“In general, visual artists do not share in the long-term financial success of their works. […] Instead, the financial gains from the resale of their works inure primarily to third parties such as auction houses, collectors, and art galleries. Moreover, the income typically available to other authors through reproduction and derivative uses of their works is more limited for artists. […] The Copyright Office agrees that these factors place many visual artists at a material disadvantage vis-à-vis other authors, and therefore the Office supports congressional consideration of a resale royalty right, or droit de suite, which would give artists a percentage of the amount paid for a work each time it is resold by another party.”
“Although the works have now been destroyed—and the Court wished it had the power to preserve them—plaintiffs would be hard-pressed to contend that no amount of money would compensate them for their paintings; and VARA—which makes no distinction between temporary and permanent works of visual art—provides that significant monetary damages may be awarded for their wrongful destruction.”
Detroit’s emergency manager Kevyn Orr’s deaccession plans at the Detroit Institute of Arts are at the centre of the continuing struggles related to the value of artworks and the economic plight of the institutions that hold them. A national survey conducted in 2012 by the American Association of Museums reported that 70% of the 383 museums queried are in economic stress, with 32% suffering ‘severe’ or ‘very severe’ stress. Michigan Attorney General, Bill Schuette issued an opinion on June 13th, 2013 in which he categorically affirmed that:
It is my opinion, therefore, that the art collection of the Detroit Institute of Arts is held by the City of Detroit in charitable trust for the people of Michigan, and no piece in the collection may thus be sold, conveyed, or transferred to satisfy City debts or obligations. In issuing this opinion, I recognize the serious financial hardships that face the City, the difficulties that the people who live and work in the City have endured for decades, and the many challenges facing the citizens of the City of Detroit and the State in the future. Yet, in the 128 years since the creation of the Detroit Institute of Arts, at no time have the people demanded that their most precious cultural resources be sold in order to satisfy financial obligations. To the contrary, the citizens of this State recognize that abandoning or selling the public’s artwork would damage not only the City’s but the State’s cultural commonwealth. In Michigan, we not only appreciate our cultural treasures, we guard them zealously in charitable trust for all state residents, present and future.
Schuette’s strong positioning, although in itself not legally binding, confronts deaccessioning adherents with a catalog of contractual and statutory obstacles. Schuette’s role is key, as the core debate will revolve around the nature and scope of fiduciary obligations of those holding the works. The Attorney General has the legal mandate to enforce fiduciary obligations in the trusts which structure the DIA’s collection. As we have seen in the case of the Barnes Museum, the actions of the Attorney General are central to potential outcomes.