25 ARTISTS AND MUSEUMS
Museums in the United States are usually controlled privately by a board of trustees and supported by tax-exempt gifts and endowments. The development of museums coincided with the growth of large industrial fortunes. The patronage of the wealthy has often been critical to the creation and continued vitality of museums. Because of this, many artists feel alienated from the power structures controlling the museums despite their interest in the cultural institutions that preserve art and make it available to the public. Museums must make difficult decisions, such as whether to acquire art obtained illegally in foreign countries or whether to exhibit controversial art, and the advice of artists might be invaluable. But, since the wider spectrum of issues confronting museums has been considered in other sources, this chapter will focus on the artist’s specific concerns when either loaning or giving art to museums.
Loans to Museums
The concerns of the artist in lending work are quite similar to the concerns when consigning work (discussed on pages 145–146). The most important assurance is that the work will be returned promptly and in good condition or, if this is not possible, that the artist will be reimbursed for any damage to the work or for the cost of replacement.
If the artist simply lends work to a museum or similar exhibitor without a contract, the museum or borrower will hold the work under a bailment and will have to exercise reasonable care in keeping the work. But since neither the museum nor the artist normally will be satisfied with such an arrangement, the best method of guaranteeing satisfaction to both parties is insurance. The museum should provide wall-to-wall insurance in the amount specified by the artist as the value of the work. Wall-to-wall insurance takes effect when the work leaves the hands of the artist and lasts until the work is returned to the artist. The lending contract will usually specify that the museum will not be liable for any amount greater than the stated insurance value, which is likely to be less than the artist’s valuation of the work.
If the museum or other borrower refuses to provide insurance, the artist should either not lend the work or should insist on a provision making the borrower absolutely liable, regardless of fault, in the event that the work is lost, damaged, or stolen.
But even wall-to-wall insurance or absolute liability may be insufficient to protect an irreplaceable work. Attacks on works in museums—Picasso’s Guernica and Rembrandt’s Night Watch, for example—are not uncommon, despite laws penalizing such vandalism. The artist might wish to have certain minimum security precautions specified in the lending contract, regardless of who would have to pay for the work if damaged.
Of course, the lending contract should also specify receipt of specific works described by title, size (and weight for sculpture), and medium. The duration of the loan, and the exact location where the works will be shown, should be included. If work can be sold from the exhibition, as is often the case, the commission rate and other relevant provisions—such as price, time of payment to the artist and risks with regard to the purchaser’s credit—should be set forth. Shipment, storage, framing, photography, restoration, and similar costs will each need to be specified.
Artistic control is also an important consideration. The artist’s work will be exhibited, but in what manner? Publicity about the artist may accompany the exhibition. Reproductions of the works may be used in catalogs, or even sold as postcards or jewelry. The artist will want to control all of the aesthetic aspects of lending work. Even if the copyright for the work is in the public domain, the artist can fairly demand payments for any commercial exploitation of the work by the museum. Certainly, the artist should expressly condition the licensing of any reproduction right on the affixation of copyright notice in the artist’s name on all reproductions. Some remaining uncertainty as to whether a loan to a museum will be a publication suggests that copyright notice should be placed on the work prior to any loan. Also, since the copyright encompasses the right of display (except that the owner of a work may also display it to viewers who are present where the work is), a museum taking art on loan will need the artist’s permission to display the art.
Before sending work on loan to other states, the artist should consider whether any creditors in that state might seize the work. The United States has enacted a statute exempting from seizure works on loan from foreign countries, provided certain requirements are met. Following this lead, New York State has enacted a similar provision for works loaned by out-of-state exhibitors to nonprofit exhibitions in New York State. But the artist with creditors should exercise caution when loaning work in states without such a statute.
Lastly, the artist might well demand an assurance from the museum that the work in fact will be exhibited for the time specified in the loan contract. This provision, like the others, will be subject to negotiation based on the needs of both the artist and the museum.
Gifts or Bequests to Museums
The artist, either while alive or at death, may want to transfer works to museums and similar cultural institutions. If, however, the artist thought the museum would either deaccession (that is, sell) or never exhibit the work, the artist would undoubtedly reconsider. Museums, on the other hand, are reluctant to restrict their flexibility by accepting works with requirements as to exhibition or restrictions against deaccessioning. The moral issues, particularly when a will asks for, but does not legally require, a certain course of action with regard to a collection, can be difficult for the museum. If the museum has accepted legal restrictions, in changed circumstances it may go to court to request a different use for the works than the restrictions allow.
A collection of immense value, like that now housed in the Lehman Pavilion at the Metropolitan Museum of Art in New York City, can be used to gain legal guarantees of highly favorable treatment from the museum. Most artists, of course, do not have collections rivaling that in the Lehman Pavilion. However, their collections might be given intact to a smaller museum or cultural institution that would be willing to make concessions in order to receive the work. In this connection, the agreement between Hans Hofmann and the regents of the University of California makes an interesting study.
The Hans Hofmann Agreement
In 1963, Hans Hofmann made an agreement with the regents of the University of California under which he donated certain works to the University of California as a permanent Hofmann Collection to be kept in a separate wing or gallery as a memorial to Hofmann and his wife, Maria.
Hofmann initially transferred an undivided one-half interest in twenty works to the university, and agreed to transfer the same interest in another twenty works of his choosing before December 1, 1968. An agent of Hofmann’s selection was appointed with the power to sell those works and raise $250,000 for the university before that date. If, by December 1, 1968, or Hofmann’s death, whichever occurred later, $250,000 had not been raised for the university from the sale of forty paintings, Hofmann’s estate would pay the balance.
The university in return agreed to expend $250,000 to build the separate wing or gallery for the Hofmann Collection by December 1, 1968. If the wing or gallery were destroyed, the university would be obliged to rebuild it only to the extent of insurance proceeds.
The Hofmann Collection was then specified to consist of thirty-five additional paintings, ten of which were listed in the agreement and twenty-five of which were to be transferred or bequeathed by Hofmann. The university had the power to accept works transferred and to select from all Hofmann’s paintings if the balance of the paintings were bequeathed.
The university agreed to substantial restrictions over what could be done with the works composing the Hofmann Collection. The Hofmann Collection, or a part of the collection, along with other works by Hofmann the university might have, would be primarily exhibited in a separate wing or gallery. Until December 1, 1993, work by persons other than Hofmann could be shown only if the Hofmann Collection were temporarily exhibited at another museum or gallery. After December 1, 1993, the university could retain the entire Hofmann Collection but would have to exhibit the collection exclusively only thirty days during each year.
Alternatively, after December 1, 1993, the university could sell or exchange twenty paintings from the Hofmann Collection and use the proceeds to purchase modern art considered avant garde at that time. The remaining fifteen paintings of the Hofmann Collection would have to be exhibited primarily in the wing or gallery. Primarily is defined as exhibition during a major portion of the calendar year and not being exhibited only when loaned temporarily to another museum or gallery. Thus a balance was struck that guaranteed either the collection of thirty-five paintings would be exhibited one month per year or the collection of at least fifteen paintings would be exhibited during most of the year.
The agreement between Hans Hofmann and the regents of the University of California is a good example of balancing the needs of each party. Hofmann received guarantees that the collection would be exhibited and would not be deaccessioned. The university received the paintings, a new wing or gallery, and the power eventually either to sell part of the collection or to exhibit the entire collection less often. These considerations are typical and the artist giving work to any museum or cultural institution should certainly try to negotiate similar restrictions.
Rights of the Artist in the Museum-Owned Works
The artist who gives or sells work to a museum should treat the museum like any other purchaser. If the artist wishes to retain rights in the work, such as the power to control the manner of exhibition or to repair the work, the contract of sale should so specify. Similarly, if the artist sells the work to any purchaser, these rights must be retained at the time of sale. Otherwise, when a purchaser gives a work to a museum, the museum will own the work without restrictions. In such a situation the museum may exhibit the work with little fear of the artist being able to take successful legal action.
In the 1976 exhibition, “200 Years of American Sculpture,” at the Whitney Museum in New York City, for example, both Robert Morris and Carl Andre sought to prevent the Whitney from showing certain works. Morris contended the Whitney was showing a damaged work from its own collection rather than any work submitted for the exhibition. Andre withdrew the work he had submitted on the ground that it was placed next to a bay window and a fire exit. He then sought to purchase for $25,000 the work that the Whitney substituted from its own collection for the exhibition. Andre contended that the substitute piece had been incorrectly installed by placing rubber under copper floor pieces. If the artists had retained rights over their works, these controversies would not have arisen. Today, of course, the Visual Artists Rights Act might offer them legal relief based on their moral rights (see the discussion of VARA at pages 69–85).
Also, the museum will have the power to commercially exploit works that it owns, unless the artist retains the copyright. There is no reason for an artist to sell a copyright to a museum, although the artist might be willing to sell certain rights to make reproductions. Museums will, in any case, often pay royalties or fees for commercial exploitation, although exact payments vary and will be completely within the discretion of the museum if the artist fails to retain the copyright.