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The Year in Review

International Legal Developments Year in Review: 2022

International Art and Cultural Heritage Law - International Legal Developments Year in Review: 2022

Lois Elizabeth Jane Wetzel, Pietro Bianchi, and Lauren Bursey


  • This article surveys some significant legal developments in international art and cultural heritage law during the calendar year 2022.
  • In April 2022, the Supreme Court of the United States addressed a crucial conflict of laws question in the long-running Holocaust restitution case concerning renowned impressionist painting by Camille Pissarro.
  • In August 2022, the U.S. District Court for the District of Columbia determined that it lacked subject-matter jurisdiction over claims brought by a consortium of Jewish art dealers against a Prussian Cultural Heritage Foundation, Stiftung Preussischer Kulturbesitz (SPK), for the return of relics and religious objects (collectively known as the Welfenschatz) sold under coercion to the Nazis in 1935.
International Art and Cultural Heritage Law  - International Legal Developments Year in Review: 2022
Ekaterina Nosenko via Getty Images

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This article surveys some significant legal developments in international art and cultural heritage law during the calendar year 2022.

I. Cassirer v. Thyssen-Bornemisza Collection Foundation

In April 2022, the Supreme Court of the United States addressed a crucial conflict of laws question in the long-running Holocaust restitution case concerning renowned impressionist painting Rue Saint-Honoré, après-midi, effet de pluie (Rue St. Honoré, Afternoon, Rain Effect) (Rue St. Honoré or the Painting) by Camille Pissarro. The Court resolved a circuit split as to what choice-of-law rule a federal court should apply in a suit raising non-federal claims brought under the Foreign Sovereign Immunities Act (FSIA).

The object of the case, Pissarro’s Rue St. Honoré, was purchased directly from Pissarro’s exclusive agent in 1900 by Paul Cassirer, a German Jew and devoted art collector. Paul’s nephew, Fritz Cassirer, inherited the painting, and, upon Fritz’s untimely death in 1926, it devolved to his wife, Lilly Karolina Cassirer, who resided in Berlin. In 1939, Lilly sought an exit visa to flee from Nazi-occupied Germany. As a condition for granting the visa, the Nazis made Lilly relinquish the Painting to an Aryan art dealer at a fraction of its true value. Lilly eventually ended up in the United States with her grandson, Claude Cassirer, who also fled from Nazi Germany after the war broke out. Lilly and Claude searched for the Painting after the war to no avail. In 1958, believing the Painting had been destroyed and having been legally declared its rightful owner, Lilly settled with the German government, expressly preserving her right to future recovery. Lilly died in 1962, naming Claude Cassirer as her successor in interest.

Contrary to Lilly and Claude’s beliefs, the Painting was not destroyed; it made its way to the United States after the war. After changing hands several times in the United States, the Painting ended up in the collection of industrialist tycoon, Baron Hans Heinrich Thyssen-Bornemisza (the Baron). In the 1990s, the Baron struck a lucrative deal with the Kingdom of Spain; the Baron agreed to sell to Spain the bulk of his collection (including Rue St. Honoré) and in turn, Spain agreed to create and sponsor a state-run entity that would house and maintain the collection, called the Thyssen-Bornemisza Collection Foundation (the Foundation). By 1992, the Foundation’s Madrid-based museum, Museo Thyssen-Bornemisza, was up and running and exhibiting the Painting publicly. It was not until 1999 that Claude Cassirer, then a resident of California, learned of the Painting’s whereabouts. In 2005, after several unsuccessful attempts to recover the Painting outside of court, Claude Cassirer sued Spain and the Foundation in the Federal District Court for the Central District of California, asserting jurisdiction under FSIA, and alleging that under California property law, the Cassirers owned the Painting and were entitled to its return.

Spain and the Foundation were unsuccessful in dismissing the claims on various procedural grounds related to jurisdiction, sovereign immunity, and the statute of limitations. Eventually, in 2015, the Foundation moved for summary judgment on the merits, claiming that under Spanish law, the Foundation owned the Painting. The Cassirers counter motioned for summary adjudication, seeking an order that California law, not Spanish law, governed the underlying claim. The lower courts held that Spanish law governed the ownership dispute and ultimately awarded title of the Painting to the Foundation thereunder.

The question of whether California law or Spanish law applied to the Cassirers’ claim for the return of the Painting was of critical consequence. The Cassirers brought their claim under California law. Like all common law states, California adheres to the general rule that a thief cannot pass good title to anyone, including a good faith purchaser. In other words, a stolen painting remains stolen no matter how many changes of clean hands it undergoes. The Foundation did not dispute the stolen nature of the Painting, but rather argued that, under Spanish law, the Foundation acquired ownership of the Painting, despite its checkered history. The doctrine of acquisitive prescription under Spanish law, which is essentially adverse possession applied to personal property, allows for a subsequent possessor of stolen goods to acquire good title if certain conditions are met. Accordingly, the two competing laws of liability were in direct conflict.

To determine whether California law or Spanish law applied, the district court first determined what choice-of-law rule to consult. The Ninth Circuit has consistently held, with minimal to no reasoning, that in cases predicated on FSIA jurisdiction, a court must consult federal common law to determine which choice-of-law rules to apply.

The Ninth Circuit’s resort to federal common law choice-of-law rules in FSIA cases directly contrasts Second, Fifth, Sixth, and D.C. Circuit precedent, all of which have uniformly held that the law of the forum state governs the choice-of-law analysis for state law claims brought under FSIA. In Oveissi v. Islamic Republic of Iran, the D.C. Circuit framed its decision to apply the forum state’s choice-of-law rules as a sort of statutory requirement. Some of the case law analogous to the Oveissi ruling follows a similar reasoning, generally concluding that the application of a forum state’s choice-of-law rules is prescribed by FSIA itself. Specifically, the Second, Fifth, Sixth, and D.C. Circuits cite section 1606 of FSIA, set out in more detail below, as the prescribing choice-of-law provision, and consistently find that, in similar cases, it calls for application of a forum state’s choice-of-law rules.

In puzzling contrast, the Ninth Circuit somewhat informally leaned toward the position that specific statutory guidance regarding choice-of-law questions in cases brought under FSIA was lacking: In the relevant Cassirer decision on choice-of-law issues, the lower courts did not discuss section 1606 of FSIA or explain its lack of applicability. In the absence of a statutory requirement and convinced that FSIA jurisdiction is expressly distinct from diversity jurisdiction, the lower courts followed their precedent that federal common law choice-of-law rules applied.

According to the Ninth Circuit (and only the Ninth Circuit) “‘federal common law [choice-of-law] follows the approach of the Restatement (Second) of Conflict of Laws.’” Section 6 of the Restatement (Second) of Conflict of Laws (the Restatement), flushed out by section 222 of the Restatement, uses a most significant relationship test, setting out several factors to consider and instructions to consult in order to determine which state has “the most significant relationship to the thing and the parties.”

Applying section 6 of the Restatement to the facts of Cassirer, the lower courts concluded that Spain had the most significant relationship to the Painting and the parties, and thus Spanish law governed the claims. The next several years of litigation consisted of dynamic disputes concerning the correct interpretation of Spanish law and whether the Painting’s acquisition by the Baron and the Foundation satisfied the necessary conditions provided by the doctrine of acquisitive prescription. In August 2020, the Ninth Circuit Court of Appeals denied the Cassirers’ request to revisit its 2017 holding on the choice-of-law issue and affirmed the district court’s award of title to the Foundation under Spanish law. The Supreme Court granted the Cassirers’ petition for writ of certiorari on the issue of what choice-of-law rule applied. Essentially, the Court needed to understand the meaning of section 1606 of FSIA, what the provision is intended to accomplish, and what it requires.

The Court grounded its determination in the plain language and discernable intent of FSIA. As the Court described, FSIA spells out “the suits against foreign sovereigns that American courts do, and do not, have power to decide.” If, under the terms of FSIA, an American court has the power to decide or, for example, is entitled to exercise jurisdiction over foreign sovereigns in a particular suit, the question then becomes to what extent the foreign sovereign or foreign instrumentality is liable for the alleged wrongdoing. Anticipating that very question, Congress crafted section 1606 of FSIA: “As to any claim for relief with respect to which a foreign state is not entitled to immunity . . ., the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.”

As a general matter, a party’s liability is determined by the substantive law that governs the dispute. If a foreign sovereign or instrumentality is supposed to be held liable to the same extent as a private individual under like circumstances, then the substantive law that governs a similar suit against private parties is the law to apply. In some cases, knowing what substantive law governs a dispute is straightforward. The analysis as to what substantive law governs is more involved when there are conflicting substantive laws at issue. In a conflicts case, courts must look to a jurisdiction’s choice-of-law rule to determine what substantive law of liability governs.

In that way, the Cassirer plaintiffs and amici argued that section 1606 of FSIA dictates the selection of a choice-of-law rule in cases brought under FSIA; the Court agreed, explaining that the choice-of-law rule to apply “must mirror the rule that would apply in a similar suit between private parties.” If section 1606 of FSIA demands that non-immune foreign sovereigns be subject to the same level of liability as a private party, which the Court made clear it does, then the only way to accomplish that is to ensure the applicable substantive law is determined the same way in both scenarios.

Accordingly, the Court then considered the hypothetical situation of a suit brought in California, against a private museum for return of art, where the claims asserted turn only on state or foreign property law. If the private suit were brought in federal court under diversity jurisdiction, the Court explained that “according to long-settled precedent,” the federal court would borrow the forum state’s, California’s, choice-of-law rule to determine the substantive law of liability.

In more pointed words, the Court explained that the Ninth Circuit went rogue when it decided to apply a federal choice-of-law rule to determine whether California or Spanish law governed the Cassirers’ suit. The Court walked through the ways in which the resort to federal common lawmaking likely created a mismatch between the Foundation’s liability and a private museum’s liability, frustrating the intent of section 1606 of FSIA.

The Court described the intent of section 1606 of FSIA as “clear” but noted that even if it were not, there is “scant justification for federal common lawmaking in this context.” Indeed, federal courts are not permitted to engage in federal common lawmaking as a matter of preference—if a federal court is going to displace a state-created rule with a judicially created federal rule, it must be “necessary to protect uniquely federal interests.” No such interests were threatened by applying California’s choice-of-law rule, the Court explained, dismissing defendant Foundation’s argument that the government’s interest in foreign relations was compromised. The long-standing practice of courts outside the Ninth Circuit in applying state choice-of-law rules in FSIA suits has never given rise to foreign relations concerns.

As the only mechanism by which to obtain jurisdiction over foreign sovereigns in U.S. courts, FSIA features prominently in suits to recover stolen art from foreign sovereigns or their instrumentalities. The Court’s decision elucidates how a court sitting in FSIA jurisdiction should resolve a conflict-of-law dispute, which is not uncommon in suits concerning moveable property given the variances in civil and common law. Section 1606 of FSIA demands that the law of liability be determined in the same manner it would be in a comparable private suit. In Cassirer, that meant the application of the forum state’s, California’s, choice-of-law rules to resolve the conflict-of-law dispute.

The impact of the Court’s decision on the Cassirer family’s ability to recover the painting is uncertain. The Court vacated the Ninth Circuit’s judgment and remanded the case for a renewed determination of what substantive law governs the claim, using California’s choice-of-law rule. The Cassirer plaintiffs have maintained that under California’s choice-of-law rule, California property law governs the suit; whether the lower courts agree remains to be seen.

II. Philipp v. Stiftung Preussischer Kulturbesitz (SPK)

In August 2022, the U.S. District Court for the District of Columbia determined that it lacked subject-matter jurisdiction over claims brought by a consortium of Jewish art dealers against a Prussian Cultural Heritage Foundation, Stiftung Preussischer Kulturbesitz (SPK), for the return of relics and religious objects (collectively known as the Welfenschatz) sold under coercion to the Nazis in 1935.

The Welfenschatz is a collection of medieval religious relics that was originally housed in Brunswick Cathedral, and dates primarily from the eleventh century to the fifteenth century. In 1929, the Welfenschatz was purchased by three Jewish-owned art dealer firms (together in their corporate capacity known as the Consortium), based in Frankfurt, Germany. Shortly after the Nazi party assumed control of Germany, it became interested in acquiring the Welfenschatz on behalf of Germany. Conversations regarding a sale commenced between the Consortium, the Prussian state (a political subdivision of Germany), and Dresdner Bank (acting as an intermediary). On June 14, 1935, the parties entered into a purchasing agreement that facilitated the sale of the Welfenschatz by the Consortium to the Prussian state. After acquiring the Welfenschatz, the Prussian state gifted the collection to Adolf Hitler. Eventually, the Welfenschatz ended up in the possession of the Prussian Cultural Heritage Foundation, or SPK, an entity created “for the purpose of succeeding all of Prussia’s rights in cultural property.” The Welfenschatz remains under SPK’s control, and the collection is currently housed at the Museum of Decorative Arts in Berlin.

After unsuccessfully seeking restitution in Germany, the heirs to the Consortium members (Plaintiffs) filed suit against SPK (Defendant) and the Federal Republic of Germany, alleging that the sale of the Welfenschatz was made under duress and for less than market value due to the Nazi persecution of Jews, and that the Plaintiffs were entitled to its return.

SPK moved to dismiss Plaintiffs’ claim on grounds of foreign sovereign immunity. To establish the court’s subject-matter jurisdiction, Plaintiffs invoked the expropriation exception to sovereign immunity, which strips a foreign state and a foreign instrumentality of jurisdictional immunity for claims alleging that property was “taken in violation of international law.” SPK argued that the expropriation exception was not available to Plaintiffs by application of the domestic takings rule, which stands for the proposition that a foreign sovereign’s expropriation of its own citizens’ property is not a violation of international law. SPK contended that the domestic takings rule applied to the Plaintiffs’ claims because the Consortium and individual art dealer firms were German corporate entities, the individual owners of the Consortium were German nationals, and the taking was done by a political subdivision of Germany.

Plaintiffs argued that the domestic takings rule was inapplicable because the sale of the Welfenschatz was part of the Nazi Germany genocide against the Jewish people. In light of the then-recent Court of Appeals for the D.C. Circuit’s ruling in Simon v. Republic of Hungary, Plaintiffs contended that the underlying genocide was the relevant international law violation and thus, the domestic takings rule was not pertinent and the Consortium member’s nationality was irrelevant. The lower courts agreed with Plaintiffs and the case ultimately went to the United States Supreme Court on the issue of whether the domestic takings rule applied given the Plaintiffs’ invocation of the expropriation exception to establish jurisdiction.

In early 2021, the Supreme Court reasoned that the domestic takings rule was relevant to the Plaintiffs’ claims. The Court rejected a broader reading of FSIA’s expropriation exception, explaining that the “international law” to which it refers is limited to the narrow doctrine of international law governing property rights, and does not incorporate general human rights norms like the law of genocide. The Court then went on to clarify that the international law governing property rights recognizes the domestic takings rule, meaning that such a limitation is read into the expropriation exception. Therefore, the nationality of the Consortium members was of the utmost importance—the expropriation exception would only permit jurisdiction if the sale of the Welfenschatz could be characterized as the confiscation of property of foreigners. Accordingly, the Court vacated the D.C. Circuit’s judgment, and the case was remanded for further proceedings. Specifically, the Court instructed the District Court via the Court of Appeals to determine: (1) whether the “sale of the Welfenschatz is not subject to the domestic takings rule because the Consortium members were not German nationals at the time of the transaction” and (2) whether that argument was adequately preserved by Plaintiffs in the District Court.

The District Court began with an explanation of FSIA, noting that jurisdiction over a foreign state or instrumentality can only be obtained if one of the statutory exceptions to immunity applies. Because the Supreme Court ruled that the expropriation exception was limited by the domestic takings rule, the only way Plaintiffs would be able to meet the jurisdictional requirements was if they preserved the argument challenging the basis for the domestic takings rule. The District Court surveyed the Plaintiffs’ pleadings and found that the Plaintiffs failed to preserve any argument regarding an exception to the domestic takings rule based on the nationality of the Consortium members. The District Court explained that Plaintiffs had, to their detriment, focused their contentions on the claim of genocide and scant attention was given to opposing Defendant’s claims that the art dealer firms were German corporate entities. Further, Plaintiffs did not assert any fleshed out argument that the individual owners were foreign nationals or were stateless.

Despite finding that the argument had not been preserved and because the remand order instructed the District Court to consider whether the Consortium members were not German nationals at the time of the transaction, the District Court assumed in arguendo that Plaintiffs did preserve their argument and assessed whether Plaintiffs established an exception to the domestic takings rule on those grounds. The District Court explained that to establish an exception, the Plaintiffs needed to allege facts establishing that the sale was not a domestic taking, and also demonstrate that the exception claimed is clearly established customary international law.

Plaintiffs argued that the Consortium members lost their German nationality, with the exception of two Consortium members who Plaintiffs contended were Dutch, and became stateless. This contention presented its own dilemma of whether customary international law of takings is violated when a state takes property from a stateless person. The D.C. Circuit noted the existence of unfavorable precedent from the Court of Appeals for the Eleventh Circuit on that issue while acknowledging that it had not yet taken a position. Even still, the District Court analyzed whether Plaintiffs had demonstrated that the Consortium members lost their German nationality such that they had become stateless at the time of sale.

Because possession of nationality is determined by the laws of the state to which an individual is a member, Plaintiffs needed to demonstrate that the Consortium members had lost their German nationality under German law. Plaintiffs argued that to be a German national in Nazi Germany, individuals could not be Jewish (by the time of sale). They cited three paragraphs from their Complaint to support their argument: (1) stating Mein Kampf indicated that Hitler believed there was no place in the world for Jewish people; (2) noting an amendment to the Weimar Constitution giving Hitler the power to enact laws without the legislature; and (3) asserting that “[t]hrough the collective humiliation, deprivation of rights, robbery, and murder of Jews as a population, they were officially no longer considered German.” While the District Court acknowledged the horror of genocidal programs, it sided with Defendant in that genocidal programs do not de facto, strip individuals of nationality. This holding is echoed in similar cases that were decided in the wake of the Supreme Court’s 2021 decision in Philipp III. For example, in Toren v. Federal Republic of Germany, the Court disagreed with plaintiff’s contention that the “Nazi regime’s broader campaign of persecution against German Jews” rendered plaintiff’s ancestor, amongst other German Jews, stateless. There, the Court held the expropriation exception does not encompass the question of whether a person is rendered stateless by virtue of that state’s conduct. Similarly, in Heller v. Republic of Hungary, the descendants of a family of Hungarian Jews who all fled the country in 1939, leaving behind homes, places of business, and possessions, asserted that their ancestors had become de facto stateless when Hungary deported or sent its Jewish residents to concentration camps and expropriated their property as a part of its de-Jewification program. The Court declined to consider that assertion relevant though, holding that “the FSIA’s expropriation exception cannot reach expropriations carried out against even badly treated citizens regardless of what labels might be applied to aspects of a defendant’s genocidal conduct.”

The Court also considered Plaintiffs’ other assertion that two Consortium members, Rosenberg and Rosenbaum, lost their German nationality and acquired Dutch nationality by the sale of Welfenschatz. Plaintiffs argued that Rosenberg and Rosenbaum had emigrated from Germany to the Netherlands, and emigration implies a renunciation of a former nationality. The Court found that Plaintiffs’ mere assertion that emigration could be equated with a renunciation of nationality was insufficient. The Court also pointed out that the Plaintiffs were inconsistent in their pleadings as to when exactly the Consortium members lost German nationality.

The Court found that Plaintiffs had not pleaded actual facts showing a loss of German nationality by operation of German law. The Court explained that Plaintiffs were required to base their arguments in “judgments and opinions of national and international judicial bodies, scholarly writings, and unchallenged governmental pronouncements that undertake to state a rule of international law” to meet their burden of proof. In this case, Plaintiffs’ assertions fell short of that burden because they failed to point to any German laws indicating that the Consortium members were denationalized before any expropriation via the sale occurred.

Other recent case law demonstrates that this is not an impossible burden to satisfy. In Ambar v. Federal Republic of Germany, Germany contended that the expropriation exception was not a valid jurisdictional basis because the person from whom Germany confiscated a building was a German national, and thus the domestic takings rule applied. In Ambar, the plaintiffs met the burden of proof to overcome the domestic takings challenge by pleading facts related to specific German laws denationalizing Jewish nationals that were in effect at the time of the taking.

Ultimately, the district court found that “the majority of Plaintiffs’ assertions” in Phillip IV were “general in nature” and “tangential at best in providing information about the Consortium members’ alleged loss of German nationality by the time of the sale.” Thus, the district court resolved both issues in favor of Defendant SPK and dismissed the case, as the sale of the Welfenschatz fell within the domestic takings rule, and thus was not within the scope of the expropriation exception. Although the Plaintiffs have appealed, the district court’s most recent ruling should not be taken lightly as it fleshes out the consequences of the Supreme Court’s 2021 ruling as to the limited nature of the expropriation exception and the application of the domestic takings rule to claims seeking jurisdiction thereunder.

III. AAMD Deaccessioning Policy Changes and a Broader Discussion about Museum Financials

Soup thrown on paintings. Union strikes. Cuts to public funding. There can be little doubt that internationally, museums are in a crisis, all stemming from financial issues, post-pandemic challenges, and the broader question about museum operability in the twenty-first century.

At the end of September 2022, the Association of Art Museum Directors (AAMD) announced that its members had voted to narrowly change the approved use of funds from deaccessioned art. The new rule, section 25 of the Professional Practices, allows for these funds to be used not only for the acquisition of works of art, but also for “direct care of objects in a museum’s collection.” Direct care is now defined as “the direct costs associated with the storage or preservation of works of art,” including conservation, restoration, and materials required for storage. The section further clarifies that funds from art disposal may (still) not be used for museum operations or capital expenses, and direct care does not include staff salaries or costs for temporary exhibitions. This change brings the AAMD in line with the policies of the American Alliance of Museums (AAM) and the Financial Accounting Standards Board (FASB), but provides a clear definition of “direct care” where the other organizations do not. In the United Kingdom, the next largest country for art institutions, a similar rule exists regarding the disposal of items in a museum collection, which Arts Council England classifies as “unethical sales.” But the situation outside of the United States is slightly different as many museums hold their collections in the public domain. Nevertheless, the principle of a collection as a cultural, not financial, asset remains the same.

The amended deaccessioning rule follows the AAMD’s temporary pandemic guidelines, which were introduced in April 2020 and have since been repealed. While the temporary guidelines allowed for funds to be used for “direct care,” the AAMD did not provide a definition of the term, so museums approached the change with greater latitude in a time of upheaval. The public and museum staff were notably distressed when many museum workers were furloughed or made redundant during the pandemic, especially museums like the Metropolitan Museum of Art (The Met), which holds an endowment of three billion dollars. These endowments are perceived by the public, like many museum holdings, to be a large sum of money stashed away gathering dust, especially because a majority of the funds are earmarked for certain projects or restricted in how they are spent. The Met alleged a loss of $150 million in revenue when it was forced to close for five months. According to a survey from the AAM, sixteen percent of museums believed they faced a significant risk of permanent closure without additional financial relief.

The pandemic and subsequent inflation may have been the catalyst for employee strikes at major museums this past year. In September 2022, workers at the Philadelphia Museum of Art went on an indefinite strike after two years of failed negotiations, during which they demanded higher wages and health care benefits. The union president explained that many museum employees work two jobs, which he felt “is pretty unbelievable for an institution with a $60 million a year budget and a $600 million endowment.” In the spring, members of the Whitney Museum of American Art’s union staged demonstrations at the museum’s annual gala and Studio Party and at the opening of the Whitney Biennial. The union once again pushed for improved compensation and higher standards for job security and health and safety. A member of the union and exhibition coordinator stated that “[t]he museum needs to invest in Whitney staff as much as it invests in its exhibitions and collections.” Unfortunately, this is not a strictly American issue, as evidenced by the sharp increase in U.K. museum workers who joined PCS Culture Group—its membership increased by 20 percent between 2020 and 2022. The heritage sector trade union found that one in ten museum jobs paid £9.50 an hour or less and that the median salary for an assistant curator is £11,000 below the national median salary for 2021.

The issue of “contested heritage,” initially sparked by the American Black Lives Matter movement, and that calls for statutes of Confederate generals to be torn down, became a tipping point for U.K. museum professionals, as well. The U.K Government threatened to withhold funding if museums removed objects that “arguably, glorified slavery and imperialism,” which concerned museum professionals “who see their desire to properly present and curate collections linked to transparent threats to job security, funding and livelihoods.” Such threats resulted in multiple demonstrations, including outside a Victoria and Albert Museum fundraiser in June 2022.

Outside of the United States, where museums are usually provided with funding from public sources, funding has fallen. Between 2010 and 2014, funding from the U.K. Department for Culture, Media and Sport was cut by 15 percent and continues to move in a downward trajectory. Arts Council England announced this year that it is cutting funding for London-based arts institutions in favor of a policy to reallocate funding outside of the capital.

Museums around the world, despite some public funding, nevertheless accept corporate donations and may incur in reputational damage. Indeed, philanthropy is the main method of funding American cultural institutions and the protests outside of galas and fundraising events are no coincidence. Museums take advantage of these donors not solely by accepting their cheques, but by flipping their donated art. Indeed, when artworks are donated but not accessioned, museums can sell them after three years without jeopardizing the donor’s charitable deduction, one of the main reasons for the donation, and without triggering sanctions from the AAMD. Museums also accept funding and support from large corporations, including oil companies and those that harm the environment. These well-known partnerships were heavily protested over the summer and fall by activists from groups including Just Stop Oil and Extinction Rebellion, who targeted museums by throwing soup on art, gluing themselves to paintings, and other acts of destruction, in the name of climate awareness. Unfortunately, a more effective means of impacting the climate would be advocating for fossil-fuel divestment of an institution’s invested endowment. Like individuals, museums invest in public equities and index funds, which directly connects museums with companies dealing in fossil fuels, tobacco, weapons, and private prisons. In June 2022, Upstart Co-Lab released a report after surveying sixty-one independent museums in the United States with a combined $10 billion in endowment assets. Upstart Co-Lab reported that only 31 percent of those museums currently have impact investment strategies, and only 35 percent have women or BIPOC fund managers in charge of the endowments. While most museums are attempting to showcase more equitable artists and attract diverse audiences, their endowments and investments are not yet contributing to the same mission.

As the joint statement from a group of key museum sector groups in the U.K. states, museum collections are “founded on civic conviction, public investment, and the goodwill and support of donors,” and are “primarily held in trust as cultural, not financial, assets.” While this laudable statement may be true, those who work in the museum sector are demonstrating that museums cannot continue to divorce their collection from the people whose job is to care for that collection, nor can the museum continue to advocate for itself as a progressive place of learning and engagement for the general public, often with programming and exhibitions on current issues, while avoiding the issues within its own institution. Finances and the sustainability of the museum as an institution are intertwined, and 2022 has shown the cracks in the system. Larger questions remain about society’s commitment to preserve its culture, the responsibility that comes with that, and how we value and look after the people who take on such responsibility.