The Fight to Keep Rockwell (& Others)

On January 16, 2018, members of the Berkshire Museum appealed the Berkshire Superior Court’s dismissal of their request to enjoin the museum’s proposed sale (deaccession) of 40 works of art. The museum’s members liken their position to shareholders of a for-profit corporation and argue that they have standing to sue the museum for an action violates the museum’s governing charter.

 

In July 2017, the museum announced that it would sell 40 works from its collection to raise money to allay the museum’s “serious financial difficulties.” The museum world reacted forcibly to the decision to sell these works, which include two works donated by Norman Rockwell. Berkshire County residents, museum members, and Massachusetts Attorney General Maura Healey filed a lawsuit against the museum’s trustees to enjoin the auction or sale of museum works at Sotheby’s, claiming that the sale would violate the museum charter and fiduciary duties. Rockwell’s sons claimed that the sale violated their father’s intentions that the paintings remain in the museum’s permanent collection.

 

On November 7, 2017, the Berkshire Superior Court ruled that only the Attorney General’s Office, which has jurisdiction over public charities, had standing to sue. The Court also denied the Attorney General’s office’s request for an injunction. The Attorney General’s office appealed this decision, and on November 10, 2017, Justice Trainor of the Massachusetts Appeals Court entered a 30-day preliminary injunction against the museum. The Court subsequently extended the injunction to prohibit any sale of the museum’s works until at least January 29, 2018, giving the Massachusetts Attorney General time to investigate the sale’s legality.

 

The museum’s members rely on the Attorney General’s reports in their appeal, arguing that the investigation supports their argument for an injunction. The Attorney General’s Office states that it sought the injunction “to enjoin the Museum from taking the extraordinary step of selling 40 works of art that amount to substantially all of the value of its fine art collection at auction.” It argues that 1) the planned deaccession violates the museum’s mission to operate as an art museum, 2) the sale of two works donated by Norman Rockwell would violate the artist’s intentions, 3) the sale of 19 items acquired before 1932 is prohibited by the museum’s founding charter, and 4) the trustees have breached their fiduciary obligations to the organization. The Attorney General further emphasizes its role in “overseeing charitable trusts.”

 

Museum trustees contend that there are no restrictions on the sales of the works, and that they must sell the works in order to prevent the facility’s closure. Furthermore, the trustees content that the injunction will suppress consumer interest in works if the sale proceeded.

 

The renewed preliminary injunction will expire on January 29, 2018.


Harriet Alexander, Norman Rockwell’s Legacy at the Heart of Bitter Legal Dispute, The Telegraph, (Nov. 19, 2017), https://perma.cc/3QPP-M8NZ.

Editorial, Change or Die: Choice is Clear for Berkshire Museum, Bos. Globe, (Nov. 26, 2017), https://perma.cc/JDN3-CWFV.

Jon Garelick, There’s More at Stake in the Berkshire Museum Case than a Single Museum, Bos. Globe, (Dec. 4, 2017), https://perma.cc/H2QM-28PV.

Ben Garver, Appels Court Justice Extends Injunction on Berkshire Museum Art Sale, The Berkshire Eagle, (Dec. 13, 2017), https://perma.cc/6FDQ-663K.

Patricia Hurtado & Katya Kazakina, Troubled Museum Can’t Be Halted From Selling Cherished Rockwells, Bloomberg, (Nov. 7, 2017), https://perma.cc/BMU4-76T2.

Nicholas O’Donnell, Members of the Berkshire Museum File Appeal Papers to Stop Museum’s Planned Sale of 40 Works from its Collection, Art Law Report, https://perma.cc/8EDK-GYTQ.

Larry Parnass, Attorney General’s Report Reasserts Opposition to Berkshire Museum Art Sale, The Berkshire Eagle, (Jan. 4, 2018), https://perma.cc/87GD-3CVN.

Larry Parnass, Attorney General on Track to Wrap up Berkshire Museum Inquiry, The Berkshire Eagle, (Jan. 3, 2018), https://perma.cc/72GC-HJE5.

Andrew Russeth, Massachusetts Attorney General on Track to Complete Berkshire Museum Inquiry by Late January, ARTNEWS, (Jan. 3, 2018), https://perma.cc/X3SQ-6TLU.