The donation of artworks to a museum is often characterized as a gift to the general public, as it lets people see and learn about art that until recently was the off-limits personal property of a very wealthy person. It’s not untrue, precisely, but what said public seldom sees is the lengthy negotiations that go into such gifts. Some donations of artworks proceed relatively smoothly while others can be a titanic battle of egos between collector and institution, both of whom have considerable leverage. The collector is dangling a desirable work, the museum is holding out the imprimatur of an esteemed institution and things can get ugly.
When he was director of Baltimore’s Walters Art Museum, Gary Vikan was approached by a collector of pre-Columbian art who was interested in donating approximately half of his collection to the institution. This was all well and good, except he wanted the gift to be transacted in a very particular way: he would arrange to have the Walters given $3 million, and the museum would use that money to purchase the pre-Columbian objects from him. “He chose the works he wanted us to buy from him, and he set the prices,” Vikan told Observer. “He wanted the museum to act as a pay-through, and I thought it was too manipulative. I thought the whole thing stunk.” Ultimately, the gift of artworks fell through, but the Walters Art Museum kept the money, using it to endow a curatorship.
The Boston MFA was more accommodating when, in 2005, it agreed to exhibit items from William Koch’s various holdings, including model ships, antique nautical instruments and paintings of ships and seascapes, as well as the yacht that won the 1992 America’s Cup race on the museum’s front lawn. The show—”Things I Love: The Many Collections of William I. Koch”—was criticized for aggrandizing the billionaire at the expense of the museum’s educational function, although Koch helped finance the show, including paying the cost to move the boat from Rhode Island. He also donated numerous artworks and millions of dollars in cash to the museum. “Whatever Koch wanted he got,” John Cahill, a New York lawyer who has helped negotiate many donation agreements between clients and institutions, told Observer.
In most instances, the battle of wills plays out like an extended conversation that usually begins amicably but may last for quite a while as the details get hashed out, often with lawyers present. Daniel H. Weiner, a partner in the Manhattan law firm Hughes Hubbard & Reed who has negotiated donations with the Brooklyn Museum, the Queens Museum and the Guggenheim Foundation, said that the key points tend to be “recognition of the gift by the museum, either via a press release or signage accompanying the artworks (or both), guaranteed public display of some portion of the artworks for a specified time period, agreement that the artworks will not be deaccessioned for a specified period of time or, if deaccessioned, funds so generated will be used to upgrade and improve the museum’s collections and actions to be taken if in the future the artworks no longer fit the museum’s mission.”
That last point can be a bit tricky, since it is difficult to predict the future. A museum of Modern art may become one of contemporary art, making all those mid-20th-century paintings and sculptures feel out of place. Several institutions, most notably the Baltimore Museum of Art and the San Francisco Museum of Modern Art, have sought to diversify their collections, deaccessioning works by white, male artists and using the money raised from those sales to acquire works by women and minority artists. “We see museums establishing wings to show the work of women artists,” Cahill said, “but, 100 years from now, that might seem weird. Someone might come into the museum and ask, ‘what’s the connection between Mary Cassatt and Lee Krasner?’”
And what to do with these artworks that once were highly sought after by museums? The original donors, or more likely their heirs, may be agreeable to having these artworks sold and replaced by others but still being listed as the donor of the replacement artworks on the accompanying wall plaques. Donors or heirs may ask for the right of first refusal in purchasing back their original gifts, or they may just want their donations returned to them in full. (The family of Avery Fisher was refunded Fisher’s 1973 gift of $20 million after David Geffen made a larger cash gift and won that building’s naming rights at Lincoln Center in 2014.) Written donation agreements include a variety of contingencies and extend over numerous pages.
Agreements made between collectors and museums in years past, when institutions ceded more to donors, sometimes involved the legal system, as deals are unwound when museums look to apply a more contemporary understanding of how they operate. Recently, the Mauritshuis Museum in Amsterdam won a court battle with the heirs of a donor of 25 Rembrandt paintings to keep the artworks despite the institution’s failure to live up to the 120-year-old donation agreement stipulating the institution would never lend the works out and would keep them on permanent display. Collectors of means who cannot abide the idea of not maintaining control beyond the grave, such as Isabella Stewart Gardner in Boston, Albert Barnes in Philadelphia and Eli Broad in Los Angeles, often simply create their own museums, hoping for the best.
Compromise is more common, because both sides want something. Donors want their taste, wealth and cultural vision recognized through announcements of their gifts (or “promised gifts” if the actual donation won’t be made until some future point, such as upon the individual’s death), wall plaques, board seats, special exhibitions and their name on a gallery, a wing or even a whole building. “Some donors prefer to remain anonymous,” Weiner said, while others court publicity. “Having your name in lights is a thrill for many, and recognition of one’s philanthropic generosity is not unreasonable.” But after controversies involving the Sackler family, which owned Purdue Pharma, maker of OxyContin, a drug strongly associated with the opioid epidemic in the U.S., some institutions have begun including clauses that allow them to remove donors’ names from their walls.
During well-run negotiations, trust is built between donors and institutions, although promises only extend so far into the future. A collector and museum director may see eye to eye on everything, but directors retire or go elsewhere, and their successor may have different ideas. Future curators, too, may want to be told how specific artworks are to be displayed contextually. “Collectors tend to trust the institution and understand that most of our artworks cannot be on view,” Stephan Jost, director of the Art Gallery of Ontario in Canada, told Observer. “I can think of only one case where someone asked for a board resolution to ensure a work, a major Impressionist piece they intend to leave the museum in their estate, would not be deaccessioned in the future.” Hand-holding helped secure the gift.
When gifts are promised to an institution, to be donated at some perhaps unspecified point in the future, museums often treat the announcement in the same way as an actual donation, with press releases and parties that unofficially bind the donor to his or her pledge. Yet in most cases, such promises are not legally enforceable, even as institutions seek to tie the collectors to the museum as closely as they can.
One hiccup involves collectors with large but varied holdings who expect that the institution will not only take everything but also exhibit it all rather than putting objects in storage. “Donors absolutely do not want cherry-picking,” art lawyer Leila Amineddoleh told Observer, but they may not have much choice in the matter. Museum directors and curators don’t want their hands tied by donation agreements that limit what they or future staffers can display and keep. She advises prospective donors to split their gifts among several institutions. “For example, fine art may go to the Museum of Modern Art, while Old Masters go to the Met, jewelry and furniture go to a design museum and research pieces, such as less valuable artifacts, may go to a university museum.”
The respective esteem and size of the proposed donation on the one hand and that of the recipient museum on the other help guide how the conversation will go. Highly prestigious museums like the Met and MoMA have more leverage than most to set the terms but, as the recently announced merger between the Metropolitan Museum of Art and Ronald Lauder’s Neue Galerie has shown, collectors of highly sought-after artworks can approach museum directors on an equal footing. And an additional donation of money that covers the cost of exhibitions, research, publications, conservation and climate control, can do a lot to smooth over areas of potential conflict.
Collectors may also have an upper hand when more than one museum is vying for a donor’s collection—the one most amenable to a donor’s wishes or demands is likely to win the collection. Ironing out the details can be onerous but, as Weiner said, “there is no set time, since there is seldom great urgency on the donors’ part, as they often have other unrelated issues on their plate. And as much as museums would like to ‘lock down’ a donation, they do not want to pressure donors to commit. Especially where the prospective donation is significant vis-à-vis the museum, it is forced to play a waiting game.”
