Norman Rockwell Gets His Day in Court

Berkshire Museum in Pittsfield, Mass. (Photo: Yakoniva/Alamy)
As a lawsuit pits Rockwell’s descendants against the small, Pittsfield, Mass.-based Berkshire Museum, the art world is captivated.

The biggest art-world headline of 2017 is probably, “Leonardo Gets Sold for $450 Million,” but the biggest art-world story of 2017 looks like the little Berkshire Museum’s quest to sell $70 million worth of art to finance a fool’s errand. It’s a story of a dissolute and destitute institution, legal intrigue, trustee mismanagement, and the spectacular collapse of a big auction. And it’s all wrapped in the cozy warmth of Norman Rockwell’s work.

Located in Pittsfield, Mass., the Berkshire Museum is an eccentric place. It houses in its Beaux-Arts building a fine aquarium, an ancient mummy named Pahat, Native American regalia, rare minerals, sculpture, fossils, and a small but superb collection of American and European painting. On the day it opened in 1903, its founder and early funder, paper manufacturer Zenas Crane, envisioned it as “a window on the world” for its largely rural, working-class audience. 

Today, the museum claims it’s nearly broke. Bad management, lousy fundraising, a collapsed local economy, and raids on its endowment have left it at a crossroads, it says, between death and reinvention. Last summer, its director, Van Shields, and its trustees, offered a plan called the “New Vision,” which would abandon its arts mission in favor of a focus on science and children’s programs. To finance this plan, they proposed replenishing the museum’s endowment through the sale of forty paintings valued at as much as $70 million, including some esteemed Hudson River landscapes and two of Norman Rockwell’s most famous pictures. (Rockwell lived in nearby Stockbridge and gave the paintings to the Berkshire Museum before his own namesake museum opened.) Last summer, Sotheby’s was secretly hired to sell this work at its November 16th auction of American paintings. 

This is the state of play in a fast-developing story: 33 of the 40 consigned paintings were withdrawn in September. They originally belonged to the Berkshire Athenaeum, the city’s distinguished library, until 1932, when the library transferred them to the museum. It turns out that they might be fatally encumbered by an old provision preventing them from ever leaving Pittsfield. Alas, record keeping is not the museum’s strong suit, and Sotheby’s failed to do its due diligence.

In the meantime, Shields has disappeared on medical leave. The public faces of the dispute are now Elizabeth McGraw, president of the museum’s Board of Trustees, and Douglas Crane. Until 2013, Crane worked for Crane & Co., once owned by the museum’s founder. One of the few big manufacturers left in Berkshire County, it makes stationery and much of the paper used to print America’s money. Crane is a museum trustee and supports the New Vision. My sense is that after helping finance the museum for a century, his family wants to move on.

If the New Vision collapses, a path could be open for committed, arts-savvy community leaders to take ownership of this odd little gem.

A lawsuit brought by Rockwell’s octogenarian sons claims he donated the art on the understanding that it would never be liquidated. They are joined by the Massachusetts attorney general’s office, which was pressured by Berkshire County’s art establishment to intervene. A second lawsuit, filed by local museum supporters, claims the trustees violated an old Massachusetts law requiring nonprofit-corporation trustees to get the approval of so-called corporation members before selling museum property. This is an arcane law and argument. Thanks to some more loosey-goosey record keeping, it’s unclear who at this point is a legally empowered “member” and what are the current and enforceable museum bylaws.

In October, the Berkshire Superior Court refused to issue a temporary injunction blocking the sale. The plaintiffs needed to show they had a chance to prove at a trial that Rockwell gave the pictures while mandating the museum could never sell them. The judge said this claim was far-fetched, and he was right. I’ve read hundreds of deeds of gift involving art. If the donor wants to block the museum from selling his gifts, he needs to say it. Divining his feelings, especially when he’s dead, is a non-starter. As long as the money raised from a sale of donated art stays with the museum, the museum has the right to sell it. Unless the board shows gross negligence or self-dealing, courts need to keep out. Otherwise, a dangerous precedent could be set. No museum wants judges straining to divine the intent of dead donors.

The Rockwell family next went to the Appellate Division. Three days before the auction, the judges there blocked the sale for 30 days with no written opinion. The court had two bad options: overrule a lower-court judge, which courts never like to do, or send the attorney general away empty handed. It chose the former option. In so doing, it allowed the plaintiffs and the AG to live to fight another day, pressured the competing parties to make a deal, and exposed the trustees to thirty more days of ridicule.

It also sabotaged the November 16th Sotheby’s auction. The collapse of the sale is surely the biggest auction-house debacle since the aborted sale of the contents of Dumfries House at Christie’s in 2007. Then, the Prince of Wales bailed out Chippendale’s great storehouse of treasures while everything was packed in trucks and headed to London. In this case, Sotheby’s catalogue was already printed and distributed. One of the Rockwell’s adorned its cover. And a third of its sale offerings were suddenly AWOL.

Sotheby’s, to be sure, was slated to make a lot of money. The top pre-auction estimate would put its 20 percent buyer’s commission at $14 million, to say nothing of the standard 10 percent seller’s commission, which using the same estimate would amount to $7 million. The museum’s contract with Sotheby’s is secret, though Sotheby’s has said the museum faces a big financial penalty if it withdraws lots. The museum is represented by Wilmer/Hale, a big Boston firm. Unless a museum supporter is paying its legal bills, the money is coming from the museum’s operating budget.

During the summer, the Berkshire Eagle, the region’s very good newspaper, endorsed the New Vision. On October 31, it reversed its support, calling the Vision’s financing scheme “a perilous gambit.” In the interim, it did Pulitzer Prize-worthy investigations of the plan and Van Shields, the director. On November 26, the Boston Globe weighed in, endorsing the sale as the only way to save the museum, while at the same time acknowledging that such a move would be “unprecedented in the museum world.” The Globe, the state’s biggest paper, rarely speaks on art issues or anything related to tiny, distant Berkshire County, so its endorsement was a big deal.

In late November, the museum asked for an expedited trial at the superior-court level to decide the basic legal issue: Did the trustees violate their fiduciary responsibility to shepherd the museum’s property? No one knows whether Shields, on medical leave, will return. His exit, permanent or temporary, puts the focus on the trustees, where it belongs. When things go sour at a nonprofit, trustees often seem to disappear as if they’d entered a witness-protection program. They won’t be able to do so here. 

We’re about to see the state court system and a clutch of lawyers excavate the board’s decision to adopt the New Vision, its consultants, its contract with Sotheby’s, its governance, its contract with Shields, and whatever else comes along. If I were a trustee, I’d be nervous.

There could be a silver lining to the collapse of the sale if the trustees lose in court. Until now, no one in Berkshire County with either serious money or cultural clout ever thought much about the Berkshire Museum. Now, it’s a front-page story. If the New Vision collapses, a path could be open for committed, arts-savvy community leaders to take ownership of this odd little gem. That would be a welcome outcome: With an enterprising director and a deep-pocketed board, the museum wouldn’t need to go from crisis to crisis or reach for pies in the sky. For now, though, the trustees seem to have dug in their heels.


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