Tuesday, October 27, 2009
Masterpieces of the Universe
In my Art Law class, we cover a variety of issues related to fine art, including ownership and public access. Museums are the largest holders of collections that are accessible to the public, and they are publicly funded. Many also consider some of our largest banks to now fall into that category. Since many bailed-out banks own precious works of art, does the public have the right to see them? The New York Times outlines the issue in great detail. If they don’t display the works, should the public have a say in how they are stored? Are we partial owners of fine art? What should happen to bank-owned art?
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With respect to care, doesn't a bank already have some sort of fiduciary duty to protect its investments? I'm the farthest thing from a banking law expert, so I don't know. But if they do, then isn't this just the case of the application of a general duty to a very specific and different context of facts (highly valuable chattel that requires ongoing affirmative care to preserve its value)?
With respect to making the works publicly accessible, I would think you would have to first ask the question of if (and why) museums have an obligation to make work publicly accessible. Is that obligation created by public funding or by the museums own bylaws which led at least in part to the decision to fund them? Who makes the decision about what is displayed and how often? If we are imposing some sort of obligation enforceable through legal means, how is the exercise of that discretion weighed? Most museums as I understand it only display a small fraction of their collection at any one time.
Posted by: Scott Boone | Oct 28, 2009 3:01:16 PM
These are great comments, Scott. Actually, duty of care is the main issue here because, typically, private owners have no duty of care with respect to their own property, which, in this case, includes valuable chattels. I'm not a banking expert, either, but I suspect they are held responsible for protecting their holdings, but I think the law does not clarify whether tangential "investments" (such as fine art) receive the same protections as do their financial holdings. As for public museums (i.e., those that receive federal, state, and local funding), they are charged with holding items in the public's trust, and the American Association of Museums has very strict guidelines about the care, storage, and display of works. Before the bailout, it was clear that banks were more privately-owned (although they do have FDIC insurance, which is federal). However, with the influx of tax dollars in recent months, they have received more tax revenue than most (if not all) museums, and they own works that rival those found in museums that are publicly funded.
Posted by: Kelly Anders | Oct 29, 2009 10:25:11 AM