The George Lindemann Journal by George Lindemann

Longtime art collectors Debra and Dennis Scholl have donated about 300 artworks to the Pérez Art Museum Miami.

By Hannah Sampson

hsampson@MiamiHerald.com

For museums and other institutions confronted with the sometimes onerous restrictions that donors place on major gifts, forever can be a very long time.

In Boston, the Isabella Stewart Gardner Museum still keeps most of its galleries illuminated at the equivalent of candlelight because that’s how Mrs. Gardner wanted it when she died in 1924.

In Tennessee, Fisk University, facing possible closing, needed court permission to sell a stake in an art collection that the artist Georgia O’Keeffe had donated with the proviso that it never be sold.

And now the Brooklyn Museum is asking a judge to bypass the wishes of Col. Michael Friedsam, who ordered before he died in 1931 that his collection be kept together. Conservators there discovered that a quarter of his 926 works were not of museum quality, were misattributed or, in a few cases, were fakes. So now the museum is trying to unload those unwanted gifts as if they were a Christmas fruitcake.

Handling what is known in the philanthropic world as donor intent is vexing for many institutions. How do you adhere to a donor’s wishes when they seem to interfere with the best interests of the institution?

“A respect for donor intent is essential for philanthropic integrity,” said Adam Meyerson, president of the Philanthropy Roundtable, an association dedicated to protecting benefactors’ interests. However, he added, “You’re not serving donor intent if you go bankrupt.”

The tension between contributors and institutions is hardly new, but it has gained a higher profile in recent years. The weak economy has shrunk museum budgets, while technology or evolving tastes have led curators to reassess once venerable works. Institutions, which need money or space as artworks fill their basements, often look to sell items donated with the stipulation that they never be relinquished.

When it came to the Clyfford Still Museum, the City of Denver in effect argued that it had to violate the Stills’ wishes in order to fulfill them. Still’s wife, Patricia, gave Denver 2,400 of her husband’s works after his death with the understanding that the city would build a museum dedicated solely to his work and never sell or lend any of the art. But in 2011, six years after Ms. Still died, when fund-raising for the museum slowed, Denver received court permission to auction four of the paintings.

Amid cases like these, consultants and nonprofit organizations have stepped up efforts to help benefactors generate donations and wills that better ensure that their wishes are honored long after their deaths.

“I’m certainly getting more phone calls” about donor intent, said Jeffrey J. Cain, in 2008 a founder of the consulting firm American Philanthropic. Mr. Cain, who wrote a free guidebook in 2011 titled “Securing Your Legacy: What Every Philanthropist Needs to Know About Preserving Donor Intent,” said the issue had “really captured the attention of conservative-minded donors, especially those giving gifts to the academy who worry about how those gifts would be managed over time.”

Philanthropy experts say that donors across the political spectrum are concerned about preserving their vision. But examples of foundations that have leaned left after being created by die-hard capitalists, like the carmaker Henry Ford and the oil magnate J. Howard Pew, have prompted several conservatives to speak out more loudly about the importance of donor intent.

“The Pews would spin in their graves,” states one of several case studies featured in the Philanthropy Roundtable’s library, which details the liberal organizations and causes, from radical environmentalists to campaign finance reform, that are financed by the bequests of conservative capitalists. “It hurts the growth of philanthropy if the foundations that donors set up proceed to ignore or violate the most cherished principles of their founders,” Mr. Meyerson of the Roundtable said.

Some philanthropy veterans said the interest in creating foundations with a limited life span could stem from growing concerns about donor intent. “Any perpetual foundation is going to be liable to drift,” said James Piereson, president of the William E. Simon Foundation.

Mr. Piereson was once executive director of the conservative John M. Olin Foundation, which was devised to spend all of its assets within a generation of Mr. Olin’s death in order to prevent mission drift.

“Donor intent cannot realistically be guaranteed beyond a generation,” Mr. Piereson said.

Museum administrators say they do their best, but that violating a donor’s wishes is sometimes unavoidable.

In perhaps the most famous of these cases, the Barnes Foundation in Pennsylvania convinced a judge a few years ago that its very survival depended on breaking the terms of its founder’s trust so it could move his magnificent art collection from suburban Merion to downtown Philadelphia.

Mr. Meyerson said the Barnes case illustrated how some restrictions could sabotage a donor’s desires. He pointed to a requirement that the Barnes invest in only Treasury bonds, which hamstrung the foundation’s finances. Even now, several months after the new Barnes opened its doors, the case remains a rallying point among an assortment of advocates in the philanthropy, legal and arts worlds who have campaigned for tighter compliance with donors’ wishes.

For the Brooklyn Museum, the issue is also financial. Colonel Friedsam’s will stipulated that his collection of paintings, porcelains, historical weapons and costumes never be split up. But although the inferior objects will not be displayed, museum administrators say they will, nonetheless, cost tens of thousands of dollars to store because the museum is running out of space.

In most states the attorney general is responsible for monitoring donations to charitable organizations, and in New York the attorney general has entered the case in support of the museum. The court has said that if the museum wants to split the collection, it must first try to find out whether any of Colonel Friedsam’s alternate heirs are still alive.

Since donations are often a museum’s lifeblood, most go to great lengths to fulfill a donor’s desires faithfully. The Museum of Modern Art in New York, for example, had to part with two beloved van Gogh drawings in 1998 because the donor, one of the museum’s founders, directed that they be sold after 50 years, on the assumption that they would no longer be sufficiently modern.

And visitors to the Gardner Museum in Boston, where nothing in the darkly lighted galleries ever changes position, can see the frames and the ragged edges of 13 paintings that were cut out and taken during a brazen 1990 theft. Because Mrs. Gardner’s trust ordered that nothing be moved, curators have chosen to leave the frames rather than empty space on the wall. Many museum administrators agree that Mrs. Gardner’s carefully detailed instructions have created an unusual gem of a museum.

Nonetheless, most would no doubt prefer that donors leave the decision-making to them, emulating the stance of John D. MacArthur, who once told a trustee of his foundation: “I figured out how to make the money. You fellows will have to figure out how to spend it.”

By PATRICIA COHEN

Posted By George Lindemann - The George Lindemann Journal

New York’s highest court has decided to review a recent ruling that could force the state’s auction industry to end its longstanding practice of keeping sellers’ names anonymous.

Most sellers in the New York auction market remain anonymous, and auction catalogs typically reveal little more than that a work is from a “private collection.” The court did not rule that auction houses had to publicize widely the name of a seller, only that buyers are entitled to know it. Buyers — themselves often people who anonymously sell items at auction — have seldom complained about the practice, while sellers have come to expect their identities to be shielded.

But in October, in a dispute over the sale of a 19th-century silver-and-enamel Russian box, a four-judge appellate-court panel unanimously ruled that state law has long required that buyers be given the names of sellers in postauction paperwork for the deal to become binding.

Many art-law experts say the decision, if upheld, could significantly change the way the auction business is conducted in New York State.

“As of now you can back out of any transaction where the name of the seller is not provided,” said Peter R. Stern of McLaughlin & Stern, a Manhattan lawyer who represents dealers, collectors and auction houses and was an outside counsel to Sotheby’s.

The lawyer for the auctioneer in the case said Christie’s had inquired about submitting a brief when the New York Court of Appeals, which last month announced its intention to review the case, takes it up this spring. The auction house declined to comment.

Jonathan A. Olsoff, director of worldwide litigation for Sotheby’s, said that auction house viewed the decision as “narrow and technical” and that others were overstating its impact. Although fine-arts sales are the highest-profile auctions in the state, the ruling would also affect the sale of other items, like heirlooms, vehicles and livestock, which are also typically auctioned anonymously by hundreds of companies every week.

Anonymity is often prized because it protects personal privacy and allows institutions quietly to sell items from their collections that they no longer need. In some cases it can also cloak the embarrassment of debt or help sellers avoid setting off family conflicts over the disposition of inherited assets.

“Anonymity should not be seen as an abuse of the law,” said Christine Steiner of Sheppard Mullin, a Los Angeles law firm. She is a former Maryland prosecutor who has represented sellers from all income levels.

The ruling came in a case involving an auctioneer in Chester, N.Y., William J. Jenack, who sold a Russian antique in 2008 for $460,000. The piece, a czarist box made by I. P. Khlebnikov, a Fabergé contemporary, depicted aristocrats feasting on a roasted swan. Mr. Jenack said the top bidder, Albert Rabizadeh of Long Island, refused to pay after “grumbling about the price.”

Mr. Jenack sued for payment and won, but the decision was overturned by the appellate court when Mr. Rabizadeh challenged the transaction because the seller had not been identified in the postsale documentation.

In arguments last year before the appellate court lawyers for the auctioneer said that revealing the seller would overturn centuries of commercial practice and badly burden the industry. But the appellate panel, citing New York’s anti-fraud statutes, was unmoved.

“While it may be true that auction houses commonly withhold the names of consignors,” Justice Peter B. Skelos of the appellate division said in his ruling, “this court is governed not by the practice in the trade, but by the relevant statute.” He said the law “clearly and unambiguously requires that the name of the person” selling the item be included in documents provided to the buyer.

If the ruling stands, some experts say, a buyer denied a seller’s name would have the right to walk away from any purchase, as happened in Mr. Jenack’s case.

Through his lawyer, Daniel R. Wotman of Great Neck, N.Y., Mr. Rabizadeh declined to comment, but Mr. Wotman said, “Auction houses and consignors need to comply with the law.”

Benjamin Ostrer of Chester, the lawyer for Mr. Jenack, said the ruling represented “a wholesale invitation to have people renege.”

Mr. Olsoff of Sotheby’s disagreed however. “The decision,” he said, “deals only with the evidence that is required if an auction purchaser defaults in paying and is sued by the auction house.”

Several lawyers said auctioneers could try to resolve issues by having buyers agree to anonymity in writing before bidding. But Leila A. Amineddoleh, an expert on art law at Lombard & Geliebter, said she would discourage buyers from signing such a waiver, especially because the seller’s identity can aid with provenance questions and enhance the future value of an item.

She predicted that if the ruling is upheld, some auctioneers would lobby in Albany for legislation to exempt them from disclosing the seller.

Nicholas M. O’Donnell, a lawyer with Sullivan & Worcester in Boston who writes that firm’s Art Law Report, said the ruling also allowed winning bidders to sue auction houses for sellers’ names. “Once the gavel falls there is a binding agreement that cuts both ways,” he said. “The implications are very far-reaching.”

Mr. Jenack said fellow auctioneers worry that their clients would sell in other states where privacy is protected.

Lawyers said they had not heard of court rulings in other states that appeared to restrict the granting of anonymity to sellers at auction.

One person with a strong interest in the case is the box’s seller, Jonathan A. Thompson, 70, of Greenwich, Conn. He said anonymity was the last thing he cared about when he put the family heirloom up for sale in 2008.

He ended up with $50,000, he said, when the box was resold at auction in 2010, not the money he once stood to make, but far more than the $5,000 value first put on the box when Mr. Jenack originally advertised it.

“I didn’t ask to be anonymous,” he said. “I didn’t think at all about it.”

Wendell Castle’s installation “A New Environment” is on view at Friedman Benda in Chelsea.The cantilevered staircase at right leads to a treehouse-like pod.

The American designer Wendell Castle is known for his idiosyncratic, organic and slightly surreal furniture, which he has been producing in laminated wood, plastic and other materials since the 1960s, and which is highly collectible. Castle, who turned 80 in 2012, showed his work at Design Miami last month, and today his exhibition “A New Environment” opens at Friedman Benda in Chelsea. (Another Castle show, “Volumes and Voids,” is on view just upstairs from Friedman Benda at the Barry Friedman Gallery through Jan. 26.)

The exhibition’s centerpiece is a massive, arresting environment of stack-laminated, carved wood that is rasp-finished and stained black. It comprises a modular platform, three sculptural chairs, a totemlike structure studded with LEDs and a cantilevered spiral stair that leads to a podlike chamber, lined in flokati carpet, which offers snug lounge seating for one, complete with reading light, shelf and several openings to let in light and air. It’s kind of a treehouse for grown-ups — rich ones, that is. At this writing, the price of the environment had not been set, but Castle said that it would likely be in the vicinity of a $1 million.

This is Castle’s largest work to date. It is a follow-up of sorts to his 1969 piece “Environment for Contemplation,” which also featured a pod but which was set on the floor. “I wanted to put something in the air,” he said. A steel structure reinforces the central column and stair treads; as the designer explains, this is necessary to support the pod, which weighs about 1,000 pounds.

From left: the pod, which is lined in flokati carpet, has built-in lounge seating for one; three additional pieces in the exhibition include “The Light of Darkness,” which combines a cantilevered chair, a table and a light.

On the fringes of the environment are three other pieces — a settee, a desk and a chair with its own table and light — with the same biomorphic forms or, as Castle calls them, “ellipsoids, kind of mushed together.” He cites the artists Henry Moore, Joan Miro, Jean Arp and Constantin Brancusi as early influences, but it’s clear that they’ve stayed with him. “I loved the idea of a ‘soft’ vocabulary, and still do,” he said. Castle enjoys chewing over ideas that have provoked him for years, but now he’s doing it with the aid of a robot, which he said will help to “carve some crazy-shaped voids,” since it can work in smaller spaces than traditional woodworking tools.

Next on the horizon is an exhibition in the fall at the Carpenters Workshop Gallery in Paris. There will be at least one bronze piece in the show, and Castle is experimenting with even rougher textures. For now, however, he was busy putting the finishing touches on the environment before the opening party. And when told that the piece’s outsized scale really called for its own, specially designed space, Castle replied, “I’ve thought about how to do that room.”

“A New Environment” is on view at Friedman Benda, 515 West 26th Street, through Feb. 9.