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The Guggenheim Museum refused Hyperallergic’s request to reproduce the deaccessioned image of Donald Judd’s (which can be seen in the second of the seven slides here on this page on museum’s website), as they told us, “We would prefer to have someone from the Guggenheim included in a conversation that references the attached image in the context of the complex Panza Collection Initiative, so it would be best if you cite another image for the piece.”

The Guggenheim recently introduced an unlikely new term, “decommissioning,” into its collections management lexicon. In its conventional meaning the word suggests the retirement of old warships or power plants. But the museum has repurposed it to designate works in its permanent collection that it has “deemed to be non-viable.” It is a designation for museum holdings no longer recognized as art. In this regard, the meaning and nuance of decommissioning is much closer to its controversial cousin “deaccessioning,” that is, the sale or removal of works from a museum’s permanent collection.

The museum created the category within the last few years in response to a specific set of problems associated with its Panza Collection, a vast assortment of conceptual, minimalist, and post-minimalist art that it acquired from the collector Count Giuseppe Panza di Biumo in the early ‘90s. The acquisition made waves at the time in part because the influential artists whose work it included (Donald Judd, in particular) had publicly repudiated Panza and his collecting practices.

Judd’s grievances were many, but he was angered primarily by Panza’s decision to fabricate his artworks, without Judd’s supervision. Panza, trained as a lawyer, justified this practice in reliance on his ownership of certificates and plans that he had purchased in unrealized, paper form from Judd years earlier.

Panza was something of a trailblazer among post-war collectors in focusing on purchasing rights to have art made (that is, legal permissions in the form of contracts, certificates, and licenses) rather than art in object form. In Panza’s mind, he was purchasing the right to have the work made later. When it came time to realizing the art from its plans, however, Panza often did not bother to involve the artists in their construction or have works created to their standards or expectations.

For example, in the mid-‘70s Panza acquired from Judd a paper “certificate” for an unconstructed work known as “Untitled [Seven plywood boxes: open back]” (1972–73). That document contained a rough sketch and dimensions for instantiating the work — a series of large, open, plywood cubes. When Panza later had the work made in Milan in 1976, based on the certificate and other more detailed instructional papers, Judd raised concerns over the improper prominence of screws and edges that he saw from photos of the fabrication.

Judd was particularly incensed, more generally, by the notion that Panza might purport to make Judds without bothering over the actual Judd’s approval, and then do so incorrectly.

More controversial even than Judd’s disavowal at the time of the reportedly $30 million-plus Panza acquisition was the fact that the Guggenheim funded it by selling off (that is, deaccessioning) works from its permanent collection by Kandinsky, Chagall, and Modigliani.

Ironically, given this history, the Guggenheim’s decommissioning policy (unveiled last April at the event Object Lessons: The Panza Collection Initiative Symposium) closely resembles a form of uncompensated deaccessioning. Decommissioned works are to be held and considered apart from the permanent collection, never to be exhibited. Physical manifestations are to be boxed up and, in some cases, “disposal” will be recommended. Work that exists only in the form of unmade plans “shall remain unrealized.” In short, decommissioned holdings will be stripped of the status of art, removed from the permanent collection, never made, and kept indefinitely from public view.

If anything, decommissioning is a more impactful decision than deaccessioning. Deaccessioned works regularly reappear on the walls of new institutions following the deaccessioning process. Norman Rockwell’s “Shuffleton’s Barbershop” (1950), for instance, was sold by the Berkshire Museum two years ago to the Lucas Museum of Narrative Art, despite a major outcry over the sale of the beloved painting. The only real change for those wishing to view “Shuffleton’s Barbershop” once the Lucas Museum opens to the public, however, is that they will need to travel to Los Angeles instead of the painting’s former home of Western Massachusetts. While the sale may have contravened Rockwell’s original intent in donating his paintings to the Berkshire Museum, and certainly has legal and ethical implications for collection development and stewardship, relocation to LA does not comprise a loss to the public as such.

Decommissioned works, by contrast, are being designated for complete removal from the public. Despite this, the Guggenheim’s decommissioning decision has seen nothing like the chorus of censure and hand-wringing that invariably follows major deaccessioning announcements. To the contrary, articles covering the decision have chosen to focus on the aesthetic and market challenges posed by the underlying art forms, or the lengthy process by which the Guggenheim reached its conclusions, rather than the ethical implications of decommissioning itself.

Panza’s Fabrications

The Guggenheim did not, of course, arrive at this decision suddenly or without good reason. Its Panza Collection Initiative or PCI (a multi-million-dollar, grant-funded, nine-year dive into its Panza holdings) revealed just how poor a job Panza did of realizing the certificate-based work that he acquired primarily between 1966 and 1976.

Panza’s iterations of Judd works, for instance, regularly used lower grade plywood, and contained incorrectly applied veneers and clunky exposed hardware. Often Panza had the works scaled to fit new spaces. Archived documents and Judd’s own writings show that such choices were demonstrably contrary to Judd’s intent. These and similar choices by Panza directly led Judd to disavow such works.

These aesthetic differences are hardly minor, and immediately apparent even to a lay observer upon a side-by-side viewing. This was made clear from the elucidating temporary installation that the Guggenheim created for the Object Lessons symposium. The museum juxtaposed two versions of an “Untitled” Judd plywood work known commonly as “Lisson” after the Lisson Gallery where it was first exhibited in 1974. According to Guggenheim summaries of its archival documents, the original Lisson fabrication was dismantled and its constituent pieces discarded, shortly after that ’74 show. Thereafter, Panza agreed to purchase the work in the form of a dematerialized paper certificate that delegated to Panza a “reproduction right” (to use Panza’s term) to realize the work anew at some undetermined time in the future.

Image of the signed certificate by which Giuseppe Panza claimed ownership of the work of Donald Judd as shown at the “Object Lessons: The Panza Collection Initiative” symposium at the Guggenheim Museum (photo by the author)

By virtue of his ownership of the certificate, Panza then “loaned” the work to the Los Angeles MOCA in 1983 where it was refabricated by Peter Ballantine, Judd’s trusted primary craftsman for plywood works. It was originally thought that the parts were lost when the piece was dismantled after the show.

Panza then created a third version of the work in 1988, this time in Europe and without Judd’s or Ballantine’s involvement. It was this last, third iteration of the Lisson work that the Guggenheim acquired from Panza along with the original certificates and related documentation.

The 1988 object, reconstructed for Object Lessons, was wanting in many ways. It was rescaled by Panza for a different space far longer than the one for which it was originally produced, fitted improperly in the space in that it was not flush to the wall, and used a different grade of plywood. It was also the version of the work that caused the museum to decommission the piece in its entirety in 2016 due to its facial deficiencies and evident divergence from Judd’s intent.

By a stroke of luck, the same year that the Guggenheim internally “decommissioned” the Lisson “Untitled” work, LA’s Museum of Contemporary Art rediscovered its stored materials from the 1983, Judd-sanctioned, iteration. Upon taking possession of those materials, the Guggenheim worked with Ballantine to rebuild the structure and ultimately decided to de-decommission (or is it recommission?) the piece, bringing it back into the permanent collection once again as an artwork. A large segment of it was reassembled and exhibited for the symposium in April 2019 alongside the substandard Panza version.

Deaccessioning Guidelines

The Guggenheim’s decommissioning approach can, then, be justified as a perfectly reasonable decision to no longer exhibit Panza’s low-quality iterations of Judd works that the artist renounced in his lifetime. As such, the choice tracks the leading guidelines on the analogous ethics of deaccessioning promulgated by the Association of Art Museum Directors (AAMD). Although these guidelines are not legally binding on a museum in the strict sense, they do bear on a museum’s accreditation status and comprise a powerful and influential statement on the mores of museum collecting practices.

AAMD guidelines allow a museum to deaccession a work from its collection where, among other things: “the work is of poor quality;” “the authenticity or attribution of the work is determined to be false or fraudulent and the object lacks sufficient aesthetic merit or art historical importance to warrant retention;” or “the physical condition of the work is so poor that restoration … would compromise … the artist’s intent.”

Some of Panza’s instantiations of Judd’s works, including the Lisson piece, likely meet each of these three independent deaccessioning standards. The Panza fabrications are of demonstrably “poor quality;” Judd renounced artistic attribution of them; and restoration might compromise Judd’s intent.

The Problem with Decommissioning

Critically, however, while the Guggenheim would certainly be entitled to deaccession (or by this analogy, decommission) the Panza fabrications, that logic only reaches as far as the problematic fabrications created by Panza. But the museum intentionally chose not to limit its decommissioning decision to any given fabrication. It applies with full force to the underlying works themselves that the artists created first in the form of paper plans.

While Judd was clear that the certificates are not themselves the artwork, neither are the particular Panza objects. As MoMA curator Ann Temkin emphasized at the symposium, Judd was generally not precious about original fabrications — it was not uncommon for him to remake work for later exhibitions with no one iteration being more authentic than another.

The problem boils down to the recurrent and insoluble question posed some years ago by Martha Buskirk (art historian and member of the PCI advisory committee) with respect to dematerialized art: “What is the work? Where is the work? When is the work?” If the “artworks” were only Panza’s attempted fabrications, then decommissioning might be justified. But for much of the Panza Collection the art must be more than any one embodiment.

Decommissioning, viewed in this way, is an attack on the aesthetic meaning of the certificates as such and on their power to still actuate a Judd (or other) work in the future.

This problematic is if anything underscored by the Lisson saga itself. But for the fortuitous rediscovery of a box of old materials a Judd masterwork from 1974 would have been reclassified out of existence. Lisson is the fine art equivalent of the surprisingly common case of people declared legally dead who reappear years later (in this case, having been alive the entire time in a basement in Southern California).

The Impermanence Fallacy

This leads to an error underlying the Guggenheim’s thinking. Based on public comments made at Object Lessons, the museum intentionally left open the possibility of reversing a decommissioning decision (though it made the standard for doing so hard to meet).

But any reversal is likely to come too late for many certificate-based artworks. That is because the artists who created these works regularly relied on the technical expertise and working knowledge of human fabricators to have them realized. Human knowledge and experience is, by definition, subject to permanent loss over time. In such a case, a decommissioning decision could prove fatal in the long run.

Judd’s certificates, for instance, repeatedly incorporate Peter Ballantine into the essence of the artwork. Handwritten into the executed certificate for “Untitled [seven plywood boxes]” (the now-decommissioned Panza work discussed at the outset) is the language: “Peter Ballantine has the construction information.”   It is clear from the context that Judd meant to refer not just to physical plans in Ballantine’s possession but also his expert knowhow based on years of creating plywood works at Judd’s behest. On more than one occasion Judd emphasized Ballantine’s indispensability to creating plywood works: “Peter Ballantine alone can make plywood pieces.”

Peter Ballantine is, thankfully, alive and working, and attended the symposium. But time is of the essence to recreate Judd plywood works memorialized in paper certificates using Ballantine’s expertise. Much the same can be said for other artists of the time in the Panza Collection (Dan Flavin, for instance) who worked very closely with particular, trusted studio assistants and fabricators.

Decommissioning to Preserve Artistic Intent

A variant argument often raised in favor of decommissioning — suggested at the conference — is to protect the “moral rights” of artists. Such rights are a collection of non-economic, legal rights preventing misattribution, modification, destruction, and divulgation of art against an artist’s wishes.

Donald Judd, for instance, unequivocally renounced his authorship in Panza’s “Judd” works (both those fabricated by Panza and existing only in plan form) and specifically asked that no more works by him should be realized after his death. As such, it would arguably be inconsistent with his moral rights to fabricate them anew posthumously.

There are at least three problems with this moral-rights argument. First, to start narrowly, there is no legal basis for that position in the US. Judd, for instance, possessed few if any legally enforceable moral rights in the US in these pieces during his life, and even fewer after his death, due to the relative weakness and novelty of US moral rights laws.

Second, the historical record is always a murky, contested space whereas decommissioning decisions are oversimplified binaries. Reasonable minds might disagree as to whether Judd’s voluntary creation and sale of certificate-based artworks acted as a form of aesthetic permission to outsource part of his art-making process. There is at least an argument (certainly Panza took this position) that Judd’s direct authorization was no longer needed to realize the works after they had been duly sold as certificates. For his part, Judd strongly disagreed with that notion on grounds of integrity, quality, and fairness.

The entire purpose of the nearly decades-long Panza Collection Initiative was to convene experts (art historians, curators, conservators, and lawyers) to wrestle with such questions. I don’t dispute the knowledge, dedication, and good faith of the PCI advisory committee members. But those present at the symposium hardly spoke with one voice — it is not like the experts themselves reached a definite conclusion here. Nor was the advisory committee directly involved in any actual decommissioning decision. Those were proposed by museum representatives and voted on by museum trustees.

The point is that there was no need to ever come to such a conclusion. Why not simply let this certificate-based art exist as it exists — compromised, labeled, but something so unique that its existence and history is itself something of aesthetic value? Why should a collecting institution take an official stance as to the ontological status of an artwork if there is nothing compelling it to do so?

Museum representatives suggested in passing that they were forced to come to some decision because the works needed, after all, to have some label in the museum’s collections management system. But is the Guggenheim’s collection really at the mercy of an empty field in a piece of database software?

Third, decommissioning decisions based on later-expressed artist intent privileges the present over the past. A recurring theme of Object Lessons was that conceptual and minimalist artists of the 1960s and ‘70s were essentially making up an entirely new form of artistic practice as they went along.  There were no set rules for how to author and sell a finished work of art that was meant to be realized later. To now assign the tag of “not-art” to these works, even based on later statements of the artists who created them, is to inject a sort of hindsight-bias into the aesthetic.

In the end, decommissioning is not merely a philosophic or linguistic exercise. Its impact is tangible. The Panza Collection includes extraordinary, historically important artworks memorialized in certificate form that (the museum itself acknowledges) the Guggenheim has every legal right to realize and exhibit. It is the only entity on earth possessing this right and power for this collection.

As a non-profit institution, the Guggenheim holds them — legally and ethically — in trust for the benefit of the public. But it has affirmatively and unilaterally decided (under no compulsion to do so) that these works are not art. By virtue of this decision, the works will be neither made nor shown. And once those few individuals with the knowledge and experience to fabricate them properly can longer do so, those self-inflicted losses effectively become permanent.

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Peter Karol

Peter J. Karol is a professor of law at New England Law | Boston, where he is also director of the school’s Intellectual Property Law Certificate Program. His scholarship focuses on the interrelationship...

3 replies on “Why Did the Guggenheim Decommission a Donald Judd?”

  1. As an Artist, I can unequivocally say that the role decommissioning plays in the construction, distribution & exhibition of a work of Art is solely up to the Artist’s intent. Institutions should take this intent into consideration.

    The commercial Art world these days is so infatuated with the work of Art as product that the roles conception, intent & execution-of said works of Art-become completely lost. This is why we can visit any number of Art fairs where you can’t really tell where the Artwork begins & where the Artist ends. Anyone could have made the works on display. At the cost of easy recognizability & reproducibility, the Artist’s hand is simply & completely lost.

    If Judd had any animosity towards Panza’s intents & practices-as the article you have linked clearly suggests-works executed by Panza & his cohorts are simply not Judd’s. Plain & simple.

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