Diego Velázquez, "Portrait of Juan de Pareja" (c. 1650); this was the painting that perhaps precipitated deaccessioning becoming a disliked term. The Metropolitan Museum of Art in the early 1970s surreptitiously sold art from the Adelaide Milton de Groot bequest, in order to purchase Diego Velázquez’s portrait of Juan de Pareja. (image courtesy and via Wikimedia Commons)

The best way to diversify a museum’s collection is by any means necessary. But an easy way is to sell overvalued art and buy undervalued art. Or at least it would be easy, if the art world establishment permitted it.

The art world euphemism for museums selling art is “deaccessioning.” According to the Association of Art Museum Directors (AAMD), a professional organization that claims to regulate ethical standards for institutions that fall within their purview, art museums can only deaccession works in order to buy different works, and can’t sell works in order to raise money. The deaccessioning police insist that museums can’t just sell art willy-nilly, because they hold it in the “public trust.” They are wrong, and their argument is incoherent.

The public trust doctrine holds that the government can’t sell public assets like public waterways and parks, because it holds them in trust for the people. But museums aren’t the government, and art isn’t a public asset. People buy and sell art all the time. We call it the “art market” for a reason.

Moreover, if the public trust doctrine applied to art, then museums couldn’t sell it at all. But the AAMD rules explicitly provide that museums can sell art to buy different art. So, which is it? Apparently, museums hold art in the public trust, unless they don’t like it anymore and want to buy something else.

In any case, the AAMD rule has created many problems, especially when struggling museums tried to sell art in order to stave off bankruptcy, or universities tried to sell art and use the proceeds for educational purposes. Every time, the deaccessioning police went bananas, and the AAMD sanctioned any museum that followed through on the sale (such as the case in 2018 when they sanctioned the Berkshire Museum).

When the pandemic hit and museums had to close indefinitely, the AAMD realized its rule was untenable, and temporarily allowed museums to use deaccessioning proceeds for certain operating expenses. But the deaccessioning police weren’t having it.

Last month, the Baltimore Museum of Art (BMA) announced its decision to deaccession three paintings by Brice Marden, Clyfford Still, and Andy Warhol. The museum would sell the works at Sotheby’s, and expected the sale to generate about $65 million. It planned to use the proceeds to diversify the BMA collection, among other things.

Andy Warhol, “The Last Supper” (1986) the Baltimore Museum of Art: purchase with exchange funds from Harry A. Bernstein Memorial Collection, 1989.62 (© The Andy Warhol Foundation for the Visual Arts, Inc. / Artists Rights Society (ARS), New York)

The reaction to the BMA’s plan was swift and furious. The AAMD itself couldn’t credibly object. After all, its rules explicitly permitted the sale. But its proxies howled. Several BMA trustees resigned, a bunch of arts professionals wrote angry letters, and art critics fulminated against the supposed failings of the BMA board. How dare the museum sell important works of art?! Apparently, “There is simply no defensible curatorial rationale” for wanting to cash in on blue-chip art, in order to pursue a different curatorial vision.

Give me a break. The BMA followed the AAMD rules, which aren’t even legally binding. The BMA’s board is legally obligated to make decisions that are good for the BMA. If the board thinks increasing the diversity of the museum’s collection is an important goal, and deaccessioning is an appropriate tool, end of story.

And yet, the BMA has understandably backed down, at least for the time being. It probably wasn’t expecting to be the target of so much vitriol, especially when its motives were so obviously good. You can’t win for trying.

Let’s be honest. The primary reason the AAMD rules exist are to preserve an accounting fiction and ensure that only private collectors can realize capital gains in the art market. When collectors complain about museums selling art and keeping the profits, it’s just because they want to collect the money themselves. It’s a shame the art critics who run interference for them are such toadies.

When the BMA tried to diversify its collection, it learned just how shallow the art world’s commitment to social justice can be. According to its critics, if the BMA wants to diversify its collection, it should raise money from donors to buy more art, rather than trading some art for other art, as the AAMD deaccessioning rules permit and even encourage. In other words, art museums should diversify their collections with all deliberate speed. I think they can and should move a little faster.

Brian L. Frye is Spears-Gilbert Professor of Law at the University of Kentucky College of Law, where he teaches intellectual property and copyright, among other things. His scholarship focuses on intellectual...