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					Law and the Visual Arts
Professor Alex Roosa 11/8

Museum Law
• Has been described as sub-specialty of art law. • In its broadest sense, the term museum law connotes the interface of museums with the legal system (both domestic and foreign). • In its narrowest sense it refers to the body of legal principles applicable to the internal governance and operation of museums. • The legal issues confronting museums are nearly infinite in their variety and often arise in unexpected ways and not infrequently implicated complex political, social, economic or moral concerns.

Vincible Ignorance: Museums and the Law
• Weil begins with three propositions: 1) that the tangle of legal considerations in which the day to day operation of American museums has become increasingly enmeshed is not a transient phenomenon; 2) that the day to day responsibility for dealing with these legal concerns, falls squarely on the director; 3) that we have reached a point which would constitute culpable negligence and an abuse of trust if museums attempted to deal with legal considerations w/o benefit of counsel.

Vincible Ignorance: Museums and the Law
• Weil notes that should you accept these propositions, short of replacing every American museum director with a versatile (and probably independently wealthy) attorney, some provision must be made to provide our present directors with regularly available access to competent professional counsel. • This need for counsel must be recognized as a normal incident to the management of museums.

Vincible Ignorance: Museums and the Law
• The most difficult problem is that it is not enough for a museum director to be provided with competent legal counsel, but the need for the director to be able to recognize situations that require reference to outside professional counsel. • Weil’s advice to directors and trustees? Better to be too cautious, than too cavalier.

Vincible Ignorance: Museums and the Law
• Weil reiterates that with few exceptions, there is no body of law that is particular to museums. Museums are complex entities, the various aspects or activities of which are subject to various bodies of law, that, for the most part are not interrelated. • For each of a museum’s characteristic aspects or activities, there is a particular body of law applicable, one to which the museum for the most part, subject in common with a host of other organizations or individuals who share that same characteristic.

Cuban Museum of Arts and Culture, Inc, v. City of Miami 766 F. Supp. 1121 (S.D. Fla 1991)
• TTs’, seek an injunction preventing the City of Miami from evicting the Cuban Museum from the premises that is has leased from the City for over nine years. In addition to injunctive relief, TTs’ seek declaratory relief and damages pursuant to 28 U.S.C 2201 and 2202 and pursuant to 42 U.S.C. 1983 and 1988 • During the hearing on the motion for preliminary injunction, parties consented, at Ct.’s request, to consolidate the hearing with the trial on its merits.

Cuban Museum of Arts and Culture, Inc, v. City of Miami 766 F. Supp. 1121 (S.D. Fla 1991)
• Re: 1st. Amendment Claim: Although the TT may not have a “right” to the renewal of its lease, that conclusion is not dispositive of this case. Citing Perry, Ct. notes that the focus of the court’s inquiry is whether the City of Miami denied the Cuban Museum continued possession of the building now housing the Museum on the basis of TTs’ exercise of 1st Amendment rights.

Cuban Museum of Arts and Culture, Inc, v. City of Miami 766 F. Supp. 1121 (S.D. Fla 1991)
• Ct notes that the TTs’ claim that the constitutionally protected conduct was the decision to exhibit, prior to the auction, works created by Cubans living in Cuba or by Cubans who had not denounced Fidel Castro and his government. The decision made and the ideas conveyed by the Museum and its directors, were that art should be exhibited and made available to the public regardless of the political benefits and ideology of the artist. This decision and its expression are fully constitutionally protected by the 1st Am.

Cuban Museum of Arts and Culture, Inc, v. City of Miami 766 F. Supp. 1121 (S.D. Fla 1991)
• Ct finds that the TTs’ views and the manner in which they expressed them, conduct protected by the 1st Amendment, was clearly a substantial and motivating factor in the City’s decision to bring an end to the Cuban Museum’s continued possession of the building.

Cuban Museum of Arts and Culture, Inc, v. City of Miami 766 F. Supp. 1121 (S.D. Fla 1991)
• Ct. notes that the irreparable injury is the direct penalization of the TTs’ for the exercise of their 1st Amendment rights. CT. also notes that an ongoing injury is occurring as the City continues to take steps in order to penalize the TTs’ for the exercise of their 1st Amendment rights, thereby chilling the TTs’ exercise of them by creating a fear they may suffer future penalties and denials of governmental benefits.

Cuban Museum of Arts and Culture, Inc, v. City of Miami 766 F. Supp. 1121 (S.D. Fla 1991)
• Ct states that the City is acting to deny the TTs’ the continued use of the city owned property that has served as the forum which the Cuban Museum has expressed its views for almost a decade. • Ct finds that such governmental action and the resulting continued efforts must be enjoined.

Organizational Structures of Museums
• Definition of a Museum - museums are public, quasi-academic institutions that serve as depositories of objects of human cultural heritage and specimens of the natural world, and use objects to educate the public. They function to protect and preserve the cultural, historical and natural environment and to fulfill the role of educating the public of the achievement and values of civilization and the character of the natural environment.

Commonwealth of Pennsylvania v. Barnes Foundation 159 A.2d 500 (Pa. 1960)
• On April 17, 1958, in the Court of Common Please of Montgomery County, a petition for citation was filed calling on the Barnes Foundation and its trustees to show cause why they should not “unsheathe the canvases to the public in accordance with the terms of the indenture and agreement entered into between Albert C. Barnes, the donor, and the Barnes Foundation, the donee…”

Commonwealth of Pennsylvania v. Barnes Foundation 159 A.2d 500 (Pa. 1960)
• Ct. notes that although the Foundation has assumed indisputable status as a tax-exempt public charity, its officers and trustees have consistently refused to the public admission to its art gallery. • Ct cites Delaware County Institute of Science, noting that “the test of all public charities is their extensiveness. If the general benefits of a charity are subject to private preferences or conditions by which a large proportion of the general public will be excluded, it is a private charity, and therefore, not within the protection (of tax exemption).

Commonwealth of Pennsylvania v. Barnes Foundation 159 A.2d 500 (Pa. 1960)
• Ct. notes that it cannot be questioned that the Attorney General is authorized to inquire into the status, activities, and functioning of public charities. • Lower Ct. held that Atty. General’s petition did not assert a cause of action, Ct. disagrees, noting” what more formidable cause of action could exist than the assertion that the trustees of a charitable trust are failing to carry out the mandates of the indenture under which they operate?”

Commonwealth of Pennsylvania v. Barnes Foundation 159 A.2d 500 (Pa. 1960)
• Ct holds that the trustees of the Barnes Foundation may not exclude the public from the Art Gallery without offering explanation as to why it ignores the expressed intention of the founder that the Gallery shall be open to the public. Defendants are required to answer petition for citation…


				
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