WHO OWNS WPA PRINTS?
TRANSCRIPT OF PANEL DISCUSSION HELD AT THE PRINT FAIR
NOVEMBER 4, 2000 -- page 5
And in fact what has happened, what I'd rather do, rather than talk about what collections of the Block are, and for those of you who would like to see those collections, most of them are up on line on the museum's website, I would like to raise several questions pertaining to the ramifications of what the government has done.
The first is that whereas it's very nice that the government is asking for all of these prints to go into public collections, what the government is doing is making the collecting of this work in museums a little dangerous and a little problematic. How are the museums supposed to de-accession works? We are museums, we don't collect blindly, we don't collect everything. In fact, it is fair to say that not everything deserves to be collected. Institutions, museums, have purposes behind their collections. Not every work of the WPA fits into the purposes of those collections. Whereas we acquire works with the idea of collecting in perpetuity, we also know that we would like to upgrade the quality of the collections. We have to trade those collections in order to get other works. How are we supposed to do that if there is no viable market in WPA prints?
Second question. The tax reform act in '86 showed us what happens when there is no deductibility based upon the appraised value of a work of art. If you don't own a work of art, you can't have a tax deduction on it, because you don't have a clear title to it, which means that there is no incentive to giving works of art to public institutions. So how are museums supposed to collect works of art, how are people supposed to donate, if there is no incentive to donate?
Three, what happens to those people who are still within the window in which the government can question tax deductibility. What happens to the tax deduction of the work if the government is claiming they didn't own it? What happens to Louise Dunn Yochim, who got approximately $100,000 donation, just of the top of my head, for her works if the government declares that she really didn't own those works?
Fourth question, if one of the purposes of a museum is to show what happens in a broad spectrum of American art, and if there is no incentive to donate, how is a museum in Illinois, or in Kankeekee, or in San Diego, supposed to develop a broad based collection on the history of the 1920's and '30's if there is no market for those works, meaning that one of the primary ways that museums such as the Block, and notice, most museums, have of knowing what was going on in California during the WPA is not only to speak to the people and to scholars who are working in the field, not only to work with Liz Seaton in the scholarly community, but to talk to those dealers who have for years specialized in those areas and will work in terms of making those works available. If they do not have those collections, there is virtually no way for smaller institutions, and indeed larger institutions, to gain access to a broader spectrum of works. And, in fact, what you will find is that a majority of what happens in California will, if they're going to be donated at all, go into California collections and not be able to be looked at in a broad spectrum of the history of the period.
If the government is asking, a fifth area, if the government, and this we probably already know the answer to, if the government is asking that all works be donated to public institutions and places in the public realm, is the government also making a concomitant commitment, really, to the preservation, care and upkeep of those collections, or are they passing that along to museums? That's something that especially museums in regional settings don't have the availability to do.
So, one way of looking at what is happening in this discussion is the government's attempt to deny private ownership of WPA prints and to insure that there is no commodity value to those works, which goes against their basic premise that those works should come into a public setting. Hence you have, and I think what others here have been saying, a rather surrealistic enterprise.
Franklin Feldman: For better or worse, in the United States', most important questions and indeed, many unimportant questions, finally wind up as a legal proposition. The United States government through the GSA, has claimed that it owns all of the WPA prints (and we're only dealing at the moment with prints, graphic art). The question is, what do they base that on? They have written a detailed, legal memorandum in which they relied on three provisions. One provision, the United States Constitution, which sounds very impressive. Article Three, Section Four, Clause Two. I was not acquainted with Article Three, Section Four, Clause Two, and all [it] says is that Congress shall have all the power to provide rules and regulations respecting government property, and nothing in the Constitution shall impair the rights thereof.
Then they rely on two cases. The first case is the so-called Allegheney Case. The Allegheney Case basically dealt with the ability of a local municipality to tax federal property. It had nothing to do with the issue before us. And there, the court decided that the States did not have the right to tax federal property.
The second case, is called the Steinmetz Case. The Steinmetz Case basically dealt with the right to recover a sunken vessel in the waters. I don't think that had a great deal to do with the GSA issue. And they have cited nothing else. They've also stated that the government cannot abandon property and there's no statute of limitations applicable. Well, let me put this in perspective. This is not a question of stolen art. All of this property is legally out there.
The statute of limitations would normally be applicable to stolen art. In New York, the rule is called the "demand and refusal" rule, which basically means the statute doesn't run until the victim demands the return once he learns where the art is, and has been refused. The New York statute of limitations, which is three years, then starts to run. But this is not stolen art. This is a question of property that is out there lawfully. Now with respect to statute of limitations unrelated to stolen art, there are cases which state that the government is subject to the statute of limitations if the matter deals with private property, or the government is in competition with someone. Now, arguments could be made either way: is this private property that we're dealing with, or are the dealers and artists who may be in possession of this work, in competition with the United States? The government also claims that the work was "allocated." They have used that term because that's in the regulations but they subsequently define "allocation" to mean transfer of title.
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