Charity Law (2): The Tate and the Ofili Acquisition

A while ago I posted on the Beaverbrook Gallery dispute and the upcoming arbitration appeal: Art Law: "Intent", the Beaverbrook Collection and Donation Controversies. Ultimately, that dispute involved aspects of charity law in the art context. Thanks, now, to David Waterhouse for drawing my attention to another interesting charity law controversy involving a gallery, this time the UK's Tate (a path-forging art institution: see Roving Eye: Doris Salcedo at the Tate Modern). Whereas the Beaverbrook dispute dealt with whether the conveying of two major paintings, a Turner and a Freud, had been a gift by Lord Beaverbrook or merely a loan, in the Tate case, from 2006, the context is a major acquisition through money purchase by the Tate of "The Upper Room", a combined installation and set of paintings by Chris Ofili. As it transpired, Ofili was a member of the Board of Trustees when the purchase occurred and, after this fact became public through some digging by some anti-anti-art campaigners, the UK's charity commission found that the Tate, as a charity, was required as a basic principle of charity law to get advance permission when an acquisition confers a benefit on a trustee. A useful overview of the basic controversy can be found in a Bloomberg.com article, Tate Tightens Art-Buying Rules After Charity Commission Rebuke (by Linda Sandler). In it appears,

Why didn't the Tate ask permission for the Ofili purchase?
No one knew it was obliged to, [Tate Director] Serota said. No one at the Tate or at the National Audit Office or at the Department for Culture, Media and Sport had even suggested it was a general principle of charity law that if you benefit a trustee you need permission, he said.

For a 705,000 pound sterling purchase, it is hard to believe that a lawyer or two were not involved in shepherding the transaction; as for how hard it it is to believe a competent lawyer who (likely regularly) advises a major art charity did not know that advance permission was needed on these facts, I leave to you the reader.

...That said, if said lawyer was splendidly unaware that Ofili was in fact a Trustee, s/he may not have been aware of the conflict of interest that generates the charity law advance-permission requirement. In that sense, attention must fall squarely on the non-legal basic ethical compasses of everyone involved, who can be faulted if they did not intuit that a problem might just be present here. That being the case, what is the best solution for the future? Well, of course, call in another lawyer: "The Tate's reforms ... include the addition of the barrister Jules Sher to its ethics committee..."

As for Chris Ofili's "Upper Room" work, the Tate presented an exhibition with the following description:

Chris Ofili’s The Upper Room consists of thirteen paintings displayed in an environment especially designed by the architect David Adjaye. When it was first publicly exhibited in 2002, critics commented on the chapel-like qualities of the space and its lighting. The arrangement of twelve canvases flanking a thirteenth larger one suggests Christ and his Apostles, and the arrangement has an extraordinary sensory effect.
Each painting shows a rhesus macaque monkey, and each is dominated by a different colour, identified in Spanish on the elephant dung supports. In a text that accompanied the work’s first exhibition, a conservation biologist described the rhesus macaque as ‘loud, active, entertaining, fearsomely intelligent – the consummate cheeky monkey’. She also pointed out how rhesus monkeys have been venerated in certain religions, and observed that ‘monkeys may be godless but … rhesus macaques display a deeper degree of compassion for each other than do human beings’.
With this work Ofili raises questions about the relationships between civilization and untamed nature, between the religious and the secular.

I have always found Ofili's works (images thereof -- I have not yet had the fortune to see one in person) beautiful and have yet to decide whether his elephant-dung supports under his works are anything more than a gimmick. As for the rhesus monkeys, check two out. (All the others plus full picture credits can be found on the Tate site.)

Art Law: "Intent", the Beaverbrook Case and Art Donation Controversies

As some readers will know, I live part of my life as Professor of Law at Osgoode Hall Law School. Although "art law" is not as such one of my areas of academic focus, there are aspects I am working on for teaching and eventual writing purposes. I hope in the next couple years to offer a Transnational Art Law course at Osgoode. In any case, the present posting is the first example of a posting designed simply to draw attention, in case some readers are interested, to some intersection of art and law.

There is a particular and a general aspect to this posting. The particular aspect is to let people know (or remind those who already know) of an arbitral hearing that will open September 22 in Frederiction in the case concerning the transfer of works from the first Lord Beaverbrook, Max Aitken, to what became New Brunswick's Beaverbrook Art Gallery (one of the gems in the Canadian gallery firmament). The case started in 2004 when the estate of Lord Beaverbrook, run by his heirs through the Beaverbrook UK Foundation, sought the return of two extremely valuable paintings in order to then sell them so that Beaverbrook property in the UK could be restored and maintained. Those two paintings in the Beaverbrook Art Gallery collection were J.M.W. Turner's Fountain of Indolence (see above left, the painting, and former Beaverbrook Gallery director Bernie Riordan in front of the Turner, 'protecting' it) and Lucian Freud's Hotel Bedroom (right), which have been estimated together as worth something like $30 million. As part of this request for return of these paintings, the Foundation claimed that only 40 of 133 works transferred to the gallery by Lord Beaverbrook were intended as gifts (meaning they belonged to the Gallery) while the rest were intended by Lord Beaverbrook simply to be loans (meaning that ownership stayed with Lord Beaverbrook and thus passed to his estate, subject to whatever the terms of the loan were). In any event, the Gallery resisted both the claim that most of its collection was merely on loan (versus permanently gifted to the Gallery) and the specific loss of these two major works, and were not mollified by the Foundation's promise that, if the Gallery returned the Turner and the Freud, it would agree to all the rest of the works staying at the Gallery. The parties agreed eventually to take the matter to arbitration, choosing former Supreme Court of Canada Justice Peter Cory as the sole arbitrator. After extensive hearings (generating some 3000+ pages of transcripts) and a period of deliberation, Cory released his arbitral ruling in March 2007. He held that the factual record showed on balance that Lord Beaverbrook conveyed artworks prior to the opening of the Gallery in 1959 as gifts to the gallery (a total of 85 artworks) while those transferred afterward were loans (48 artworks). Amongst the pre-opening 85 artworks that were thus found to be the property of the Gallery were the coveted Turner and Freud paintings. What makes this still very topical is that the Foundation has not given up and has triggered the arbitral appeal procedure that the parties had agreed to when they decided to go the arbitral route (versus using the court system). The appeal involves three former judges from various provinces, with former Chief Justice of the Saskatchewan Court of Appeal, Edward Bayda, to chair the appeal that will open September 22. He is joined by two other former judges, Coulter Osborne (Ontario) who was chosen by the gallery, and Thomas Braidwood (British Columbia) who was chosen by the Beaverbrook U.K. Foundation -- by the arbitral procedure, these two judges selected Bayda to be the third member and chair. The case will be interesting for the art-law issues (involving mostly what kinds of reasoning and presumptions to use when evaluating the factual record to determine whether the intent of a person transferring artwork to a charitable institution was to be a donor or a lender).

But the case also is of more general interest. It triggers some free associating about the various ways in which art transfers to charitable institutions can create fraught issues for trust law and tax law. A really interesting article in Fortune magazine ("Giver's remorse -- Be careful what you ask for: Donors and recipients are contesting what gifts are - and when they can be taken back," by Tyler Green) uses the Beaverbrook case as a launching pad for discussing how these issues arise. Tyler Green touches on historic cases such as Georgia O'Keeffe's gifts of her own artworks (and subsequent wishes by the recipients to sell the work to raise cash) and the move of the Barnes museum from its intended location to Philadelphia (an art world scene that Barne detested). A longish but engaging read. Recommended. Note that the article was written just before the Cory ruling came down, which is why it does not discuss the result of the dispute.