Are artists abusing the right to be identified as the author of an artwork?

NEW YORK. I know I said the focus of the blog would be primarily English law but I felt compelled to cover this story from the US as I have moral rights on my mind after completing the module on artists' rights as part of my Diploma in Art Law with the Institute of Art and Law.

In 2012 the dealer Marc Jancou brought two related lawsuits: the first against artist Cady Noland for tortious interference with the consignment agreement between Jancou and Sotheby's for the sale of Cowboys Milking (1990) by the artist and the second against Sotheby's for breach of the same contract. The underlying (and undisputed) facts of both claims are that in 2011 Noland disclaimed the work owned by Jancou on the basis that it was damaged ("bent beyond repair") and Sotheby's consequently withdrew the lot from auction since the work could no longer be attributed to the artist. Noland's disavowal of Cowboys Milking constituted an assertion of her moral rights under the Visual Artists Rights Act, 17 U.S.C. §106A ("VARA") - more on that later.

 

The application of the law, which resulted first in the dismissal of the Sotheby's claim and more recently the claim against Noland, is straightforward. The contractual claim against Sotheby's was dismissed on a motion by the defendant for summary judgment because the consignment agreement by its terms gave the auction house the right to withdraw the work from sale if, in its sole discretion, its attribution was uncertain. When Noland disowned the work just days before it was scheduled to be sold Sotheby's was well within its contractual rights to pull it from auction as it effectively had no attribution. It was then only a matter of time before the tortious claim against Noland was dismissed since, inter alia, under the common law of torts there can be no interference with a contract without a breach of that contract. The implications for consignment agreements generally is evident: intermediaries will want contractual withdrawal rights to protect themselves, amongst other things, against artists' assertion of their moral rights especially given that such rights remain with artists regardless of who owns the artwork itself and/or the copyright. Similarly, consignors of art will have to consider claims other than tortious interference with a contract when bringing suit against an artist on similar facts (though in any event they should negotiate any withdrawal rights a consignee has to make them as narrow as possible). Note too that a consignor with major bargaining power could even get the artist to expressly waive his moral rights in a signed writing.

But enough of the routine application of the law - what drew me to this case was a comment by Jancou's lawyer questioning an artist's discretion to determine what constitutes a "distortion, mutilation, or other modification" of an artwork and thus to some extent control it potentially long after ownership has passed to a third party such as a gallery or a collector (see §106A(d) of VARA on the duration of the rights of attribution and integrity). According to plaintiff's counsel, federal legislation is "putting the fox in charge of the hen house" when it comes to enforcing an artist's right of integrity. It seems to me that the obvious response to this statement is to point out how the artist in question is surely in a far better position than the court to assess whether one or more artworks the subject of a claim has, or have been, distorted, mutilated or otherwise modified. Furthermore, there is a clear safeguard in the legislation to help prevent abuse of this statutory right of attribution: the artist must prove that the distortion, mutilation or other modification is "prejudicial to his or her honor or reputation" (emphasis added). This is an objective test and it is for the artist to present sufficient evidence to the court that reputational harm results from the treatment of the relevant artwork. I am not familiar with the jurisprudence in this area but I suspect that the burden of proof is not easily satisfied. I would add too that in this context, the interests of artists and intermediaries buying/selling their work should, for the most part, be aligned - if artists continuously and disingenuously abused their moral rights (at the federal level in the US these are limited to the rights of attribution and the right of integrity) they would likely kill over time any secondary market in their work or prevent one from developing which presumably they would not want to do.

Turning to the UK now, under The Copyrights, Designs and Patents Act 1988 (the "CDPA") the right of attribution does not include the right to prevent the use of an author's name as author of a work that has been the subject of "derogatory treatment" (essentially the equivalent of "distortion, mutilation or other modification" of a visual work under VARA). However, the CDPA to some extent protects this kind of attribution right in the form of the right to object to false attribution of a work. An artist that qualifies for protection of moral rights under the CDPA would have to demonstrate the following to prevail in a false attribution claim:

• the work was "altered",
• the alteration occurred after the author had "parted with possession" of the work and
• the person dealing with the work in the course of a business dealt with it as being unaltered knowing or having reason to believe (emphasis added) that that was not the case.

How is this similar/different from the position under VARA? Well for starters a false attribution claim under the CDPA has an intent requirement whereas in the US a person dealing with a work need not know or believe that the work has been distorted, mutilated or modified (indeed Jancou appears to have regarded the damage to Cowboys Milking as "just wear and tear"). But if discretion lies with the artist as to what constitutes an alteration of his or her work then asserting the right of false attribution is as easy as communicating this opinion (e.g., having seen the work on display) to a dealer who cannot then sell the work as being unaltered without infringing the artist's moral right. The fact that the CDPA does not define what amounts to an alteration of a work is, I think, significant especially when one compares this with the insertion of definitions of "treatment" and "derogatory" in relation to the right to object to derogatory treatment of a work. Another difference is that false attribution need not cause reputational harm to the artist as with the third kind of attribution right under VARA. Given the absence of this safeguard against abuse, unless the test for what constitutes an alteration of a work is objective and not in the artist's sole discretion (I will research this point), then the implications of this kind of moral rights for consignment agreements may be even greater in the UK than in the US.

Unexpected closing of Knoedler gallery arouses suspicion

NEW YORK. A Knoedler & Co. rep told Bloomberg the closure of the 165-year old UES gallery was a "business decision" but the unexpected announcement raised eyebrows as it came one day day after GLG Partners Inc. co-founder, Pierre Lagrange, filed suit in federal court against Knoedler and its former director Ann Freedman for allegedly selling him a fake Pollock back in 2007. Attempts by Lagrange to resell the $17m Pollock at auction in 2010 failed as both Sotheby's and Christie's "refused to accept consignment because of concerns about authenticity." The decision to close its doors may indeed be wholly unrelated to the Lagrange lawsuit but it certainly will not flare well in court.

NYCLA 4th Annual Art Litigation and Dispute Resolution Institute

NEW YORK. Next Friday, November 18 the New York County Lawyers' Association (the "NYCLA") will host the 4th Annual Art Litigation and Dispute Resolution Institute. The day-long event promises to be an unrivalled opportunity for lawyers and non-lawyers to discuss some of the most pertinent legal issues affecting the art world today. The experts attending include Lawrence M. Kaye (of Herrick, Feinstein), Judith Bresler (of Withers Worldwide and co-author of the art law treatise, "Art Law: The Guide for Collectors, Investors, Dealers and Artists" (3rd ed.)), Sandra Cobden (SVP and General Counsel of Christie's and adjunct professor at Cardozo Law School) and Andrea Crane (curator at Gagosian Gallery). One of the highlights no doubt will be the unique opportunity to examine recent litigation involving works by the artist Kazimir Malevich as the event brings together some of the key people tied to the Russian modernist artist today: Lawrence Kaye represented the heirs of the artist in their litigation against the City of Amsterdam (as well as MOMA and Harvard University) to reclaim artworks by their ancestor (he is also the current Secretary of the Malevich Society); Andrea Crane curated the exhibition "Malevich and the American Legacy" at Gagosian Gallery earlier this year and Clemens Toussaint is the current Treasurer of the Malevich Society.

To enroll, click here. NYCLA members get a discounted rate.

Art & finance: the rise of "art loans" for the well-heeled clients of private banks

NEW YORK. Bloomberg recently reported that former hedge-fund manager Michael Steinhardt secured a "very cheap" loan from JPMorgan Chase Bank by pledging a number of the works in his fine art collection (estimated to be worth over $200 million) as collateral. While the use of art as collateral to obtain finance has been on the rise for some time now (Steinhardt joins the ranks of other managers such as Nelson Peltz and Steven A. Cohen), it is hardly indicative of a widespread trend in the banking sector towards lending against art. While it is true that art assets have flared quite way in the economic downtown and consecrated their place as an alternative form of investment, this is largely true of mostly "blue chip" works i.e., the Picassos, Pollocks, Warhols etc. that form part of the fine art collections of a handful of high-net-worth individuals. For the most part, investing in art is risky and expensive (transaction costs are too often overlooked) and my mantra remains that people should buy art because they love it, not in the expectation of hefty returns. Still, it's interesting to see that a growing number of banks are offering their "well-heeled" clients the possibility of structuring loans in this way. It makes perfect sense because the kind of art we're talking about in these cases really is "a stable form of collateral," as Suzanne Gyorgy of Citi Private Bank describes it. "When you look at our client base," Gyorgy goes on to say, "it's savvy business people that for the most part are using the liquidity from the art loan to invest back in their businesses."

Warhol Art Authentication Board to be dissolved in early 2012

NEW YORK. After a two-month break from blogging, I had no idea what stories I would find upon my return but this one was certainly a surprise. The Art Newspaper has reported that the Warhol Foundation will dissolve its art authentication board (allegedly to focus on the Foundation's charitable and catalogue raisonné efforts) by early 2012. I say "allegedly" because, notwithstanding the fact that it costs $500,000 each year to run the board, it has repeatedly come under fire since its creation in 1995, especially with respect to its virtually monopolistic role in the art market on the question of the authenticity of purported Warhol works. Although in theory the decisions of the board are neither conclusive nor binding, when a work is declared unauthentic, it is tainted to the point of being unsaleable and you can guarantee that Sotheby's and Christie's will not touch it.

The most recent, and perhaps vehement, attack on the board was the Joe Simon litigation which, although a hard lesson in the costs and drama of litigation, raised the serious question of holding the Warhol Authentication Board (and authentication boards more generally) accountable as a result of the power they have to manipulate the market for a particular artist. The Joe Simon litigation was unique too in its novel way of structuring the claim against the Foundation as an anti-trust suit. Of course the key question in any anti-trust suit is not so much the extent to which the defendant has the power to control the market in question but rather if that power has been exploited to the detriment of the users in that market. The other highly criticized decision of the board was its 2010 downgrade of more than 100 Brillo boxes to "copies," despite Pontus Hulten's claim that the boxes had been made with Warhol's express authorization.

Regardless of one's view of the board, most will agree that the Foundation's decision to step away from the market towards a non-market purpose is a positive one for the Foundation, its members and the market. Whereas decisions on authenticity had been private (except where challenged), work on Warhol's catalogue raisonné is a public one which serves "Andy’s legacy and Warhol scholarship." It could be argued that determining whether a work makes it or not into the catalogue is indirectly a market function but because only 6% of works by Warhol are estimated to have undergonen the authentication process and catalogue researchers will review requests to include a work in the catalogue at their own pace, the Foundation's president Joel Wachs is right in saying that "the market will have to take care of itself."

Resale rights revisited: why all the controversy?

The artist's resale "royalty" right or droit de suite refers to an artist's right to a share of the proceeds realized from the resale of such artist's work. As the Lerner and Bresler treatise on art law astutely points out, the "prerogative is an attempt to equalize the copyright status of visual artists with that of other authors" because, unlike those creative authors who make substantial economic gains from the reproduction and/or distribution of their works, "a visual artist's primary source of income derives from the sale of the original work in which the image is embodied." In other words, copyright law alone is inadequate in the case of visual artists who warrant the protection of additional rights aimed at addressing this disparity in sources of income among artists. It is these additional rights "at the juncture of copyright, contract and property law" that are known as resale rights.

While resale rights legislation has been enacted in over 30 countries, including the EU, Brazil and Australia, attempts to federalize the right -- the most notable being those by Senator Jacob K. Javits of New York and subsequently Senator Edward N. Kennedy of Massachusetts -- have thus far failed and at the state level, only California has introduced droit de suite (see the California Resale Royalties Act). The question of whether artists should be entitled to resale rights has proven hugely controversial in the United States as illustrated by the removal of resale-royalty provisions from the original draft of the Visual Artists Rights Act of 1987 to ensure the revised bill's passage into law in 1990. The debate centers not only over entitlement itself but also over what the scope of any enacted rights should be and how resale rights would be enforced in practice (surveys of droit de suite legislation abroad have invariably indicated that these statutes are notoriously difficult to enforce and  generally ignored by market participants). The United Kingdom too has played host to a similar debate and it was not until the EU adopted Directive 2001/84/EC that The Artist's Resale Right Regulations 2006 were (somewhat reluctantly) introduced. The opposition to resale rights in the UK undoubtedly stemmed from London's preeminence within the global art market and the fear of losing out to other markets not burdened with the transaction costs associated with the royalty but interestingly, Lerner and Bresler point to yet another reason: the UK, like the US, is a common not a civil law jurisdiction and "the droit de suite impinges on two basic precepts of common law: the freedom to contract and the inalienability of property" (see Morseburg v. Balyon for an unsuccessful constitutional challenge to the California regime).

The Art Newspaper reports that resale rights are once again back in the spotlight as the Artists' Rights Society ("ARS") continues to lobby Congress for federal legislation that would make droit de suite apply to auction sales whilst exempting private sales. Unsurprisingly, the Art Dealers Association of America opposes the proposed legislation on the basis that the administration costs far outweigh the benefits and the reality that such costs would be borne by collectors -- the bread and butter of artists in the US -- and the majority of artists themselves, with only a handful of already successful artists actually reaping any economic gains. The one obstacle the proposal appears to have side-stepped by limiting rights to public sales is the insurmountable challenge of requiring private art transactions to be disclosed (privacy being one of the most deeply ingrained conventions of the art market). However, despite auction sales taking place in the public sphere, there is still considerable secrecy involved and many collectors will resist having to disclose their identity for the sake of paying a resale royalty. It's unclear if any rights introduced would be payable as a percentage of the total resale price, regardless of whether the resale was at a profit or a loss (as per the EU harmonization directive and the Australian model) or as a percentage of the difference between the purchase price and the resale price such that the royalty is only payable when a work is resold at a gain (as per the original Italian model and the California statute). Clearly, from a business perspective the latter is preferable but to be fair, the former is more consistent with the theory underlying the very nature of resale rights (as stated above, droit de suite is embedded in the act of reselling an original work, just like copyright hinges on the reproduction/redistribution of original works, in both cases the dollar amounts being irrelevant).

Nevertheless, no matter what the scope of a federal resale right is (another key question being the term of the right), the costs imposed on the market and the potential loss of New York's competitive advantage over those countries with such legislation are disproportionate to the limited gains to be made by the minority of visual artists whose work even has a secondary market. Having said that, data has failed to confirm that the introduction of resale rights in the UK has driven business away from London to New York, Geneva, Tokyo or Hong Kong. Which leads me to one final remark -- to date, there is still insufficient data to argue convincingly for or against resale royalty rights.

Met museum and Jan Cowles -- the true owners of the Mark Tansey cow painting -- file their own complaint against Wylde

Mark Tansey's "The Innocent Eye Test" (1981), the painting
that continues to spew litigation

The true owners of the Mark Tansey cow painting sold by Charles Cowles to Robert Wylde through Gagosian Gallery have filed a complaint seeking a declaratory judgment to force Wylde to hand over the painting. The Metropolitan Museum and Jan Cowles (mother of Charles Cowles) each own 31 and 69%, respectively, of the painting. Crucially, the fact that the plaintiffs co-owned the painting was a matter of public record (see the Met's website here).

Meanwhile, litigation instituted by Wylde against Gagosian Gallery is already pending (see here) and has attracted a lot of attention as people anticipate getting a  closer glimpse at the inner workings of the Gagosian powerhouse.

UPDATED: Latest on New York's deaccessioning criteria

NEW YORK. When the "emergency" regulations on deaccessioning finally expired without renewal last October, an ad-hoc committee to the New York State Board of Regents was formed to, as the Maine Antique Digest puts it, "review and make recommendations on the deaccessioning process to the cultural education committee and the full board." By "deaccessioning process" what is meant is both the enactment and enforcement of deaccessioning criteria to be applied on a permanent basis to museums and historical societies under the Board of Regents' chartering (notably excluding the Metropolitan, "which has a legislative charter").

The proposed criteria, published on March 2 in the State register (p.14 onwards), include deaccessioning to remove an item established to be inauthentic; repatriate or return an item to its rightful owner (may seem obvious but several European museums have had problems in the past precisely because the law did not state this as a criterion for deaccessioning); return an item to a donor due to the institution's inability to satisfy donor restrictions (often a highly subjective inquiry) and deaccessioning to "accomplish refinement of collections."

What, if anything, does that last criterion accomplish? Arguably nothing since as drafted it is completely open to abuse and will neither ensure possession in the future (donors' big fear) nor guarantee public access to artworks held in "public trust" (i.e., remedying the incomprehensible reality that collections are largely in storage while museums are increasing on the verge of financial collapse and closure). The criterion is quintessentially representative of that deaccessioning "exercise in smoke and mirrors." Just as before, in practise museums would be free to deaccession pretty much as they like and the only real restriction is in the use of the proceeds that can be used "only for the acquisition of collections or the preservation, conservation, or direct care of collections" (not without its own shortcomings and contradictions). Donn Zaretsky is of the view that "museums have succeeded in guiding the process to a place where the rules make them do what they were already doing" except now (and this is important), "that exercise in smoke and mirrors -- will have the force of law."

UPDATE: a few more (varying) views on the new rules (from The Art Law Blog):

• Sergio Sarmiento (VLA Associate Director, artist and blogger): "Among the more perplexing of criteria is the requirement that the art 'item has failed to retain its identity.' What the hell does this mean? It was once a painting but it is now a frisbee?"
• Judith Dobrzynski (arts journalist and blogger): "Not bad."
• Amy Goldrich (attorney): "[A]lthough the new rules appear to require a more carefully justified decision to deaccession, at least one criterion -- accomplishing refinement of collections - could end up being a virtual 'get out of jail free' card."

Notes from "A Conversation with Dan Brooks"

On April 20, the VLA hosted a talk with Dan Brooks ("DB"), attorney to Patrick Cariou in Cariou v. Prince, to discuss the case and the intersection between copyright laws and appropriation art generally. Here are some notes on what was said that evening:

• Failure to register an artwork such as a photograph does not mean the work is completely void of copyright protection. However, damages would be limited to actual damages - statutory and special damages would not be awarded, nor would disgorgement of profits or reimbursement of attorneys fees (injunctive relief may still be available though).
• Likewise, the court quickly dismissed Prince's initial argument that Cariou's works comprising the series "Yes, Rasta" were not copyright protected because, by merely documenting facts, they didn't constitute "original" works ("factual" statements and "ideas" are not protected). It was clear that Cariou worked relentlessly to capture the shot he wanted and a lot of thought went into the subject matter, the lighting and the composition of the (original) photos.
• Interestingly, the court considered the series "Canal Zone" as a whole when determining whether Prince could successfully avail himself of the affirmative defense of "fair use" (following a finding that the defendant has as a matter of law committed copyright infringement). DB did say though that it's likely the works will be considered individually at the sentencing proceeding (yet to take place).
• One way to think about the "fair use" defense is essentially as the recognition at law that most things are not "new" but rather build on what has come before, whether it be literature, visual arts, music etc.
• Most of the cases are decided as motions for summary judgment (so by a single district court judge) since there are hardly, if any, genuine disputes of material fact (i.e., those that are outcome-determinative) that need to go to a jury -- most of the evidence is with the plaintiff and the defendant themselves. Only they really know the facts pertinent to the four prongs of the test...
• ... Ironically this implies that the law puts a not insignificant premium on perjury. And hiring a top lawyer to draft the party's affidavit in light of the weight it carries in these cases.
• In summarising "fair use" case law to date, DB said the first prong (the purpose and character of the use, including whether the use is of a commercial nature) of the four-prong "fair use" test is still the most important and while the list is not intended to be exhaustive, in practice it is. Crucially too, the use must relate back to one or more of the 6 permitted uses in the lead-in to s.107: criticism, comment, news reporting, teaching, scholarship or research.
• The third prong regarding "the amount and substantially of the portion used" is measured against the original work, not the second work i.e., it is no defense to point to how much of the allegedly infringing work is original and not appropriated. Rather, the court looks at how substantial what was taken is as a proportion of the original work.
• The "Blanch" case is the only time an appropriation artist has successfully argued the "fair use" defense.
• The Cariou v. Prince decision is, as the VLA's Sergio Sarmiento put it, above all a decision in favor of art criticism for it forces appropriation artists to think about and articulate what and why they have created the work the subject of the litigation (probably to the dismay of some artists). US copyright law does not distinguish appropriation artists from among artists generally and it is not enough for a defendant artist to merely argue that he/she is an "appropriation" artist and therefore not guilty of copyright infringement. As Sergio said, that's just a "ploy" -- we're no longer in the 70s!

Donn Zaretsky of The Art Law blog (whom I had the huge pleasure of meeting at the event) has posted some links to commentary on the case: see here for artist Brian Dupont's views and here for law firm Sullivan and Worcester's analysis.

EVENT: A conversation with Patrick Cariou's attorney

Volunteer Lawyers for the Arts has invited Patrick Cariou's attorney, Dan Brooks, to speak with Sergio Sarmiento to discuss the case Cariou vs. Prince. If you're interested in copyright infringement and appropriation art and where the law draws the line between the two, the conference is likely to appeal to you. Details here and background here. It's unclear whether Dan Brooks will also discuss the claim against Larry Gagosian and Gagosian Gallery but I hope he does as the liability of intermediaries is another important and fascinating aspect of copyright infringement.

UPDATE: Robert Wylde v. Gagosian Gallery, Inc.

"The Innocent Eye Test," by Mark Tansey (1981)

The FT.com has reported that the Metropolitan Museum's website listed the Mark Tansey painting the subject of the recently filed claim against Gagosian gallery as "Partial and Promised Gift of Jan Cowles and Charles Cowles." And indeed it does -- here is the direct link. Last week, a spokesperson for Gagosian made a statement saying the gallery would "vigorously" defend the action and that Charles Cowles had "represented that he had clear title to the painting."



But shouldn't the gallery have done due diligence (granted, delicately) at the very least to confirm that its client had title to sell the consigned painting? Had they made even basic inquiries about the provenance of the painting the connection to the Met would have been revealed and a simple search of their website would have revealed the museum's interest in the painting. Surely the gallery doesn't just take representations of title made by prospective clients at face value (even if the seller is Charles Cowles)? The suit (which also comprises a claim over a cancelled sale of a Richard Prince nurse painting) will shed much-needed light on the inner workings of what is widely considered to be the most successful gallery in the world.

For background on the torts/property/fraud action brought by Robert Wylde against the Gagosian gallery see here.

"Heavy hitters" absent from Armory 2011 exhibitor list

The exhibitor list for the 2011 Armory Show, New York's largest art fair, has been released and as Lindsay Pollock points out, some of the "heavy hitters" in the New York market that participated in the 2010 fair will not be taking part next March. Names include David Zwirner and PACE and they join the 72 other dealers who will not be returning to the fair. Also skipping the fair are a couple of LES dealers such as Lisa Cooley, James Fuentes and Laurel Gitlen which is interesting in light of The Art Newspaper's recent article on the appeal and success of dealers based in the Lower East Side.

The total number of exhibitors is only down from 289 to 274 so absentees have largely been replaced, the new faces composed of a mix of European and Latin American dealers. Perhaps more noteworthy than who is attending Armory is where those that are not expected have flocked to: the Art Dealers Association of America Art Show, a fierce competitor of Armory and taking place on the same dates. Big names showing at the ADAA show include: Blum & Poe, L&M Arts and Marian Goodman Gallery.

UPDATE: NY's donor-friendly version of UPMIFA

Donn Zaretsky has posted on another article that accurately discusses the donor-friendly notice requirements under NY's version of UPMIFA. It also becomes apparent on reading the article how cumbersome it will be for institutions to comply with. For background see here.

Blair Di Donna gallery to open in uptown New York

NEW YORK. For those active or interested in the secondary market, former Sotheby's vice chair Emmanuel Di Donna is joining forces with London dealer Harry Blain to open the Blair di Donna gallery. The venture represents the teaming up of two artworld moguls -- Di Donna was with Sotheby's in New York for 17 years and Blain co-founded the London galleries Haunch of Venison (bought by Christie's in 2002) and very recently, Blain Southern (focused exclusively on the primary market and set to open in New York after closing its doors in Berlin). The Blair di Donna gallery is due to start trading next month and "the ambition is to have the doors open, and the first exhibition up, in time for the New York auctions in May." Keep you posted (no pun intended).

Deaccessioning frenzy in New York

Contrary to the outcry in the media this week, the New York State Board of Regents' decision on Tuesday to allow the deaccessioning "emergency" regulations to expire on October 8 is not going to result in the monetization of museum collections. The temporary regulations, in effect since December 2008, enjoined museum sales of collection artworks to cover operating costs and the Board of Regents had been expected to make the rule permanent, partly as a result of the Brodsky Bill (which outlawed such sales) collapsing in the state Legislature.

The news may have come as a surprise but the impact of the decision on deaccessioning practices is likely to be minimal (i.e. no mass exodus of art from "public trust to private hands"). This is because the existing regulations already stated that museums may only use the proceeds derived from deaccessioning "for the acquisition, preservation, protection or care of collections" and explicitly "in no event shall proceeds be used for operating expenses..." To be fair, the emergency regulations did restrict museums' options to sell collection pieces more sharply but as Donn Zaretsky posted, the existing regulations follow the deaccessioning guidelines of the American Association of Museums ("AAM") and the Association of Art Museum Directors ("AAMD") which the vast majority of people consider to be adequate deaccessioning policies.