New York’s Solomon R. Guggenheim Museum deaccessioned ZAO WOU-KI‘s oil-on-canvas Untitled (1958) in March 2019, raising questions about the ethical boundaries of institutions’ roles as cultural custodians. Courtesy Sotheby’s Hong Kong.

The Ethics and Legality of Deaccessioning in Desperate Times

Also available in:  Chinese

Desperate times call for desperate measures. Covid-19 has wreaked havoc all over the world. UNESCO and the International Council of Museums have estimated that 13 percent of the world’s museums may never reopen again, and that 20 percent of museum workers have lost their jobs. Art institutions have not been spared. It is anticipated that the situation will further deteriorate. We have to grapple with questions regarding the pandemic’s impact on the world’s shared cultural wealth, as well as how museums can benefit society’s development in the wake of such closures and within a drastically changing landscape. 

It is in these times that the legality and ethics regarding deaccessioning become more important than ever—notwithstanding that the issue already drew heated debate in less troubled times. Deaccessioning is the formal process of permanently removing an object from a museum’s collection by means that include selling, exchanging, returning, or destroying it entirely. The substantial value of a museum’s holdings means that the proceeds gained from deaccessioning works can potentially solve the immediate financial needs of an institution.

The principal argument against deaccessioning is understandable—it is to prevent errant or rogue trustees from hawking a museum’s valuable artworks for self-interests or to compensate for poor financial management, and in so doing, undermining a museum’s foundational mission of preserving and collecting artworks for the understanding and enjoyment of present and future generations. This reasoning applies even if only a small portion of a museum’s holdings get to see the light of day.

However, reality often gets in the way of these ideals. Deaccessioning may be justified in instances where a museum recalibrates its focus, if the storage and conservation costs become disproportionate, or if a museum is in severe financial difficulty. More benign reasons for deaccessioning include if there are duplicates in the collection, if a better example of a particular artifact can be obtained, or if an object is fake, has physically deteriorated, or is irretrievably destroyed.

For these reasons, professional museum bodies often permit deaccessions within limited bounds, which mandate that the funds derived from deaccessions be used strictly for new acquisitions or for the “direct care” of a museum’s collection. The use of funds for “direct care” is limited to expenses for conservation, storage, and the salaries of curatorial staff required to take care of the collections. Funds cannot be used for operating and maintenance costs, utilities, janitorial services, or construction work. As these ethical codes of conduct are promulgated by professional associations, violators do not break the law per se but are punished by expulsion and public censure.

Of course, a museum can only sell what it owns. A museum must have good and unencumbered title on artworks marked for deaccession, failing which the institution may be exposing itself to legal liability from immediate purchasers and others down the line. The museum may also be acting in breach of trust and in breach of contract if deaccessioning goes against the donor’s wishes and violates an outright restriction against deaccessioning or conditions requiring that a gift be preserved in its entirety or be displayed for a minimum period. Museums may also be subject to national or state laws that prohibit deaccessioning of any kind. Disposing of artworks in excess of its power could expose a museum or its trustees to judicial review, and civil or even criminal liability.

The ability to deaccession also depends on a museum’s structure. In Singapore, where most museums are funded by the state, there is no publicly available deaccessioning policy, despite artifacts having been acquired by public funds or donations. Private museums elsewhere in Asia may also have vastly different outlooks, where museums are run for profit maximization rather than to serve a nonprofit purpose for the betterment of society.

In April, the Association of Art Museum Directors, representing organizations in the Americas, temporarily relaxed its position on deaccessioning in light of Covid-19 and its impact on museums’ revenue streams. It decided that the funds generated from deaccessioning could be applied for the “direct care” of a museum’s collection, which was previously forbidden by the association, and that the income generated by the funds gained from deaccessioning (but not the principal amount) may be used for a museum’s operations and maintenance, regardless of when the works were deaccessioned.

Deaccessioning may be better in the long term. A museum’s collection gets refined. Frontliners—often the greatest advocates for museums—get to keep their jobs. In addition, the fruits of deaccessioning are sweet. The Solomon R. Guggenheim museum’s deaccessioning of a 1958 Zao Wou-ki painting raked in almost USD 15 million for the museum’s acquisition fund at the March 2019 Sotheby’s sale in Hong Kong. Should deaccessioning be too difficult a pill to swallow, museums could also consider collateralizing their holdings and using bank loans for operating expenses.

Prior to Covid-19, museums operated under the illusion that ever-increasing visitor numbers would bolster revenues, and sequestered the possibility of deaccessioning artworks to “keep the lights on.” The post-pandemic world is one where operating costs have increased due to the need to implement social distancing measures, with the number of paying audiences severely curtailed. It is perhaps time to slaughter the sacred cow that is deaccessioning and apply its proceeds towards operating expenses.

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CHRISTIE"S SOTHEBY'S E-flux ARNDT Asian Art Biennale 1 Nov-3 Jan 2021