A new series of professional development courses aimed at mid-career curators and museum professionals was recently launched by Whitechapel Gallery in partnership with the Art Fund. Under the portfolio title Inside the Gallery: How To, each course used the expertise of Whitechapel Gallery internal personnel and external industry leaders to deliver practical and professional skills training, insights and guidance. The first five courses explored how to: curate an exhibition; fundraise – corporate development; curate a youth programme; engage audience through social media; and publish art catalogues. The last course dealt with how to interpret art law and ethics, by considering the following keys to better understanding.

In contemporary liberal democracies, laws aim to regulate behaviour to benefit society as a whole; ethics aim to regulate behaviour where laws do not reach. In other words, laws aim to order society’s behaviour – acts and omissions – that may be proscribed (must not be done), prescribed (must be done), or permitted (may be done); and in the gaps between such laws society has free choice, which may be motivated by self-interest or by the anticipated reaction of others including society as a whole. It is around unselfish behaviour that ethical considerations arise: moral principles to guide or govern behaviour acceptable to others.

From the perspective of professionals working inside a public-facing contemporary art gallery or museum, their freedom of choice is better informed by first understanding the legal framework within which they operate. A fundamental starting point is the legal constitution of the institution itself. For example, Tate and other national collections are established and governed by a UK Act of Parliament specifying powers and duties. Whitechapel and other non-statutory galleries are typically charitable limited liability companies registered without profit-shares, established and governed by a memorandum and articles of association complying with UK company and charity laws. By whatever legal means they are established, such institutions are required to act only within the powers specified by their founding constitution: acts or omissions exceeding their legal authority are not legally valid.

A gallery institution’s legal authority to collect work will primarily be governed by its constitutional powers to do so, then by its own policies within those powers. Such powers and policies combine to determine the legitimate framework within which individual acquisition choices can be made. For example, Tate’s remit is the collection of British art from 1500 and of international modern and contemporary art from 1900; and in recent times Tate’s acquisition policy has expanded the geographical remit of its collecting to include works from Latin America and the Asia-Pacific region.

Disposal of collected works will likewise be determined by such powers and polices, which often restrict curatorial freedom of choice. In Tate’s case there are three principal disposal policies: transfer of a work by sale, gift or exchange to another UK national museum where the work would be ‘more appropriately housed’; disposal of work ‘unsuitable for retention without detriment to the interests of students or other members of the public’; disposal of a work which has become ‘useless’ by reason of damage, physical deterioration or infestation. Tate’s policy has a built-in safeguard policy for all disposals: ‘the decision to dispose of an item, whether by gift, exchange, sale or destruction (in the case of an item too badly damaged or deteriorated to be of any use for the purposes of the Collection or for reasons of health and safety), will be the responsibility of the Board of Trustees acting on the advice of professional curatorial staff, and not of a curator acting alone. The Trustees will ensure that any disposal process is carried out with openness and transparency.’

Further legal considerations may affect not only choices of works to collect or release, but also the legal validity and soundness of the acquisition/disposal transaction. UK gallery institutions enjoy a wide reputation for keeping and maintaining good records of acquisition transactions. Diligent research for proof of a work’s provenance and authenticity before acquisition is essential, especially when public money is used for the purchase. Risks of acquiring ‘tainted’ work can be further mitigated through the inclusion in written acquisition documents of guarantees or warranties by the seller or donor to the gallery institution that the work has sound provenance of ownership and authenticity. Such undertakings may enable a gallery to recover its purchase payment from the seller if the work turns out to be tainted. Other terms and conditions in acquisition documents may include the gallery’s undertaking to the seller or donor that a work will not be disposed of by way of sale, and/or will not be sold to an overseas buyer, and/or that archival material will only be accessible to legitimate scholarly or academic researchers.

Non-traditional methods and materials and technologies are increasingly used by artists to create contemporary work. These pose new and different challenges to collecting institutions not only for the creation of suitable environmental conditions (for storage, exhibition, transport), but also for necessary or desirable preventive or remedial treatment. Ethical considerations (about what if anything should be done, and if so how) should be assessed in the context of the statutory moral right of living artists (and their estates for 70 years after death) to prevent derogatory treatment of their works. Professional gallery practitioners need to be able to interpret art law and ethics to make appropriate decisions, which invariably includes involving the living artist or their estate in addressing treatment challenges.

Ethical decision-making techniques have been developed in the modern era to help individuals and organisations make decisions that are sound and trusted by those affected by them. Typically there are five key steps taken to arrive at an ethical decision: identify an ethical issue; gather all relevant facts; evaluate alternative actions; eliminate unethical actions; decide the best ethical action and test its likely effect. Ideally decisions should be monitored and their effectiveness assessed to learn lessons for future decision-making. Professionals and institutions need not operate in isolation from ethical standards of the wider museum/gallery community: they are given substantial guidance and support in pursuing exemplary ethical practices by the International Council of Museums (ICOM).

Established in 1947, ICOM now has over 30,000 museums and professionals as members worldwide including ‘Fine Art Museums’. ICOM’s Code of Ethics for Museums was first published in 1986, has since had revisions, and is adopted and implemented by its institutional and individual members. The Code establishes eight key values and principles, which require museums to: preserve, interpret and promote the natural and cultural inheritance of humanity; hold collections in trust for the benefit of society and its development; hold primary evidence for establishing and furthering knowledge; provide opportunities for the appreciation, understanding and promotion of the natural and cultural heritage; hold resources to provide opportunities for other public services and benefits; work in close collaboration with the communities from which their collections originate as well as those they serve; operate in a legal manner; operate in a professional manner.

The art law and ethics course provided by Whitechapel Gallery and Art Fund is a welcome practical way of addressing the criticism sometimes made of gallery institutions: that they do not provide their professional people with sufficient training on legal requirements and ethical standards of the individual institution and the wider museum/gallery community.

© Henry Lydiate 2017

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.