August 31, 2023
By Melina Sakellaris
Historically, museums have enjoyed a privileged position in the eyes of the American public as impartial institutions committed to the education of the public. However, in recent years, scandals surrounding issues of provenance, looted artworks, and unethical possession of human remains have jeopardized their reputation. As such stories continue to make news headlines, the very institutions that are dedicated to disseminating knowledge find their commitment compromised by administrative approaches that veer towards opacity and secrecy. Amidst these ongoing controversies, it becomes crucial to review the legal responsibilities of museums and the limits of the legislative framework regarding repatriation. By addressing these sensitive topics, we can pave the way for a more transparent and accountable future for museums, ensuring their continued role as valuable assets for the public.
A museum falls under three categories in terms of financial and legal status: it can be a public, for-profit, or private nonprofit organization. The vast majority of museums qualify as private nonprofit organizations, which will be the focus of this article. As an organization committed to public education, museums hold a 501(c)(3) status that grants them extensive tax benefits. Indeed, despite their private nature, the core of their mission is public service. Moreover, museums themselves have taken care to highlight the centrality of public good in their mission statements. The American Alliance of Museums (AAM), the largest service and advocacy association for museums, is in charge of the most important museum accreditation program in the United States with over 1,100 participants. In their code of ethics, which all museums seeking accreditation from them must subscribe to, they proudly proclaim that they are “organized as public trusts, holding their collections and information as a benefit for those they were established to serve.” Similarly, museums’ self-identification as institutions for public service is widely accepted amongst Americans. A 2021 AAM survey highlighted that the American public regards museums as “highly trustworthy,” a statistic only surpassed by “friends and family.” In fact, museums are considered more reliable than teachers or books as a source of historical information.
As hybrid institutions straddling the public and private sectors, museums enjoy the benefits of public institutions with a special tax status and government funding. However, they are not subjected to the same level of scrutiny as public agencies in regard to their fiduciary duties. In an age where the public reexamines the colonial legacy of their institutions and seeks restorative justice, transparency has become a central issue in the public accountability of museums. Access to collection records of public bodies and institutions is governed by the Federal Freedom of Information Act (FOIA). Signed in 1966, the FOIA provides a legal procedure for any civilian to request access to certain information with a strict time limit imposed on the agency to respond. This is an extremely important tool for civilians to ensure that public agencies remain accountable and transparent. However, private nonprofits like museums are not governed by this act, and there is no equivalent piece of legislation for private nonprofits in American law.
The discussion surrounding the transparency requirements of museums usually invokes these institutions’ own self-imposed or peer-imposed regulations, which can be useful. However, self-imposed museum policies and procedures in this matter usually remain limited in terms of the grievance procedure for an external party. Peer-imposed regulations usually take two forms: codes of professional ethics and institutional accreditation. They provide a broad framework for the museum to develop its own code of conduct. Institutional accreditation ensures some public protection against a museum’s misconduct by standardizing museums’ institutional quality. For example, the AAM’s proposed code of ethics has shaped the mission of many museums. However, ethics statements can be quite vague. The AAM Ethics Code adopted in 1993 and amended in 2000 is brief in regards to the access and disclosure of collection records, simply stating “access to the collections and related information is permitted and regulated.” Similarly, critics highlight gaps in the revised 2008 guidelines of the Association of Art Museum Directors regarding the acquisition of archeological material and ancient art, describing their standards as “very, very loose.” The association advises against acquiring objects without a documented provenance prior to 1970 unless an official export permit exists. However, museums can still accept such artifacts by listing them on an online registry, providing available provenance information, and justifying their decision. Currently, museums have registered 1,754 objects under these exceptions. The vagueness of these statements leads to self-regulated compliance that does not truly push the museums’ administration to make uncomfortable decisions to ensure public accountability.
In 1981, Thomas Hoving, then president of the Metropolitan Museum of Art (MET) from 1967 to 1977 published “King of the Confessors.” In this memoir, he detailed his adventures smuggling artworks from Italy and breaking into another museum. He boasted, “My collecting style was pure piracy, and I got a reputation as a shark.” The era of “pure piracy” was seemingly already a relic of the past at the time of its publication. Hoving stated, “Those were the great days of piracy in the museum business. They no longer exist, but they did exist. They stopped in the early 1970s, with the UNESCO draft treaty.” The UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property that Hoving mentions helped establish international norms regarding the illicit traffic of antiquities and criminalized all thefts of cultural property. However, given the non-retroactive nature of the legislation, antiquities looted prior to 1970 were not protected. Additionally, the introduction of new international legal norms initially did little to impact museums’ practices on the acquisition of looted antiquities.
After all, while Hoving’s book endured some controversy, he was never pursued for his actions. One scholar stated that America’s “ most prominent museums acted more like treasure hunters than professionals” in their pursuit of antiquities. A policy of “Don’t ask, don’t tell” prevailed, which empowered the museums to make questionable purchases. Reflecting on this policy, in 1983, Arthur Houghton III, the curator of antiquities of the Getty Museum, wrote in confidential memos directed to the museum’s director, John Walsh, that “the reality is that 95% of the antiquities on the market have been found in the last three years. The only way one obtains them is if you do not ask the specific question that would elicit the specific answer about provenance that would make the material unbuyable.” Similarly, a legal strategy was specifically adopted to circumvent any potential legal challenges posed by the 1970 UNESCO Convention which Houghton coins as “optical due diligence,” where museums performed a procedure of due diligence but information that could incriminate the seller was conveniently ignored. Notably, museums were very lax in tracing the provenance. For example, the exhibition catalog of “A Passion for Antiquities,” organized by the Getty and Cleveland Museum of Art in 1994, indicated that 92% of the objects had unknown provenance.
Nowadays, museums are grappling with their history and have been eager to demonstrate their distance from their past practices. This has resulted in several initiatives kickstarted by museums themselves. In 2022, the Smithsonian Institution, which includes 21 museums, adopted a new ethics policy authorizing the deaccession of objects that have been confirmed to be illicitly acquired. As a demonstration of their commitment, the Smithsonian National Museum of African Art returned 29 Benin bronzes to the National Commission for Museums and Monuments in Nigeria. The famous heritage works, which were stolen during the 1897 British raid on Benin City and are now scattered among several museums in Europe and America, have been a celebrity case in the discourse surrounding restitution and repatriation. Most recently, the MET has been facing scrutiny for having looted artifacts in its collection, as well. In response, the museum plans to hire an in-house provenance team to investigate these claims. Max Hollein, the museum’s director, stated in a letter to the museum staff the need to examine the collection’s history and policies. The provenance researchers will focus on the period from 1970 to 1990 when the collection grew rapidly.
However, cases where access to knowledge is barred still persist. Recently, the Whitney Museum of American Art came under scrutiny for the disputed provenance of over 300 Edward Hopper artworks. This issue is complimented by the lack of scholarly access to the Sanborn Hopper Archive, which contains critical Hopper material and highlights ongoing issues of access that could help prevent or manage these issues.
Optimists might notice the pendulum swing towards higher standards in terms of provenance research. No matter their motive, museums in the U.S. are paying more attention to the provenance of their works and choosing to make more information public. In addition, they are making a greater effort to return objects to the rightful or original owners. While such initiatives are an exciting development, the issue of secrecy still persists with no access to any meaningful path of recourse. Cases like the Whitney Museum’s Sanborn Hopper Archive’s lack of scholarly access as well as general clarity of provenance demonstrate that, too often, the public is still dependent on museums’ decisions to allow access to vital knowledge. Museums’ decisions can be influenced by public opinion, peer-imposed regulations, and self-imposed regulations, but ultimately, the final arbiter remains the museum itself. Recent developments from museums showcase a slow change in ethical and social norms surrounding museum transparency and public accountability. One can hope that new legal norms will follow in response to social transformations and concretize such developments in federal law.
Boyd, Willard. “Museum Accountability: Laws, Rules, Ethics, and Accreditation ”, California Academy of Sciences, 2010
Colwell, Chip. “Curating Secrets.” Current Anthropology, vol. 56, no. S12, Dec. 2015, pp. S263–S275, https://doi.org/10.1086/683429.
Felch, Jason, and Ralph Frammolino. Chasing Aphrodite: The Hunt for Looted Antiquities At the World’s Richest Museum, 61 Boston: Houghton Mifflin Harcourt, 2011.
La Follette, Laetitia. In Negotiating Culture: Heritage, Ownership, and Intellectual Property, University of Massachusetts Press, 2013.
Melina Sakellaris is currently completing her B.A. at Columbia with a major in Human Rights and a concentration in Art History, after having received a B.A. in Politics and Government from Sciences Po. During her studies, Melina developed a profound interest in art law as the nexus of her passion for politics, law, culture, and art. She wishes to continue exploring the art world through a legal lens, empowering artists and art professionals in a flourishing and dynamic art world.