The Massachusetts Appeals Court has ruled that the Berkshire Museum may not sell its artworks on view at Sotheby’s, including two famous paintings by Norman Rockwell, deciding last week that such sales would violate prior trusts. Yet this decision is a mistake, as it will limit the ability of nonprofit institutions to respond to changing conditions and evolve their missions.
Consider the museum’s situation: It is in an out-of-the-way part of western Massachusetts, without a strong local donor base, with unsustainable deficits. It also has history and natural science collections, and wants to help fund those other programs to become a high-tech landmark. Admittedly, that doesn’t reflect the preferences of many art lovers in the community, and it isn’t the museum’s original intent. But the museum board made a decision simply to shift focus, not to tear up the institution and start all over again.
Many other American art museums have moved into contemporary art, or feature art by minorities and women, or built extensive online displays, as evolutions of their founding principles. Not everyone is happy with those decisions either, but that isn’t generally a reason for the law to intervene. Instead, museums commonly move into new areas where they can be strong and discard some older activities. As more years pass and technology continues to revolutionize America, it will become increasingly obvious that not every institution set up as an art museum should or will be able to continue to display art.
The paintings for sale were not going to be destroyed, and they might have ended up where more people would see them. Even if private collectors bought the two Rockwells, paintings of that quality usually end up being donated to major museums or lent to exhibitions.
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The sad truth is that the people running the Berkshire just don’t care that much about American art anymore, at least not from an institutional point of view. Given that reality, it’s actually better if they are not entrusted with important artworks.
The court’s decision now means it will be hard to pull off the sale with fully clear rights to the titles, although the court’s judgment will be reexamined in December. Both the uncertainty and the surrounding negative publicity will scare off buyers and may spoil the market for a long time to come.
In general, I favor sticking to contracts for contracts’ sake. But a previous decision by the Berkshire County Superior Court found that the sale would not violate existing laws or agreements. Heirs of Norman Rockwell are arguing he wanted the paintings kept in the community. There is some circumstantial evidence to that effect but no clear contractual commitment.
I don’t view the buying and selling of paintings as a tainted activity in moral terms. Much of the Italian Renaissance was conducted — and created — on an explicitly commercial basis. For that matter Rockwell himself, in his own time and for many years afterward, was derided for having an excessively commercial emphasis. To many it feels like “dirty business” when a museum sells art, but artworks sometimes need to change location to stay relevant, just as museums may need to shift their focus.
The Berkshire argues it will go out of business unless it can sell the artworks. That may be a more subjective judgment, but nonetheless art should be owned by institutions that view it as a vital part of their future. That kind of outcome is what markets tend to bring about.
With this court decision, Massachusetts is moving America’s art world in the wrong direction. The eventual cost may be a politicization of the arts sector and a loss of creative dynamism.
Tyler Cowen is a professor of economics at George Mason University.