A Possible Conflict By Museums In Art Sales

By JUDITH H. DOBRZYNSKI

Published: February 21, 2000

Taken aback by the disclosure that some museums, like dealers, request a commission when art they are exhibiting is sold, museums around the country scrambled last week to plead innocence, profess ignorance or say that they had stopped doing it. Only one of some two dozen museums surveyed -- the Walker Art Center in Minneapolis, which is widely known for exhibiting the work of new artists -- admitted to the practice.

The museum world has been in turmoil over financing since the fall when the the Brooklyn Museum of Art got into a fight with Mayor Rudolph W. Giuliani over ''Sensation,'' the exhibition of art that is owned and was largely supported by the British collector Charles Saatchi. The latest commotion was set off on Feb. 12.

At a University of Chicago conference on the arts in the wake of ''Sensation,'' Gilbert S. Edelson, administrative vice president of the Art Dealers Association of America, revealed that some museums ask for sales fees. Requiring such a commission could create a conflict of interest, perhaps tempting curators to show work because it would sell rather than because of its artistic merits alone.

Mr. Edelson declined to cite names, but Thelma Golden, who had been a curator at the Whitney Museum of American Art for 10 years until 1998, said that the Whitney had such a provision in its loan agreement while she was there. Interviewed after the conference, several lawyers who review museum loan agreements for collectors confirmed that other museums also had the provision, usually asking for a 5 percent fee. They also declined to name the institutions.

But calls to several museums confirmed that the Whitney was not alone. At one time or another, the New Museum of Contemporary Art and the Solomon R. Guggenheim Museum, both in Manhattan; the Brooklyn Museum of Art; the Seattle Art Museum; the San Francisco Museum of Modern Art; and the Museum of Contemporary Art in San Diego all asked for a commission from the buyer if a work on view was sold. As recently as last year, the Museum of Modern Art requested a ''handling charge'' for works sold in the loan forms it used.

All those museums said that they have changed their loan agreements. Maxwell L. Anderson, the director of the Whitney, said that he eliminated that provision of the museum's loan agreement last fall after learning of it in a review of the museum's policies, which he began after joining the Whitney in September 1998. ''We caught what struck me as a peculiar provision of the loan agreement, and we changed it,'' he said. ''I thought it was very outdated.''

The Whitney stopped collecting the fees years ago, Mr. Anderson said. ''In the 1990's, there were no commissions that we know of.''

Most of the other museums with the provision also said that they received little, if any, money from it. ''We have never collected a commission,'' said Lisa Dennison, deputy director and chief curator of the Guggenheim. ''In an old version of our loan form we asked for a commission of 10 percent, but we dropped the provision about 10 years ago. It's a very difficult thing to enforce.''

Besides, many collectors, or their lawyers, balked at the practice. ''I've always crossed it out,'' said one arts lawyer who declined to be identified, ''and no one has ever objected.''

So, sometime during the last few decades, these museums discontinued the practice or forgot about it. As soon as he read about Mr. Edelson's remarks, said John R. Lane, who has been director of the Dallas Museum of Art for about a year, he reviewed the institution's loan agreement for the first time. ''And I'm happy to say we don't have any clauses on that subject,'' he said. Other museums said they did not know what their policy was.

Among the museums that said they had never asked for a commission are the Metropolitan Museum of Art, the Art Institute of Chicago, the Hirshhorn Museum in Washington and the Museum of Contemporary Art in Chicago.

The museums that once asked for commissions seemed to have reached that position from two perspectives. The Whitney started asking for a commission during the 1930's, when there was virtually no contemporary art market, Mr. Anderson said. The money generated was put into the museum's acquisition fund. Mr. Lane of the Dallas Museum said that the provision was a fairly common part of the loan form until at least the 1970's because many museums grew out of artists' associations.

''But by the 1980's,'' Mr. Lane said, ''interest in contemporary art had grown so that there were other ways of finding support for contemporary art exhibits and, at the same time, the gallery system had also grown strong by then.''

At about that time another group of museums began requesting commissions for that very reason. ''We'd put on an exhibition and a big collector would come in and discover an artist,'' said Hugh Davies, director of the San Diego Museum of Contemporary Art. ''The artist's gallery would make a lot of money and the museum had done all the work. There was a sense that museums were being cut out of the validating process.''

''And at that time,'' Mr. Davies added, ''a lot of people thought that museums should be more entrepreneurial.'' So, several museums started asking for commissions in the late 1980's. Mr. Davies said that museums like his had changed their loan forms simply because the system did not produce anything. ''I'd like to tell you we took it out because we realized it was a conflict of interest and might jeopardize our tax-exempt status, but it was really because nothing was happening with it,'' he said.

Like those museums, the Walker was being entrepreneurial -- out of necessity, it said. David Galligan, the museum's administrative director, said the Walker initiated a commission system in 1995, when federal money for the arts had been cut and other sources of money also dried up. Whenever an artwork was sold during an exhibition or while on any subsequent tours, the museum was to be paid 5 percent of the sale price.

''I see the appearance of a conflict exists,'' Mr. Galligan added, ''but no curatorial decision here has ever been influenced by the potential for gain. It is now part of a review of our practices we're undertaking in light of 'Sensation.' It's my judgment that the likelihood of its continuance is very small.''

Mr. Galligan said the policy was enforced for only one show, ''Brilliant! New Art from London,'' which coincidentally included some of the same artists as ''Sensation.'' The Walker collected less than $4,000 from ''Brilliant,'' Mr. Galligan said. ''We never felt comfortable with it, but it's still on the loan forms,'' he added.

Mr. Davies, a former president of the Association of Art Museum Directors, said the provision was more widespread than people realized. ''I guarantee that after they read your article, a lot of places will discover that they have it,'' he said.

Neither that association nor the Association of American Museums mention commissions in their ethics codes, but both are reviewing their policies and their officials said that the new codes would probably address the subject. ''All museums are properly looking at their conduct to see if it matches a standard, and the standards are changing,'' said Mr. Anderson of the Whitney. ''We're more accountable, and that's a good thing.''

'Sensation,' Gone but Still Provocative

By JUDITH H. DOBRZYNSKI

Published: February 14, 2000

''Sensation'' may have closed last month, but the reverberations linger.

The exhibition of cutting-edge British art owned by the collector Charles Saatchi, ''Sensation'' was meant to increase the audience at the Brooklyn Museum of Art and ended up getting the museum into a court battle with Mayor Rudolph W. Giuliani over city financing. Now it has had a new life in a different context: nearly 400 academics, arts administrators, students and others convened here on Saturday to examine the relationship between the arts and society in the wake of the show.

''The whole controversy has been high entertainment and good instruction,'' said W. T. J. Mitchell, an art historian at the University of Chicago, whose fledgling cultural policy program organized the one-day conference in the ornate maroon-and-gold ballroom of the School of the Art Institute of Chicago. ''One thing I liked about the show is that it burst open the relationship between art and commerce. We even got to read e-mails. The role of big capital in the art world was made visible.''

Even more was revealed at the conference. Gilbert S. Edelson, administrative vice president of the Art Dealers Association of America, surprised many participants with the statement that some museums take a commission on sales of new art exhibited on their walls, just as dealers do.

James Cuno, the director of the Harvard University Art Museums, said he was shocked and called the practice inappropriate. Mr. Edelson declined to name names, but when asked, Thelma Golden, who was a curator at the Whitney Museum of American Art for 10 years, said that the Whitney did it. ''It was in the loan agreement,'' said Ms. Golden, who is now the deputy director for exhibitions and programs at the Studio Museum in Harlem.

Mr. Edelson also cited other museum practices that muddied the distinctions between museums and dealers. Some, including the Metropolitan Museum of Art, sell original prints, crafts and other unique works of art.

At least one, he said, sells original prints on consignment from dealers. And several regional museums, like the Nevada Museum of Art, hold special exhibitions and sales of works by artists in their communities, he added.

''We are pleased to welcome many museums to the ranks of art dealers,'' Mr. Edelson said to laughter. ''We await their application to join the Art Dealers Association of America.''

This being academia, there were few conclusions at the end of eight hours of sometimes humorous debate, discussion that include the modest suggestion from Professor Mitchell, who is also the editor of Critical Inquiry, for a blockbuster show of ''offending images'' where those offended could hurl stones, eggs, paint and dirt as therapy.

The most sobering comments came from David Strauss, a University of Chicago law professor. Although the courts ruled that Mr. Giuliani's threat to withdraw financing from the museum for showing art he thought was offensive was unconstitutional, Professor Strauss warned against relying on the ''false promise'' of the First Amendment for protection against such attacks.

''The message of the controversy to government officials is to be careful about getting into this business of arts funding, because once you get in you may not be able to get out,'' he said. ''The more often there are First Amendment decisions in court, the more powerfully the message goes out to legislators to be careful.''

''This is not a battle that can be won in court,'' Professor Strauss added. ''People who think that there is an important role for the government to play in funding the arts have to win in the court of public opinion.''

Mr. Giuliani declined an invitation to participate in the conference.

So did Arnold L. Lehman, the director of the Brooklyn Museum, who is under fire for allowing Mr. Saatchi to take control of the exhibition and for seeking financing from Mr. Saatchi, Christie's and others with a commercial interest in the art. In a letter to the organizers, with a copy to the museum's lawyer, Dr. Lehman objected to the conference title, ''Taking Funds, Giving Offense, Making Money,'' as inflammatory and judgmental.

Carroll Joynes, the executive director of the university's cultural policy program, said Dr. Lehman had asked that the title be changed, without success. ''In part it was meant to be inflammatory,'' Mr. Joynes said. ''It was meant to start a debate.''

The title, he added, was hardly provocative when viewed in the context of the advertisements Dr. Lehman had chosen for ''Sensation.''

''The bag I got with the catalog had words like vomit, shock and confusion,'' Mr. Joynes said.

But Dr. Lehman was not on trial here, and neither was Mr. Giuliani. Both took some criticism, and both had support (less for the mayor). The program focused far more on issues of public and private financing for museums and the impact on public trust, topics that Richard Epstein, the University of Chicago law professor who helped set the scene, called ''art and the grubby engines that are necessary to drive it.''

The participants' wishful thinking aside, hardly any of them foresaw an increase in government money for the arts. That left the discussion centering on private financing, usually from people like Mr. Saatchi who have an interest in the art. Though museums have long pursued collectors, they rarely discuss details like potential conflicts of interest, and there are no written rules that museums must follow. As a result, whether to show a collection and what arrangements should surround it are decisions usually made case by case basis; the consensus here held that was rightly so.

''Whether a museum should exhibit a private collection depends on whether the collection is important enough to merit a museum show,'' Mr. Edelson said. This time Dr. Cuno agreed with him and asked, ''What kind of collector is Mr. Saatchi?'' Dr. Cuno went on to characterize Mr. Saatchi as someone who bought large quantities of art, showed it in his own galleries, sold some of it (including works by artists in ''Sensation'' after its showing in London) and announced his intention to open restaurants called Sensation that would exhibit his artworks (which has not happened).

''Showing private collections and taking support from private collectors, indeed even from commercial concerns like auction houses and art galleries, are not in themselves opposed to the public mission of a museum,'' Dr. Cuno said. ''It all depends on the character and reputation of the collector.''

In other words, he and Mr. Edelson agreed, Paul Mellon, yes; Mr. Saatchi, probably not.

Mr. Saatchi and Dr. Lehman had a defender or two, notably Professor Mitchell, who suggested that it was late in the game to be outraged when museums pander to the rich to survive. But many more conference participants thought that the Brooklyn Museum violated the public trust.

''The appearance of impropriety is absolutely crucial,'' Dr. Cuno argued. ''Once one loses respect, it takes a long time to recover.''

He suggested that although with ''Sensation'' Dr. Lehman set out to expand his audience to those who felt no connection to the museum, he ended up reinforcing the appearance that the museum is a bastion of the elite united in the collusion of self-interest.

Correction: February 17, 2000, Thursday An article on Monday about a conference in Chicago examining the relationship between arts and society in light of the outcry over the ''Sensation'' show at the Brooklyn Museum reversed the initials of a University of Chicago art professor whose program organized the conference. He is W. J. T. Mitchell, not W. T. J.