IBA Annual Conference 2016 Art, cultural institutions and ...
Transcript of IBA Annual Conference 2016 Art, cultural institutions and ...
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IBA Annual Conference 2016
Washington DC
Art, cultural institutions and heritage session
Art is not enough: what else do donors want from
museums?
The Panel
David Sleeman, Winston Art Group
John Cahill, Cahill Partners LLP
Daniel Simon, Collyer Bristow LLP
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Today’s topics
1. Gifting Basics and Donor Concerns
• Tax Deductibility
• Exhibition Obligations
• Recognition (Naming Rights)
• Donor-Friendly Risk Allocation in Worst-Case Scenarios
− Claims against the Artwork
− Bankruptcy of Donor or Museum
2. Loan Basics and Donor Concerns
• Key Terms Donors Want
• Insurance
• Import/Export; Seizures
• Sale restrictions
• Tax basics
3. Private Operating Foundations
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Gifting Basics
Make sure the recipient will afford donor a deduction
− Not every "foundation" is 501(c)(3)
Make sure the gift will be a "related use"
Make sure that the gift will be accessioned
Make sure that the recipient will keep for at least three years
Get a qualified appraisal timed accurately
Get Form 8283 from Museum
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Gifts: plan ahead
Based on donor’s individual tax and personal issues/desires
Options include
− Lifetime direct gift
− Trust or other vehicle
− Gift on death
Avoid surprises: do pre-gift diligence and get advice
− Is it the right place for the gift?
− Check if Museum has accessioning policy
− Title
− Authenticity
− Other risks that most donors cannot even imagine
− Expert advice from experienced professionals is key
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Tax bonuses: sales tax break
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Francis Bacon, Three Studies of Lucian Freud
Purchased for $142 million
15 weeks at The Portland Art Museum vs. Private Residence in
Nevada $11 million saving in Nevada use taxes
Enhancing value and provenance
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SOLOMON R. GUGGENHEIM MUSEUM
OCTOBER 25, 2013–JANUARY 22, 2014
Christopher Wool
CHRISTOPHER WOOL
Christie's New York, Sold $14,165,000
M. Thomas, 'Christopher Wool', Pittsburgh Post
Gazette, 28 November 1998
Christopher Wool, exh. cat., Institut Valencià d'Art
Modern, 2006, p. 11
Christopher Wool, exh. cat., New York, Solomon R.
Guggenheim Museum, 2013, pp. 9293
Gift Risks
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• Canyon, by Robert Rauschenberg
• Liens (e.g., De Young)
• Title disputes
• Authenticity disputes
• Seizure
• Import/Export (gift to Getty)
• Can the donor get an indemnity
– Or insurance?
Naming rights
• Builds relationships with donors.
– Henry Luce Foundation and visible storage of American Art
• Museum Naming Policies
• "For museum executives, the dirty secret of expansions has been
that they are often motivated by the need to have some exciting
new thing to rally board members and interest potential patrons.
These institutions depend heavily on rich people to fund them.
Those rich people like to pay for flashy new buildings; no one wants
to donate to boring old museum upkeep."
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To Name or Not to Name?
• The Isabella Stewart Gardner
Museum
• The Broad
• The Whitney
• The Frick
• The Morgan Library & Museum
• Rubell Family Collection
• Etc.
• National Gallery of Art (Paul
Mellon)
• Metropolitan Museum (4,504
collection records for “Gift of J.
Pierpont Morgan,1917”)
• The Met Cloisters (John D.
Rockefeller)
• Neue Galerie (Ronald S.
Lauder and Serg Sabarsky)
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Bankruptcy?
(Donor and Museum Risk)
• DIA and Corcoran
• UCC?
• Rescission Right?
• Friede Collection at M.H. de
Young Museum• “. . . A Florida judge ruled that Mr. Friede’s
brothers, Robert Friede, 68, and Thomas Jaffe, 58, could take possession of the entire collection. The judge determined that John Friede had violated the terms of an October 2007 settlement in the estate dispute in which he put up his collection as collateral. Later the city attorney’s office in San Francisco, acting on the de Young Museum’s behalf, sued and obtained a temporary restraining order prohibiting the brothers and John and Marcia Friede from disturbing the collection until a judge could determine who legally had title to it.”
- Kate Taylor, THE NEW YORK TIMES12
Creative Gifting
(with strings)
• Doris and Donald Fisher Collection Galleries at SF MoMA
– Loan ends in May 2116
– About 60% of indoor galleries will have work from the collection
– Some works in the collection belong to Fisher Foundation while
others belong to Doris Fisher.
– Generosity, but with curatorial control.
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Loan agreements
• Why loan?
– Public spirited; increases art’s value
• Get the basics right:
– Term of loan
– Location of loan (more than one museum venue — more than
one loan agreement?
– Credit to lender?
• Get the physical care right:
– "Museum quality" craters, shippers, unpackers, climate, damage
notice etc.
• Get the insurance clear:
– Whose insurance? Museum liable regardless of insurance?
• Get the law right: copyrights, disputes, international etc.
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What Donors
Want (Sometimes)
• A commitment to display
– Sometimes, in a particular way (e.g. Barnes)
• Ongoing maintenance
– Endowment
• Educational and programming concerns
• No deaccession or other sale
• But consider the Museum’s concerns
– Curatorial integrity
– Can’t opine on value
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Jerome L. and Ellen Stern
Restrooms at the New Museum
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Insurance and
agreed value
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June 2006, Nick Flynn was caught on
camera as he fell down a staircase at the
Fitzwilliam Museum in Cambridge,
smashing three 17th-century vases worth
an estimated £500,000.
Cultural Heritage
and Export
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The Three Graces by Antonio Canova Rome, 1814-1817, carved marble. Museum no. A.4-1994, © Victoria and Albert Museum, London
After a five-year struggle, Britain prevented the Three Graces sculpture from being exported to USA, raising $11.75 million to match offer made by the Getty Museum in California
The Innocent Eye Test
– Mark Tansey
Millionaire Nurse
–Richard Prince
Wylde v. Gagosian Gallery
Interesting Disputes
and Practice Examples
• Weill Naming Dispute (Avery Fisher, etc.)
• Gifts of stolen artwork
• Gifts of fake artwork
• DIA, Corcoran and Other Disputes
• VARA (damage) disputes
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Father (not) Mark Landis
One might not think of light as a matter of fact, but I do. And it is, as I said, as plain and open and direct an art as you will ever find.—Dan Flavin, 1987
22© 2011 LYNN CAHILL LLP
Private art museums and
foundations
• 43 private art museums in the US (recently under scrutiny by Senate Finance
Committee)
• In the UK, no real distinction between private and public charities
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Glenstone, Potomac, MDThe Brant Foundation Art Study
Center
Greenwich, CT
Any Questions?
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Daniel Simon
Collyer Bristow LLP, 0044 (0)20 7242 7363, [email protected]
David Sleeman
Winston Art Group, 001 212 542 5755, [email protected]
John Cahill
Cahill Partners LLP, 001 212 719 4400, [email protected]
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