Who writes history?: Black Lives Matter and museum deaccessioning


28 January 2021

Two of 2020’s defining themes – COVID-19 and the BLM movement – are set to cast a long shadow over many sectors of our society. Those institutions whose purpose and identity are bound with history are finding themselves having to make once unthinkable decisions, driven not only by dire financial need, but also a shift in what is deemed morally acceptable to own or promote. Against this backdrop, Senior Associate Frances Godden considers the growing pressures for museums to deaccession.

Like many at this challenging time, I’ve been compelled, during my free time, to seek comfort and solace in a simpler past by revisiting classics of the page and screen. Entertaining and distracting though they are for the main part, there is also a sense that history will often repeat itself.

Take, for example, an episode in season one of Aaron Sorkin’s The West Wing, in which the fictional First Lady defends a controversy surrounding the White House’s historic collection of vermeil (gold-gilded silver which in the 18th century was produced using mercury, leading to blindness amongst the artisan craftsmen). When questioned, she replies: “I’m not embarrassed by the vermeil. It’s not like we spent new money on it... it’s our history. Better or worse, it’s our history. We’re not going to lock it in the basement or brush it with a new coat of paint. It’s our history.” Whilst this scene first aired over 20 years ago, its narrative echoes today. 

The powerful Black Lives Matter movement provided a great shock to an art world already being ravaged by the effects of COVID-19. The campaign shone a brighter light on the ethical issues surrounding the circumstances of acquisition of collections worldwide and fuelled activist demand for restitution and repatriation. Whilst this in itself is nothing new – the Elgin Marbles controversy ignites as much passion in debate now as it did a century ago, and repatriation of Nazi-looted artworks is widely supported – the defence of historical context (as used by Mrs Bartlet) can provide insufficient justification for the retention of certain works as calls for redress grow louder. Yet against the call for institutions to review and revise their collections, and the ways in which they are presented, the attempts by some to advance inclusivity and diversity have not themselves gone unchallenged.

Activist demands for colonial-era objects to be returned to their countries of origin have met with varied government attitudes across Europe. Following a report from the Dutch Council of Culture, several major museums have pledged to repatriate looted artworks in an attempt to rectify historical wrongs; an estimated 100,000 artefacts stolen by colonialists could be subject to restitution. In France, a bill to transfer 27 artefacts to Benin and Senegal on an exceptional case-by-case basis was passed. Here in the UK, the destruction of statues and monuments prompted Culture Secretary Oliver Dowden to write an open letter which set out a more restrictive approach to “contested heritage” at government-funded national museums, requiring instead that they “contextualise or reinterpret them in a way that enables the public to learn about them”. The National Trust’s attempt to do this has not been universally well received, leading to challenges that it is acting outside its charitable purposes. Meanwhile, the decision of the Pitt Rivers Museum in Oxford to permanently remove the Shuar tsantsas or ‘shrunken heads’ from their display following an ethical review has caused a fierce backlash from anthropologists who defend their core educational value.

Alongside these ethical pressures, arts organisations are facing unprecedented financial burdens in light of the COVID-19 crisis, prompting many to consider revising their collections in the hope of yielding a return. However, the strict legal framework surrounding disposal – for whatever purpose – must be followed. It is important that all professionals in this field are aware that the custodians of artwork – controversial or not – do not enjoy unfettered discretion or power to determine the future of their collections and the items within them.

A recent symposium on ‘deaccessioning’ held by The Institute of Art and Law (IAL) further highlighted what has become an alarming reality for many cultural institutions both in the UK and abroad. Whilst the term remains undefined in English law, it is broadly used to mean the disposal by a museum, gallery or other heritage institution of works from its permanent collection. The legal framework within which such disposals must occur – if indeed they can at all – is complex and varied, depending on the institution’s own governing framework and the terms upon which the work was acquired.

The IAL’s Assistant Director Alexander Herman summarises the motivating factors behind the impetus to deaccession as the ‘six Rs’, the last two of which have dominated the agenda – and the headlines – over the last year.

  • Relevancy – when a piece is no longer relevant to the institution’s collecting aims.
  • Redundancy – if there are duplicate items.
  • Repugnancy – where an item is in poor or deteriorating condition, or discovered to be fake or causing risk.
  • Re-contextualising – where an item would be best looked after or appreciated elsewhere.
  • Return – legal or ethical restitution or repatriation.
  • Revenue – to raise funds.

The catastrophic loss of revenue experienced by most art and heritage institutions resulting from closures due to COVID-19 has forced their trustees and directors to weigh their custodian responsibilities in the balance of imminent financial failure. A sale at Christie’s in October realised £12.8m for the Royal Opera House after it consigned David Hockney’s Portrait of Sir David Webster in a bid to raise funds.

Across the Atlantic, the US Association of Art Museum Directors relaxed rules over the use of sale proceeds from deaccessioning, allowing them to “support the direct care” of collections for the next two years rather than apply the funds towards replacement works. Syracuse’s Everson Museum subsequently sold Jackson Pollock’s Red Composition for $13m (£10.1m), and the Brooklyn Museum deaccessioned Lucas Cranach the Elder’s Lucretia, on display since 1921, achieving $5.1m (£3.9m).

As an urgent means of fundraising, the temptation to sell the family silver has seldom seemed so pressing. In each case, specific legal advice is required as to the restrictions around disposal, the process to be followed, and conditions as to the application of proceeds of sale. The general principal against disposal is subject to specific exceptions and conditions to be met. Much like a charity’s permanent endowment, artworks and heritage objects cannot be expunged easily, and decisions to attempt it must never be taken lightly.

If you require advice on any of the issues raised in this article, please get in touch with Frances Godden or another member of the Birketts’ Charities Team.

This article is from the January 2021 issue of Essential Trustee, our newsletter for charity trustees and senior management. To download the latest issue, please visit the newsletter section of our website. To keep up-to-date with the latest news, legal updates and seminar information, please register and select the areas that are of interest to you.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2021.

Author

Frances Godden

Senior Associate

+44 (0)1603 542700

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