Forms section.
Acquisitions may be made by:
Gifts may be outright, fractional, or promised and may be unrestricted (free and clear) or restricted (the donor places some stipulation on their future use or ownership). See the sample “Confirmation of Gift Sample Letter” in the Collection Forms section.
Outright Gifts
Outright gifts are straightforward—a donor offers the museum a gift by showing intent; the museum accepts the gift; the object is delivered to the museum. Intent, acceptance, and delivery are the three necessary legal actions that transfer title. Intent may be oral, written informally, or expressed via a deed of gift (see the sample “Deed of Gift” in the Collection Forms section). Acceptance may be oral, but it is usually written in a formal letter and is often formalized by a countersignature on a deed of gift. Delivery is vital; the museum must take possession of the object for the transaction to be complete.
BOX 3B.2 THE WPA AND ALLOCATION
Allocation was the term often used by the US Works Progress Administration (WPA) to describe the transfer of title for works created in the course of its projects. The Operating Procedures section in the Public Works of Art Program Bulletin in 1934, stated that “For the purposes of this section ‘allocated’ shall mean transfer of title” (Section 32, Part A, 1st paragraph). However, the procedures also note a restriction regarding release from the responsibility of custody. In 2000, the General Services Administration (GSA) interpreted the manual to mean that allocated works included transfers of restricted title and that the “receiving agency or institution received legal title to the works of art limited by the purpose stated in the allocation forms and by the regulations.”1 Works of art produced by WPA programs are often allocated but may also be lent to an institution.
If a museum holds federal project works that it received from the federal government it is important to become familiar with GSA terms and uses. All WPA objects should be carefully checked for transfer of title, and communication with the GSA, which currently oversees WPA works, should be initiated if there is any question of status.
1. Available at: https://www.gsa.gov/real-estate/design-construction/art-in-architecture-fine-arts/fine-arts/legal-fact-sheet.
Fractional gifts are generally made to allow the donor to maximize the tax benefit from the donation when the taxpayer’s deduction in any one year is limited (see CHAPTER 7E, “Appraisal”). On advice from a tax advisor, the donor may offer the museum a percentage interest in an object (the amount of the percentage depending on the donor’s allowable deduction for that year). If the museum accepts the offer, a deed of gift detailing the arrangement is produced by the museum in consultation with legal counsel or by the donor’s lawyer. The deed may convey a percentage of the object only, or it may transfer title automatically to further percentages of the work over several years. Fractional gift laws have been evolving rapidly in the United States over the last decade, so it is important that registrars, collection managers, and curators stay abreast of changes in the laws affecting fractional gifts—check for updated information on the US Internal Revenue Service (IRS) website.2
A fractional gift should go through the same acquisition process as any other gift. It is important to note that by law, the object involved in the fractional gift arrangement must be physically in the museum’s possession for a part of each year equal to the percentage owned by the museum. A fractional promised gift in the custody of the museum is treated as an accessioned object, as long as the pledge of the donor to the museum is binding.
Promised gifts may be made by a donor in the form of a letter (or another legal instrument) expressing the donor’s intent to give a specific object to the museum at some future time. Although some museums have a draft format for promised gifts to act as a guide for donors, it is preferable to have the donor initiate the promised gift letter on the donor’s letterhead before the museum and the donor sign a binding agreement. If the donor is unable to make the gift during his or her lifetime, the museum should encourage the donor to specifically include the gift to the museum in a will to ensure that the donor’s intent and promise are carried out.
A promised gift that is in the custody of the museum should be treated as a loan because a promise does not confer transfer of title. Museums should be cautious about making public announcements of promised gifts because the announcement itself may convey some benefit to the donor and put the museum at risk if the promise of the gift is not later fulfilled.
An outright and unrestricted gift is always preferred, although there may be some circumstances in which the object is so important an addition to a collection that some restrictions are acceptable. Depending on the donor and the nature of the restrictions requested, it may be possible for museum personnel to discuss the potential restrictions with the donor to better understand the reasoning behind them, and then negotiate a more acceptable gift agreement.
The most common restrictions requested by donors are to permanently exhibit an object, to keep a collection together in perpetuity, to never deaccession an object, or to return an object to the donor or the donor’s heirs if it is deaccessioned—none of these is practical, so these types of restrictions should be strongly discouraged. More reasonable restrictions include such things as including the donor’s name on the label when the object is exhibited or keeping an important album of photographs together in its original binding rather than unbinding and matting each one separately. In the latter case, the museum must weigh the value of the album to the collection against the possibility that future generations will be hampered by the restriction. All restrictions must be thoughtfully considered and, if accepted, carefully documented in the object records. It is important for future registrars and collection managers to understand why restrictions were allowed when the object was accessioned.
A bequest is a gift that passes to the museum after the death of a donor under the terms of the donor’s will or some other legal instrument. It is important to have evidence of the intended transfer of title on record—usually in the form of a copy of the provision of the will that concerns the gift to the museum and a signed deed of gift—to ensure that the donor’s intent to make the bequest will be carried out and not challenged by the donor’s heirs.
A museum may or may not know about a bequest in advance. Museums are usually notified of a bequest by the executor (legal representative) of the donor’s estate. It is important for the museum to deal with the official representative of an estate and request a copy of the will (or other legal document) that references the bequest. The museum must then decide whether to accept or refuse the gift. It is not mandatory that a museum accept a bequest. If a museum does accept the bequest and receives the object, it will usually be asked to sign both a receipt and a release—a receipt for the object and a release for the estate indicating that nothing more is expected from the estate. The museum should be aware of the fact that the transfer of the object to the museum is not final until probate of the estate is approved by the courts. The receipt and release agreements are not usually prepared until the executor is certain that the estate will be able to pay its bills and give the legatees their designated bequests.
Purchases for museum collections can be made in a variety of ways—at auction, from dealers or galleries, or directly from individuals. Objects can be commissioned, or they may be exchanged through orchestrated deaccession of objects of like value.
If an object is purchased from a dealer or gallery, it is important that the museum have a bill of sale and proof of payment and such documents should be part of the permanent acquisition file. Provenance should always be researched and all provenance information added to the file (see sample “Dealer Provenance Questionnaire” in the Collection Forms section). The museum should make an effort to obtain copyright releases for contemporary works (see CHAPTER 7D, “Rights and Reproductions”).
As issues of provenance and legal export and import become more important, most museums require at least a warranty of title and indemnification for the purchase of important objects. If the object purchased is of a sensitive nature or of very high value, it may be necessary to have a contract of sale to clarify all points of purchase. It is best to go beyond warranties and to confirm legality by reviewing customs papers and searching provenance indices and art loss registers as part of the provenance research.
A bargain sale refers to an arrangement in which a percentage of an object is purchased and the remainder of the object is donated to the museum (see CHAPTER 7E, “Appraisal”) with the result that the object is sold to the museum at substantially less than fair market value with the intention of benefiting the museum by virtue of the reduced price. The vendor, therefore, is also a donor. Properly done, there may be tax benefits for the vendor or donor. The method of transfer of title is a bill of sale, but the museum acknowledges in correspondence to the vendor or donor the fact that the price of the object has been reduced to favor the museum. It is up to the donor to establish any tax benefits with the IRS. The museum, for its part, should be certain that the sale price is substantially reduced. An independent appraisal is advisable to document the discount. The bill of sale and all related correspondence should be part of the acquisition file.
Exchanges are, in fact, a form of purchase but with payment in kind, not in currency. In an exchange, a museum trades objects of equal value with another museum. This involves the deaccessioning of the objects that are traded; the deaccession requires full documentation as well (see CHAPTER 3I, “Deaccessioning and Disposal”). The terms of an exchange should be set in a written agreement and the museum should establish the fairness of the exchange by means of appraisals or other expert opinions. The written agreement and all relevant documents should become part of the acquisition file.
Field collecting is more common in natural history, anthropology, and archaeology museums than in history or art museums, but it may be part of the acquisition process of almost any collecting institution. Field collecting may include objects purchased or acquired during an expedition or scientific specimens or archaeological artifacts collected during a research project. Purchases may be made from persons who made or used the objects. The recording of prove-nience, materials, techniques, and use are vital to the object’s record. Field collections should be accompanied by complete field notes and copies of all permits, licenses, and export and import documents.
Field collecting is subject to many legal restrictions, particularly regulations on export from the country of origin, laws dealing with repatriation to Native American or Native Hawaiian groups, and protected plant or animal species (see CHAPTER 7F, “Implementing NAGPRA” and CHAPTER 7G, “Biological Materials—Fish, Wildlife, and Plants”). The museum must be aware of all pertinent laws and regulations and obtain necessary permits and file customs declarations (if applicable) before bringing material from the field to the museum. The registrar should research the legal title to the collections brought to the museum before the objects go through the acquisitions process.
Sometimes objects loaned to a museum are never claimed by their owners. Several states have adopted abandoned property legislation that enables museums to acquire title to these objects if the owners cannot be located and if specified procedures and waiting periods are followed, a process referred to as conversion (see CHAPTER 3H, “Old Loans and Museum Property Laws”). Conversion may be necessary for found-in-collection (FIC) objects as well. Many states have statutes covering FIC objects (see CHAPTER 3J, “Found in Collection”).
A cogent collecting policy that takes into account current collection strengths and weaknesses must be in place for each collecting area if the museum is to acquire collection objects intelligently. A typical museum policy sets forth the practical and legal considerations that precede an acquisition.
Acquiring objects for the permanent collection is a complicated process for most museums. It must be thoughtful and undertaken with care. The process may begin with a curator who is developing a collection, but gift offers, donations, and purchase opportunities may come unsolicited. In science, anthropology, history, and archaeology museums, research-based field collecting may be an important source of collection objects.
Between the time an object becomes available and when it is actually acquired by the museum, a number of things take place (the order differs depending on the museum):
There are many variations in the acquisition process that follows after the decision has been made to pursue an acquisition, but in all cases, the registrar should be central to the process. The registrar is in charge of coordinating the object and its documentation, bringing it to the museum, and making recommendations (in conjunction with a conservator if possible) about the object’s care and storage needs. The registrar is responsible for making certain that title to the object is transferred and that needed licenses and permits are acquired.
A proposal for acquisition is prepared that explains the reasons the object is desirable for the collection. The registrar begins an acquisition file and makes certain that a temporary number is assigned to the object and that proper receipts have been issued, condition reports completed, and the location of the object noted. It is also good practice to have digital photographs of the objects made at this point.
The deed of gift—a document that is drawn up with advice legal counsel—is prepared by the registrar. The deed of gift can serve as evidence of both an intent to donate and of acceptance by the museum. Three elements are normally needed to complete a gift:
At least two copies of the deed of gift are sent to the donor with a letter requesting that the donor sign and return two copies to the museum. The signed copies are held until the acquisitions committee approves the gift, and then the designated officer for the museum countersigns them and returns one copy to the donor along with a letter of appreciation. The other signed copy goes to the registrar for inclusion in the acquisition file. Some museums do not include a copyright release provision in the deed of gift because often the donor does not hold the copyright for the object being given. If copyright is an important concern but is not covered in the deed of gift, a separate nonexclusive use agreement should be sent to the copyright holder. Be aware that donors of objects, unless they are the creators of the objects, are usually unaware of whether they hold copyright to the objects (for more details, see CHAPTERS 7C, “Copyright,” and 7D, “Rights and Reproductions”).
Depending on the museum’s acquisition policy, gifts, purchases, bequests, and exchanges proposed for accession are usually reviewed and approved by a collections committee or acquisitions committee. The committee may be composed of board members, administrators, curatorial and collection staff members, collectors, specialists in the field, friends of the museum, and in a university museum, faculty representatives. This committee may have the authority to approve or reject acquisitions or to recommend objects to the governing board for final approval. In any case, acquisition decisions should be formally recorded in the minutes of the committee meeting.
The agenda for the acquisitions committee is usually prepared by the registrar and should include a listing of all objects to be considered for acquisition, with complete descriptions of the objects, donor or vendor names and addresses, credit lines for proposed gifts, and, as appropriate, the cost and funds to be used for purchases. If not a member of the committee, the registrar should be notified as soon as possible which objects were accepted for acquisition. Rejected objects should be returned promptly. Accepted gifts should be acknowledged with a letter of appreciation from the director or a curator that is sent with a countersigned deed of gift.
Once an object has been approved for accession and the deed of gift signed or the sale completed, the title to the object passes to the museum. At this juncture, the registrar completes the accessioning process by recording the object as an addition to the collection. An accession number is assigned, and the information in the file that was created to track the object is transferred to the accession file. The accessioning process may include:
The information entered into the registration system may include:
The accession number associates the object with its file and all its documentation, so it is vital to have unique accession numbers that link directly to the documentation. The accession file becomes the repository of all information that comes to the museum regarding the object, including research, photography, condition reports, loans, conservation work, exhibition, and publications.
Policies and procedures should be developed to govern access to permanent collection records. Confidential information such as shipping and insurance histories, appraisals, tax documents, purchase orders, donor addresses, and telephone numbers may be available only to certain members of the professional staff. Access may also be limited to condition notes, conservation treatment reports, and some provenance information. The general public may have access to descriptive information about the object, the accession number, credit line, reference notations, and the exhibition and publication histories of an object. In developing policies to govern access to records, legal advice may need to be sought concerning applicable freedom of information or privacy laws. •
1. Legacy collections are those few objects that may no longer serve the institutional mission but because of legal obligations, history, tradition, or popularity are retained and cared for in the museum; see J. E. Simmons, Things Great and Small: Collections Management Policies (Lanham, MD: Rowman & Littlefield, 2018), 40.
2. Available at: www.irs.gov.
This is an edited and updated version of the MRM chapter by Clarisse Carnell and Rebecca Buck, which acknowledged contributions by Jeanne M. Benas, Jan W.M. Thompson, Ted Greenberg, and Marie Malaro.