The Legacy of the Berkshire: Heartbreak. Now What?

This month, Sotheby’s Auction House will auction works from the Berkshire Museum, a move, which many in the art community have hotly opposed from the beginning. The most succinct headline about the Berkshire controversy was posted by NPR July 30, 2017, “Museum's Plan to Sell 40 Works Has Art World Up in Arms.”

Here we are, almost a year later, and we are still “up in arms,” but now we are all aware that we have lost the battle. The auction is here, and we can barely wrap our collective mind around our frustration, let alone, the long-term implications.

The battle, of course, is over deaccessioning and when it is legal or ethical for a museum to deaccession pieces for purposes other than to support its collection of artwork. In this case, the Berkshire Museum wants to use the funds for capital expenditures.

Photo By Berkshiremuseum [CC BY-SA 3.0 (], from Wikimedia Commons

Photo By Berkshiremuseum [CC BY-SA 3.0 (], from Wikimedia Commons

In the Spring of 2017, the Berkshire Museum consigned 40 works to Sotheby’s but didn’t announce it to the public until July 2017. The hailstorm that unfolded included, pleas from Laurie Norton Moffatt the director and CEO of the Norman Rockwell Museum, where she requested the sale be paused and defended Rockwell’s work stating,

“Shuffleton's Barbershop is not, as has been stated, a redundant Rockwell, a footnote to the superb collection down the road at the Norman Rockwell Museum. It is, rather, a unique masterpiece and one of Rockwell's very best paintings that he gifted to the Berkshire Museum and the people of Berkshire County for education and enjoyment.”

The hailstorm also included opposition by the Rockwell family, multiple lawsuits, and frustration from the art community.  The storm grew as previously secret documents were released and questions were raised as to whether or not the Berkshire Museum actually faces financial doom.

Questions remain as to why the Berkshire Museum started with the auction houses, why didn’t they reach out to the museum community, ask the local community for help, attempt other forms of fundraising or offer the Norman Rockwell paintings to the Rockwell Museum? The list of “Why” and “What were you thinking,” could go on for pages, but we have a few that plague us the most.

Why did the attorney general change her mind?

Nicholas O’Donnell, an attorney that filed a lawsuit again the museum, among others, criticized the Attorney General who initially was opposed to the decommissioning. The Art Law Podcast questioned the attorney general too when they explained how the Attorney General did an “about face” and “abandoned (her previous) position.” They further stated that the Attorney General, “didn’t even mention that about-face…(it was) all of a sudden (and) without explanation.” They said, “That’s the question I would have...asked the Attorney General. …what made you change your mind? ..What is it that happened between the time you filed in support of an injunction to the time that you proposed the settlement to make you change your mind? …from a transparency point of view …the court should have explored that.”

I agree!

 “In February the Attorney General’s office agreed with the museum on a plan for the sale of the works, saying the financially strapped institution needed money to continue operating,” according to an article in the New York Times by Colin Moynihan.

“O’Donnell described the change of heart as an ‘abrupt and unexplained about-face,’” wrote Julia Halerpin in her artnet news article.

I’m with them – what the heck!?  Where’s the explanation?

What was the judge thinking?

The biggest shock is the reasoning behind the judge’s decision where Halerpin claims (in the same article as above) that the judge was “ultimately swayed by the museum’s argument that, without the money generated from the sale, it could be forced to close.”

How is deaccessioning the first step in that process?

Further, Halperin wrote that “the judge reasoned that, while the sale may violate the letter of certain agreements …. those agreements would be rendered irrelevant if the institution (were no longer in business).”

Is anyone else shocked that a judge would indicate these as reasons?

Since when is it acceptable for a judge to break an agreement on behalf of an institution because an institution might run into a financial problem? The court is supposed to enforce agreements, not find excuses to go around them. What kind of precedence is that?

What could have been different?

Easy. The Berkshire could have been honest, upfront and forthcoming. What if they had first tried every other method possible to raise the money? What if they had asked for public support first? The sneaky strategy is what makes us all feel duped.

What do we say about Sotheby’s?

Are we mad at Sotheby’s? On this, I am initially conflicted. Can we blame a business for wanting to make money? This sale makes Sotheby’s money. Simple. On the flip side, would we have wanted Sotheby’s to say no so Christie's would say yes? Would we expect them to give this sale to their competitor? Could we expect two competitors to come together to take an ethical stand? Unlikely. Fair enough because it is not technically reasonable; a business’s purpose is to survive.

Which brings me to the Berkshire, survival for a museum isn’t only about money; it’s about a commitment to a community including earning loyalty from their local community and the greater art community. Felix Simon, put it succinctly when he argued: “the job of a museum is to preserve its collection.” Even though they need money to do this they could have raised it other ways.

Instead, the Berkshire has given the finger to the local community, the museum community, basically everyone that inquires. For whatever reason the Berkshire is in this much of a financial hole, if they actually are in a hole, now that that has been questioned, why didn’t they begin with an ethical way to survive? Why didn’t they attempt other ways to fundraise first?

Sotheby’s, on the other hand, hasn’t broken any ethical violations, or upset its community. Maybe I wish they would have taken a stand on whom the pieces could have been sold to, but at the end of the day, I’m not judging them.

They aren’t the ones with the most power anyhow. Who has the power? The same people who always have the power. The buyers.

What could we do about it?

The Berkshire auction can’t be good for any of us. Could everything held via museums now be fair game? This sale is going to happen, but what can we do about it?

We, the people that purchase the art, that attend the museums, we impact the bottom line.

  • We could all, as a collective art community, not buy anything from the Sotheby’s Auction. But do we want to punish Sotheby’s?
  • We could support both Sotheby’s and every museum that rescues a painting in this sale by supporting them, by pulling any support headed the Berkshire’s way and redirecting it to the new owners’ museums or by donating money to those museums and ceasing to donate to the Berkshire.
  • We could stop going to the Berkshire. I, for one, don’t plan on going there.
  • Anyone with a membership could withdraw a membership.
  • We could fight in our states for laws against decommissioning for overhead.
  • We could do nothing.

If we do nothing then what happens to the value of art hanging on our walls, hiding in our safes, and housed in the museums? Does it all slowly loose allure and value? Is this the decommissioning move that damages value long term?

Simon Felix has been cited above and has covered this story extensively. I’ll let his wise words close here,  

“This story is very important at a national level. If the Berkshire Museum gets away with its current plan, then it will effectively end up creating a playbook for all other American nonprofits looking to get rich quick. …the dreadful precedent that the Berkshire Museum is setting will redound for decades to come. Donors will never again be able to ensure that their wishes will be honored…”

Do something.

What do you think?

  • I’d love to hear from people on both sides of the argument.
  • Are you ill amused with the Berkshire, Sotheby’s, the legal system?
  • Thrilled with the decision?

Let LLTA know. Share your thoughts. Comment below or Tweet us #TheLLTA

What are you going to do about it?

  • Have you planned any actions regarding the Berkshire controversy?
  • Does your state have a decommissioning policy? (p.s. we’re from Washington State – we’re looking into this.)