Tuesday, October 15, 2013
The Remains of a Detroit Public Library
Those opposed to deaccessioning may want to take a quick peek at these eerie, and sad, images of the abandoned Mark Twain Public Library in Detroit.
Wednesday, October 9, 2013
What do Detroiters & Michiganders think should happen with the DIA's collection?
Dear Reader: My good friend and soon-to-be art lawyer, Dani Johnson, has generously agreed to share her thoughts and research concerning the city of Detroit, its pending bankruptcy, and the possible deaccessioning of the Detroit Institute of Arts collection. Dani's first blog entry was published Monday, the second yesterday, and the last one today.
Most pieces I’ve read in the press either adamantly oppose selling any art or strongly advocate for doing whatever is necessary to help the City financially, including selling some of the DIA’s art. After talking with family, friends, and friends of friends who live and/or work in the Detroit area about what they think should happen, the answers I’ve gotten can best be summed up as: it’s complicated.
Obviously no one wants to break up the DIA’s outstanding collection: in addition to the DIA’s importance as a cultural institute in the city, Detroiters are proud people, and the DIA is one of the last things they have to hang on to from the glory days of Detroit’s earlier years. On the other hand, obviously every one wants Detroit police officers and firefighters to get the pensions they’ve earned and for some of the other glaring financial problems of Detroit to be addressed.
What nobody knows is whether one will lead to the other. Even if the City is able to sell off some of the collection, will that money go to municipal workers’ pensions? Or will it go straight to the pockets of creditors? My understanding is that bankruptcy judges in similar circumstances do their best to keep assets like this in the charitable/public sector while fulfilling creditors from other assets, but the whole problem here is that Detroit is almost flush out of other assets. In either case, will selling the art provide a long-term solution? Many are concerned that it will provide only a temporary patch and then leave Detroit with nothing to make it a city worth living in. This is only an issue if you’re of the opinion that Detroit is capable of being revived and rebuilt—but certainly every Detroiter I’ve talked to is of that opinion. And with the recent influx of private investment into the City (namely Dan Gilbert buying up a good portion of the City), I have to say I’m hopeful that it’s possible, too.
Dani Johnson is a recent graduate of Indiana University Maurer School of Law. During law school, Dani studied intellectual property law and founded the Society for Law and the Arts, a student organization that raises awareness for art law issues and career paths. Dani served as a Summer Associate at Volunteer Lawyers for the Arts in New York in 2012 and as the Trademark Office Assistant at Indiana University’s Office of Licensing and Trademarks in early 2013. Dani lives in Chicago and will soon be sworn in to the Illinois Bar. Dani may be reached at daniellekjohnson1@gmail.com
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Most pieces I’ve read in the press either adamantly oppose selling any art or strongly advocate for doing whatever is necessary to help the City financially, including selling some of the DIA’s art. After talking with family, friends, and friends of friends who live and/or work in the Detroit area about what they think should happen, the answers I’ve gotten can best be summed up as: it’s complicated.
Obviously no one wants to break up the DIA’s outstanding collection: in addition to the DIA’s importance as a cultural institute in the city, Detroiters are proud people, and the DIA is one of the last things they have to hang on to from the glory days of Detroit’s earlier years. On the other hand, obviously every one wants Detroit police officers and firefighters to get the pensions they’ve earned and for some of the other glaring financial problems of Detroit to be addressed.
What nobody knows is whether one will lead to the other. Even if the City is able to sell off some of the collection, will that money go to municipal workers’ pensions? Or will it go straight to the pockets of creditors? My understanding is that bankruptcy judges in similar circumstances do their best to keep assets like this in the charitable/public sector while fulfilling creditors from other assets, but the whole problem here is that Detroit is almost flush out of other assets. In either case, will selling the art provide a long-term solution? Many are concerned that it will provide only a temporary patch and then leave Detroit with nothing to make it a city worth living in. This is only an issue if you’re of the opinion that Detroit is capable of being revived and rebuilt—but certainly every Detroiter I’ve talked to is of that opinion. And with the recent influx of private investment into the City (namely Dan Gilbert buying up a good portion of the City), I have to say I’m hopeful that it’s possible, too.
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Tuesday, October 8, 2013
What are the nuts and bolts of the Attorney General’s opinion?
Dear Reader: My good friend and soon-to-be art lawyer, Dani Johnson, has generously agreed to share her thoughts and research concerning the city of Detroit, its pending bankruptcy, and the possible deaccessioning of the Detroit Institute of Arts collection. Dani's first blog entry was published yesterday, the second today and last tomorrow, Wednesday, October 9th.
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Bill Schuette’s opinion points out that the museum was originally incorporated as a nonprofit corporation with a specific charitable purpose: the public exhibition of art. So, it was founded as a charitable trust, with the Founders Society serving as its trustees, the public serving as the beneficiaries, and the public exhibition of art being its charitable purpose. When the City accepted the transfer of title of the collection in 1919, the law that allowed this transfer (1919 PA 67) required that the City use the property to maintain a public art institute and continue exhibiting art to the general public. Schuette argues that under charitable trust law, the transfer was “a transfer of the Founders Society’s . . . legal title in its charitable assets to a new charitable trustee—the City.” Basically, Schuette says that in 1919, the City took over as the trustees for the museum, but the collection remains in trust for the public, and all of the City’s expenditures for the museum have been in operating that trust for the public, not on behalf of the City itself. Because of this, the collection is not a financial asset of the City or the Founders Society, and it cannot be sold to pay off any of their debts—rather, it must continue to be used for its original charitable purpose, which is the public exhibition of art.
Schuette’s arguments seem logical and well-founded. A loophole in the argument that comes to mind is the doctrine of cy pres, which allows a judge to modify a charitable purpose when the original charitable purpose is no longer feasible. Proponents of selling the artwork could argue that because of Detroit’s dire financial state, exhibiting the artwork at the DIA is no longer feasible or in the best interests of the public. However, it seems unlikely that a court would pursue that path: doing so would be to quite dramatically redefine the charitable purpose of the DIA in a way that really hasn’t been done before.
Another argument I wondered about was whether part of the collection—namely that part that was purchased with City money, rather than donated or purchased by the Founders Society—might be more vulnerable to being sold. Schuette addresses this in one of his footnotes, and says that such a notion is inconsistent with trust law. He argues that trustees must keep trust property separate from the trustee’s own property and to act otherwise would be a breach of charitable trust—the notion that the City has been in breach since 1919 is “untenable,” which Schuette argues further supports the conclusion that the entire collection exists, and always has existed, for the singular charitable purpose of the exhibition of art.
I’m surprised that this warranted only a footnote, as it seems like a legitimate concern that artwork purchased with City tax dollars would be more susceptible to sale than artwork that was donated. Is it possible that a court could find these assets to be separate, even if it means a finding that the City breached its duties as trustee? I agree that it doesn’t seem likely, but a court could decide this, and it may be a tempting way to go—selling off only artwork that was purchased with City money seems on its face reasonable and would likely garner less heat from the public than selling the entire collection or randomly choosing a few of the most valuable pieces to sell.
Tomorrow, what do Detroiters & Michiganders think should happen?
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Bill Schuette’s opinion points out that the museum was originally incorporated as a nonprofit corporation with a specific charitable purpose: the public exhibition of art. So, it was founded as a charitable trust, with the Founders Society serving as its trustees, the public serving as the beneficiaries, and the public exhibition of art being its charitable purpose. When the City accepted the transfer of title of the collection in 1919, the law that allowed this transfer (1919 PA 67) required that the City use the property to maintain a public art institute and continue exhibiting art to the general public. Schuette argues that under charitable trust law, the transfer was “a transfer of the Founders Society’s . . . legal title in its charitable assets to a new charitable trustee—the City.” Basically, Schuette says that in 1919, the City took over as the trustees for the museum, but the collection remains in trust for the public, and all of the City’s expenditures for the museum have been in operating that trust for the public, not on behalf of the City itself. Because of this, the collection is not a financial asset of the City or the Founders Society, and it cannot be sold to pay off any of their debts—rather, it must continue to be used for its original charitable purpose, which is the public exhibition of art.
Schuette’s arguments seem logical and well-founded. A loophole in the argument that comes to mind is the doctrine of cy pres, which allows a judge to modify a charitable purpose when the original charitable purpose is no longer feasible. Proponents of selling the artwork could argue that because of Detroit’s dire financial state, exhibiting the artwork at the DIA is no longer feasible or in the best interests of the public. However, it seems unlikely that a court would pursue that path: doing so would be to quite dramatically redefine the charitable purpose of the DIA in a way that really hasn’t been done before.
Another argument I wondered about was whether part of the collection—namely that part that was purchased with City money, rather than donated or purchased by the Founders Society—might be more vulnerable to being sold. Schuette addresses this in one of his footnotes, and says that such a notion is inconsistent with trust law. He argues that trustees must keep trust property separate from the trustee’s own property and to act otherwise would be a breach of charitable trust—the notion that the City has been in breach since 1919 is “untenable,” which Schuette argues further supports the conclusion that the entire collection exists, and always has existed, for the singular charitable purpose of the exhibition of art.
I’m surprised that this warranted only a footnote, as it seems like a legitimate concern that artwork purchased with City tax dollars would be more susceptible to sale than artwork that was donated. Is it possible that a court could find these assets to be separate, even if it means a finding that the City breached its duties as trustee? I agree that it doesn’t seem likely, but a court could decide this, and it may be a tempting way to go—selling off only artwork that was purchased with City money seems on its face reasonable and would likely garner less heat from the public than selling the entire collection or randomly choosing a few of the most valuable pieces to sell.
Tomorrow, what do Detroiters & Michiganders think should happen?
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Dani Johnson is a recent graduate of Indiana University Maurer School of Law. During law school, Dani studied intellectual property law and founded the Society for Law and the Arts, a student organization that raises awareness for art law issues and career paths. Dani served as a Summer Associate at Volunteer Lawyers for the Arts in New York in 2012 and as the Trademark Office Assistant at Indiana University’s Office of Licensing and Trademarks in early 2013. Dani lives in Chicago and will soon be sworn in to the Illinois Bar. Dani may be reached at daniellekjohnson1@gmail.com
Monday, October 7, 2013
How and Why Does the City of Detroit Own DIA's Art Collection?
Dear Reader: My good friend and soon-to-be art lawyer, Dani Johnson, has generously agreed to share her thoughts and research concerning the city of Detroit, its pending bankruptcy, and the possible deaccessioning of the Detroit Institute of Arts collection. Dani's blog entries will be published today, tomorrow, and Wednesday, October 9th.
How and Why Does the City of Detroit Own DIA's Art Collection?
The DIA was incorporated in 1885 as a private, nonprofit corporation. Shortly thereafter, the City began appropriating money to support the museum. These appropriations raised concerns, a lawsuit was filed, and ultimately the Michigan Supreme Court decided in 1915 that the appropriations violated the state Constitution’s restrictions on a city’s lending of credit to an entity other than a public or municipal agency. After this, the museum began to struggle, and in response, the Michigan Legislature enacted a law (1919 PA 67) that allowed a corporation situated in a city empowered to maintain an art institute to convey its property to the city, so long as the property was used for the purposes for which the corporation was organized. Pursuant to this, the DIA transferred its collection to the City, while the nonprofit organization (today the Founders Society) continued to support the museum. This unique and problematic structure led the DIA to fluctuate in prosperity as Detroit experienced extreme financial fluxes and political problems over the last century.
In the wake of Governor Engel’s budget cuts to the DIA beginning in 1991, the Founders Society launched a fundraising campaign and raised over $25 million for the DIA, creating some space to formulate a long-term solution for the museum. In 1998, the City and the Founders Society reached an agreement under which the City retained legal title to the collection while the Founders Society had the exclusive right to acquire and dispose of the museum’s works of art.
Because of the convoluted nature of the structure, it’s been difficult to tell what rights the City has in potentially selling off any of the artwork to pay down some of Detroit’s debts. Earlier this summer, Michigan’s Attorney General, Bill Schuette, issued a 22-page nonbinding opinion that it would be illegal for the City to do so.
Tomorrow, What are the nuts and bolts of the Attorney General’s opinion?
How and Why Does the City of Detroit Own DIA's Art Collection?
The DIA was incorporated in 1885 as a private, nonprofit corporation. Shortly thereafter, the City began appropriating money to support the museum. These appropriations raised concerns, a lawsuit was filed, and ultimately the Michigan Supreme Court decided in 1915 that the appropriations violated the state Constitution’s restrictions on a city’s lending of credit to an entity other than a public or municipal agency. After this, the museum began to struggle, and in response, the Michigan Legislature enacted a law (1919 PA 67) that allowed a corporation situated in a city empowered to maintain an art institute to convey its property to the city, so long as the property was used for the purposes for which the corporation was organized. Pursuant to this, the DIA transferred its collection to the City, while the nonprofit organization (today the Founders Society) continued to support the museum. This unique and problematic structure led the DIA to fluctuate in prosperity as Detroit experienced extreme financial fluxes and political problems over the last century.
In the wake of Governor Engel’s budget cuts to the DIA beginning in 1991, the Founders Society launched a fundraising campaign and raised over $25 million for the DIA, creating some space to formulate a long-term solution for the museum. In 1998, the City and the Founders Society reached an agreement under which the City retained legal title to the collection while the Founders Society had the exclusive right to acquire and dispose of the museum’s works of art.
Because of the convoluted nature of the structure, it’s been difficult to tell what rights the City has in potentially selling off any of the artwork to pay down some of Detroit’s debts. Earlier this summer, Michigan’s Attorney General, Bill Schuette, issued a 22-page nonbinding opinion that it would be illegal for the City to do so.
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Dani Johnson is a recent graduate of Indiana University
Maurer School of Law. During law school, Dani studied intellectual property law
and founded the Society for Law and the Arts, a student organization that
raises awareness for art law issues and career paths. Dani served as a Summer
Associate at Volunteer Lawyers for the Arts in New York in 2012 and as the
Trademark Office Assistant at Indiana University’s Office of Licensing and
Trademarks in early 2013. Dani lives in Chicago and will soon be sworn in to
the Illinois Bar. Dani may be reached at daniellekjohnson1@gmail.com
Tuesday, October 1, 2013
Socialists to Protest In Defense of DIA
With sloganeering such as, "Culture is a social right," "The art belongs to the people," "No cuts to workers pensions or city services!" and "No to banrkuptcy", a mass protest has been scheduled in front of the DIA this Friday, Oct. 4th.
If they can tell me how Detroit can keep the DIA collection intact, repair the potholes and broken streetlights, keep pensions at their original numbers, and NOT file for bankruptcy, I'd love to know so I can package that idea and sell it to our federal government. Talk about a money-maker! Thanks to my good friend, Dani Johnson, for the heads up on this one.
From the socialist's website,
If they can tell me how Detroit can keep the DIA collection intact, repair the potholes and broken streetlights, keep pensions at their original numbers, and NOT file for bankruptcy, I'd love to know so I can package that idea and sell it to our federal government. Talk about a money-maker! Thanks to my good friend, Dani Johnson, for the heads up on this one.
From the socialist's website,
No one should believe the claims that sale of the art will help save workers’ pensions. After they take the art, the banks will be even more eager to steal municipal workers’ pensions and to slash city services! The right to culture must be defended along with all the rights of the working class.
The Socialist Equality Party and International Youth and Students for Social Equality are calling for a mass demonstration at the DIA to defend the DIA. We aim not to pressure the Democrats and Republicans, the bought-and-paid-for politicians of the banks, but to organize an independent movement of working people.
To organize this struggle the SEP is calling for the formation of a Committee to Defend the DIA!
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