Steve Nelson: Sale of Berkshire Museum's art can, must be stopped

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WASHINGTON, Mass.— The controversy over the Berkshire Museum's proposed sale of 40 important works of art continues to grow. At its heart are two Norman Rockwell paintings given to the museum by the artist. They are the linchpin of the museum's plan to use proceeds from the sale. Stop their sale and that plan cannot proceed.

Their sale can be stopped. There is a legal concept called an "implied trust." Even though no formal trust was established when Rockwell gave the paintings to the museum, a court can find that facts and circumstances support its creating such a trust between the parties as a matter of "equity" or fairness.

Rockwell was a friend and neighbor of many people here and used some of them as models. He wanted to give back to the community by making these two paintings available to be seen and appreciated. He entrusted them to the museum for the benefit of the people of the Berkshires.

He did not give them to the museum as a financial asset which could be, in the word of Museum Executive Director Van Shields, "monetized" to support the museum's ongoing operations and remodeling its building. Rockwell's three sons and three grandsons oppose the sale and have stated that it was not his intention for the paintings to be cashed in as Shields would do.

To prevent their sale, a lawyer must step forward, on a pro bono basis, on behalf of the Rockwell family. Counsel would then file suit against the museum and the auction house Sotheby's. In a case of equity, a court has the power to stop something from happening, namely the sale of the paintings, which would remain at the museum under an implied trust.

For the court to create such a trust, it must be shown that otherwise the defendants will be improperly enriched by their actions. The ethical guidelines of the American Alliance of Museums prohibit deaccessioning works of art other than to use the proceeds for preserving and enhancing a museum's collection. The Berkshire Museum's intended use of the auction proceeds violates AAM ethics and is improper. Therefore the museum cannot be allowed to be enriched thereby.

Nor can Sotheby's. Even before the case is resolved, filing the suit would put it on notice that there is a cloud over the title to the Rockwells. As a leading auction house zealous of its reputation, Sotheby's would have no choice but to cancel the sale. For that matter, no one would likely bid millions of dollars for works of art whose ownership is in dispute.

It could be argued that the museum, in seeking to dispose of the Rockwell paintings, has forfeited its right to keep them. So the court could order that the works, and title to them, be returned to the Rockwell family. They would decide how best to fulfill his wishes.

That the museum's plans for deaccessioning the works violate AAM guidelines was first publicly raised in a letter to the editor of The Eagle by Charles Giuliano, publisher/editor of berkshirefinearts.com. He covered the controversial proposal in 2009 by Brandeis University president Jehuda Reinharz to close its Rose Art Museum and sell its collection. Valued at $300 million, it was a tempting target to monetize. But public outcry saved the art and forced him to resign.

Shields has acted deceptively by consigning the works to Sotheby's before publicly announcing his "new vision" plan and secretly by refusing at first to disclose what works were to be sold. This is consistent with his pattern of behavior in a South Carolina museum project, as detailed by the Sept. 10 report in The Eagle.

Deception and secrecy are not the Berkshire values of honesty and transparency. It is important to who we are as Berkshirites that we stand up for those values and stop the sale. Then a renewed process to secure the museum's future can begin.

Steve Nelson is an occasional Eagle contributor.


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