http://blogs.geniocity.com/friedman/2009/09/rules-must-allow-for-the-inevitability-of-change-art-museums-and-the-doctrine-of-deviation/ The ways law rules creative endeavors and the ways law itself is a creative endeavor Sat, 11 Feb 2012 13:08:18 +0000 hourly 1 http://wordpress.org/?v=3.3.1 http://blogs.geniocity.com/friedman/2009/09/rules-must-allow-for-the-inevitability-of-change-art-museums-and-the-doctrine-of-deviation/comment-page-1/#comment-2982 Selby Whittingham Sun, 01 Nov 2009 17:12:57 +0000 http://blogs.geniocity.com/friedman/?p=2818#comment-2982 To say that "the entire point of the gift" is "a thriving art museum", with the implication that the latter must be an ever-expanding one, seems to me to beg the whole question. Zaretsky meanwhile seems to be fundamentally hostile to donors' conditions. He asks if the terms of a gift of works stipulating that they should be destroyed after 50 years should be obeyed. Of course such a gift should not be accepted in the first place, and the courts and charity law should have answers. What is badly needed is a legal primer on the matter written not from the point of view of the museums, as existing ones are, but from that of the donor. Merryman and Elsen wrote that "It is important to recognize tht the museum directors, curators, and trustees who deal with the collector in negotiating for the donation are ... experienced professionals... They are out to get the most for their museums with the least commitment to the collector...They will interpret evrything that is said in favor of their museum's interests." (Law, Ethics and the Visual Arts, 1987, II, p.616). Having worked as a museum professional and as a champion of donors, I have come to see that the common assumption that the interests of museum and donor are one and the same is a fallacy, though curators sometimes deceive themselves into thinking that. To do justice to a donor's wishes, one has to be very scrupulous in defining what those are, abjuring all tendencies to speculate about what "he must surely have thought." To say that “the entire point of the gift” is “a thriving art museum”, with the implication that the latter must be an ever-expanding one, seems to me to beg the whole question. Zaretsky meanwhile seems to be fundamentally hostile to donors’ conditions. He asks if the terms of a gift of works stipulating that they should be destroyed after 50 years should be obeyed. Of course such a gift should not be accepted in the first place, and the courts and charity law should have answers. What is badly needed is a legal primer on the matter written not from the point of view of the museums, as existing ones are, but from that of the donor. Merryman and Elsen wrote that “It is important to recognize tht the museum directors, curators, and trustees who deal with the collector in negotiating for the donation are … experienced professionals… They are out to get the most for their museums with the least commitment to the collector…They will interpret evrything that is said in favor of their museum’s interests.” (Law, Ethics and the Visual Arts, 1987, II, p.616). Having worked as a museum professional and as a champion of donors, I have come to see that the common assumption that the interests of museum and donor are one and the same is a fallacy, though curators sometimes deceive themselves into thinking that. To do justice to a donor’s wishes, one has to be very scrupulous in defining what those are, abjuring all tendencies to speculate about what “he must surely have thought.”

]]> http://blogs.geniocity.com/friedman/2009/09/rules-must-allow-for-the-inevitability-of-change-art-museums-and-the-doctrine-of-deviation/comment-page-1/#comment-2841 Ruling Imagination: Law and Creativity » Blog Archive » Cleveland Museum of Art allowed to use 50% of income from trusts for expansion; 1st time in Ohio since 1955. Mon, 12 Oct 2009 23:42:45 +0000 http://blogs.geniocity.com/friedman/?p=2818#comment-2841 [...] follow up to my posts (here and here) regarding the power of museums to deviate from the terms of a donor’s limitations on the use [...] [...] follow up to my posts (here and here) regarding the power of museums to deviate from the terms of a donor’s limitations on the use [...]

]]> http://blogs.geniocity.com/friedman/2009/09/rules-must-allow-for-the-inevitability-of-change-art-museums-and-the-doctrine-of-deviation/comment-page-1/#comment-2822 Ruling Imagination: Law and Creativity » Blog Archive » How do we decide how a long buried corpse would want his art treated? And is the corpse’s former intent all we care about? Fri, 09 Oct 2009 12:49:41 +0000 http://blogs.geniocity.com/friedman/?p=2818#comment-2822 [...] My post last week about art museums and the doctrine of deviation provoked in the comments precisely the kind of discussion/argument that I tried to point out is the whole point: how do we decide how to apply rules or other written expressions when they are applied in contexts that have radically changed. To literally apply the words written by a donor that restrict the use of a gift by an art museum when doing so would threaten the entire point of the gift (a thriving art museum) seems pretty absurd to me. If what we’re trying to do is discern a donor’s intent, shouldn’t we be a little more flexible? [...] [...] My post last week about art museums and the doctrine of deviation provoked in the comments precisely the kind of discussion/argument that I tried to point out is the whole point: how do we decide how to apply rules or other written expressions when they are applied in contexts that have radically changed. To literally apply the words written by a donor that restrict the use of a gift by an art museum when doing so would threaten the entire point of the gift (a thriving art museum) seems pretty absurd to me. If what we’re trying to do is discern a donor’s intent, shouldn’t we be a little more flexible? [...]

]]> http://blogs.geniocity.com/friedman/2009/09/rules-must-allow-for-the-inevitability-of-change-art-museums-and-the-doctrine-of-deviation/comment-page-1/#comment-2818 peter Fri, 09 Oct 2009 01:36:19 +0000 http://blogs.geniocity.com/friedman/?p=2818#comment-2818 Ah, but one man sees a "conveniently available source of money for building work" and calls the use of it an abuse of discretion while another sees a financial threat to the intended purpose of the gift in the first place. Who decides which it is? A court. It all turns on the evidence. I'm certain that the building in Cleveland is constrained in significantly different ways than it might be, say, in London or NYC. Ah, but one man sees a “conveniently available source of money for building work” and calls the use of it an abuse of discretion while another sees a financial threat to the intended purpose of the gift in the first place. Who decides which it is? A court. It all turns on the evidence. I’m certain that the building in Cleveland is constrained in significantly different ways than it might be, say, in London or NYC.

]]> http://blogs.geniocity.com/friedman/2009/09/rules-must-allow-for-the-inevitability-of-change-art-museums-and-the-doctrine-of-deviation/comment-page-1/#comment-2817 Selby Whittingham Thu, 08 Oct 2009 20:09:48 +0000 http://blogs.geniocity.com/friedman/?p=2818#comment-2817 Leolin Price QC writes: "If it was a recent gift for that restricted purpose accepting the gift carried with it acceptance of the restriction; and I cannot see an English court permitting the money to be diverted to repairing the old, or constructing new, buildings. If the gift was not recent and had for some years past been used from time to time to buy additional works of art, cy-pres would not in my opinion enable the fund to be treated as a conveniently available source of money to pay for building work." Leolin Price QC writes:
“If it was a recent gift for that restricted purpose accepting the gift carried with it acceptance of the restriction; and I cannot see an English court permitting the money to be diverted to repairing the old, or constructing new, buildings.
If the gift was not recent and had for some years past been used from time to time to buy additional works of art, cy-pres would not in my opinion enable the fund to be treated as a conveniently available source of money to pay for building work.”

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