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Case Review: The Barnes Foundation can now loan art (2023)

October 13, 2023

By Alexandra Even

Contrary to the will left by its founder, a judge ruled in favor of a new loan policy for the Barnes Foundation in July of this year. The order represents another step in a string of re-interpretations of the will left by Dr. Albert Barnes. Since his death in 1951, the Barnes Foundation has sought court intervention when the Board felt the rules set out by the founder were too restrictive and were preventing them from running an effective organization. The changes that followed resulted in significant controversy in the city of Philadelphia from those who championed Dr. Barnes’s method.

Genius collector or hostile outsider?

To understand the Barnes Foundation, one must first understand Dr. Barnes, as tall a task as that may be. His life was a quintessential American success story: he grew up poor, bettered himself with his intelligence and keen business sense, and amassed a large fortune. At the same time, Barnes was deeply complicated, stubborn, and prideful. He spent his life making enemies with the Philadelphia elite and eschewing the standards set by the art world all while establishing a bastion of art education and philanthropy.^{^[1]}

Albert Barnes was born to working class parents in the Kensington neighborhood of Philadelphia in 1872. Encouraged by his mother to excel in school, he put himself through college by tutoring, boxing, and playing semi-professional baseball.^{^[2]} He attended the University of Pennsylvania Medical School and later developed Argyrol, a silver nitrate antiseptic used to treat newborn infant blindness. This product made him a very rich man and he used his fortune to begin collecting art.

(Image Credit: Dr. Albert C. Barnes, c. 1946. Photograph by Angelo Pinto. Photograph Collection, Barnes Foundation Archives)

Dr. Barnes’ business savvy translated well to the art market, and his collection grew to 4,000 objects, including 900 paintings. Henri Matisse once called the Barnes Foundation “the only sane place to see art in America.” ^{^[3]} Said to be the largest collection of impressionist art outside of Paris, it holds 181 Renoirs, 69 Cézannes, 59 Matisses, 46 Picassos, and 7 van Goghs. Barnes personally and uniquely arranged all the art together, not by origin or period, but by shared qualities between the diverse pieces. The collection as a whole is valued at approximately $25 billion dollars.^{^[4]}

The collection was housed in a small building in Merion, Pennsylvania, about five miles from the heart of Philadelphia. Barnes’ constant focus was often on education, and both the Foundation and the classes held at his factories exhibited a deep commitment to the education of “every-day people.” ^{^[5]} The foundation was largely only open to those who were attending classes or who were granted permission to visit via letter.^{^[6]} Barnes believed that museums served as “a pedestal upon which a clique of socialites pose as patrons of the arts” and thus never thought of his foundation as a museum, only as an educational institution.^{^[7]}

The elite of Philadelphia disliked Dr. Barnes, and Dr. Barnes loathed Philadelphia’s elite. Barnes quarreled with the Philadelphia Museum of Art, its director, and Walter Annenberg, owner of the Philadelphia Inquirer. ^{^[8]} From the museums to the art critics in the newspapers, Barnes’ taste in art was bashed as too modern and avant-garde. Dr. Barnes, in turn, referred to Philadelphia as “a depressing intellectual slum” and the Philadelphia Museum of Art as a “house of artistic and intellectual prostitution.” ^{^[9]} Dr. Barnes would mince words for no man, especially when it came to a subject as personal as his art.

Where there’s a will…

To protect his art from the art world he so hated, Barnes put a number of restrictions in his Indenture of Trust, first drafted in 1922. The document contains a number of unusual and specific provisions that reflect Barnes’ philosophy and strong opinions.

The will first lays out the corporate purpose for the Barnes Foundation: “the promotion of the advancement of education and the appreciation of the fine arts.”^{^[10]} This is reiterated several times throughout the document, with Barnes taking pains to ensure the, “building is to be used as classrooms,” solely as a place for instruction in art appreciation.^{^[11]} Barnes further emphasized that there would be no special treatment, writing that “the purpose of this gift is democratic and educational in the true meaning of those words.” He explicitly banned the use of the galleries as a space for high societal functions.^{^[12]}

Barnes established a plan for paying employees and investment of the endowment, but unfortunately neither of these were lax enough to withstand the test of time.^{^[13]} The salaries for employees had no mechanism to adjust for inflation. The endowment could only be invested in federal, state, and municipal bonds, which would lead to great financial problems after his death.

Barnes even laid out an opening and closing schedule for his foundation after his death. The gallery was to be open five days a week but “solely and exclusively for educational purposes – to students and instructors of institutions which conduct courses in art and art appreciation.” ^{^[14]} Each Saturday from 10-4, the foundation would be open to the public, with special attention given to seeing that “plain people” or “men and women who gain their livelihood by daily toil” would gain free entry.

Barnes also wished that his art, however specially arranged at the time of his death, would remain frozen in time. The Indenture of Trust indicates that “all the paintings shall remain in exactly the places they are at the time of the death.”^{^[15]} The collection would close at Barnes’ death and no further purchases, bequests, or additions would be allowed.^{^[16]} The gallery was also not to be used for an exhibition of paintings not already property of the Barnes, thus banning traveling exhibitions.^{^[17]} Relevant to recent events, Barnes also wrote that “no picture belonging to the collection shall ever be loaned, sold, or otherwise disposed.”^{^[18]}

Chipping away

Barnes died in 1951 in a tragic car accident. It wasn’t long after that Philadelphia tried to get its hands on his collection, just as he had feared. Just seven months after he died, his old foe Walter Annenberg sued to demand the collection be open to the public.^{^[19]} This lawsuit failed, but the Barnes Foundation was later forced to open its doors to the public for at least two days a week by appointment in 1958.^{^[20]} In the years that followed, the Barnes Board sought to follow his will to a fault, even when his financial planning for the endowment left the priceless collection with a pittance for upkeep.

Fast-forward to 2023 and a number of the provisions of the will have since been violated. In 1992, the Barnes collection went on a 12-stop international tour, bringing in some much needed cash to repair the Merion building but ultimately also brought in massive crowds wanting to see the newly world-renowned collection.^{^[21]} Neither the neighborhood in Merion nor the building itself could keep up with the numbers of visitors that were now lining up at the gates. Most of these visitors were not there to attend classes and had not obtained specific permission from the Board, as was required by the will. The fact that the Barnes was acting like a public museum at all, rather than an educational gallery space, violated plenty of the will’s provisions.

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In the late 90s, the Barnes Foundation was in dire financial straits and was subsequently bailed out in what was essentially a nonprofit corporate takeover by several Philadelphia-area foundations (most notably the Annenberg Foundation).^{^[22]} In 2002, with a new composition and new goals, the Board successfully petitioned the court to change the terms of the indenture to allow the collection to be moved to a new building in downtown Philadelphia.^{^[23]}

The move sparked a vigorous and heated debate on both sides. Friends of the Barnes decried the move as violating a dead man’s wishes to keep his collection a small educational gallery. The Philadelphia charities responsible for the move argued it would allow even more education for hundreds of thousands more visitors a year. Politicians in Philadelphia were elated for the boost in its tourist economy and solidifying the city’s place as a center for fine art. But despite the controversy it caused, the move went ahead, and in 2012, the new Barnes opened in Philadelphia.

To the Barnes Foundation’s credit, while the collection is now housed in a modern glass building, they took great pains to carefully reproduce the layout of the original building as well as the arrangements that Dr. Barnes created in his lifetime.

Today: The Barnes’ new lending policy

This summer, a judge granted the Barnes Foundation yet another change to the Indenture of Trust, now written over one hundred years ago. The Barnes will now be allowed to lend works of art from its collection to other institutions or temporarily relocate the art elsewhere in the museum.^{^[24]} This change was approved by the court in keeping with the corporate purpose of the Barnes Foundation as originally laid out in the will: promoting “the advancement of education and the appreciation of fine arts.”^{^[25]}

The loan policy limits the lending or moving of the works, only allowing a loan if the exhibition makes an important contribution to scholarship, if the painting plays an important role in the exhibition, if it does not disrupt the educational programs at the Barnes, and if it is in stable condition to travel.^{^[26]} No more than 20 paintings are allowed to be out of the Foundation simultaneously and for no more than 12 months.^{^[27]}

The Barnes Foundation sees this new policy as a way to advance Dr. Barnes’ purpose in expanding their educational reach as well as their relevancy, calling it a “Barnes plus approach.” ^{^[28]} The attorney general’s office, responsible for overseeing nonprofits, took no issue in the policy change.^{^[29]} Richard Fuedale, an attorney who previously contested the Barnes’ move to Philadelphia, attempted to block the new policy, but the court ultimately ruled that he did not have standing to do so.^{^[30]}

Conclusion

The reinterpretations allowed by the court have allowed the Barnes Foundation to adapt to modern times, overcome their financial problems, and establish themselves as a world class museum. The new location has been able to reach hundreds of thousands more visitors than it otherwise could have in Merion, especially in its outreach to inner-city youth. Some of this, Dr. Barnes would no doubt detest. Many of the changes represent the polar opposite of what he laid out in his will. But other parts – a focus on education and access to people from all walks of life – are accomplished by the move and the foundation’s various new programs.

Researching for this article left me with a lot of lingering questions, questions that are incredibly difficult to answer for certain given the central figure has long been dead. Should a man who died over 60 years ago be able to control our actions today? Isn’t it better now that the art in the Barnes Foundation is seen by millions of people, rather than a small group of students? Or is that going against the very thesis of the Barnes Foundation and the philosophy of its founder? Most importantly, what would Barnes think of all of this? People have very strong opinions on the answer to these questions and no doubt the debate will continue on long after we are all dead as well.

Sources

James Panero, Outsmarting Albert Barnes, Philanthropy Roundtable (Summer 2011) https://www.philanthropyroundtable.org/magazine/outsmarting-albert-barnes/ ↑
Id. ↑
Friends of the Barnes Foundation, http://www.barnesfriends.org/index.html ↑
James Panero, Outsmarting Albert Barnes, Philanthropy Roundtable (Summer 2011) https://www.philanthropyroundtable.org/magazine/outsmarting-albert-barnes/ ↑
“Biographical Note,” Albert C. Barnes Correspondence, The Barnes Foundation Archives (2012), https://www.barnesfoundation.org/whats-on/collection/library-archives/finding-aids. ↑
James Panero, Outsmarting Albert Barnes, Philanthropy Roundtable (Summer 2011) https://www.philanthropyroundtable.org/magazine/outsmarting-albert-barnes/, (writing that of these he was known to reject the rich and famous and accept factory workers and struggling artists). ↑
Id. ↑
See Richard Lacayo, The Hot Doc – The Art of the Steal, Time (Sept 28, 2009), https://entertainment.time.com/2009/09/28/the-hot-doc-the-art-of-the-steal/ (explaining that Barnes’ feud with Annenberg was fueled both by their political disagreements (Dr. Barnes was a New Deal democrat and Annenberg a staunch Republican) and their shared interest in art collecting turned competitive). ↑
Id. ↑
The Barnes Foundation Bylaws, Article IX, Section 2, http://www.barneswatch.org/main_bylaws.html. ↑
Id. at Paragraphs 13, 34. ↑
Id. at Paragraph 33 (this provision also allowed that any resident of Pennsylvania could stop the events by lawsuit and the Barnes Foundation would pay all legal expenses). ↑
Id. ↑
Id. at Paragraph 30. ↑
Id. at Paragraph 13. ↑
Id. at Paragraph 9. ↑
Id. at Paragraph 34. ↑
Id. at Paragraph 10. ↑
James Panero, Outsmarting Albert Barnes, Philanthropy Roundtable (Summer 2011) https://www.philanthropyroundtable.org/magazine/outsmarting-albert-barnes/ ↑
Id. ↑
Id. ↑
See id. (indicating that this takeover was aided by the Attorney General and the Governor of Pennsylvania offering Lincoln University and the Barnes massive amounts of money if they diluted the Board with more seats). ↑
Id. ↑
Decree, Docket No. 1958-X0788, Court of Common Pleas of Montgomery County, PA Orphans’ Court Division, (July 21, 2023) https://drive.google.com/file/d/1bzsCblHNlGMJtXKb3QEuoEbsFuadnd_n/view?usp=sharing. ↑
Id. ↑
Id. at Exhibit A. ↑
Id. at Exhibit A. ↑
Ted Loos, “Barnes Foundation Loosens its Straightjacket,” The New York Times (August 2023), https://www.nytimes.com/2023/08/09/arts/design/barnes-foundation-loan-painting-decision.html ↑
Id. ↑
In re: Barnes Foundation, No. 1958-X0788, Court of Common Pleas of Montgomery County, PA Orphans’ Court Division, (July 24, 2023) https://drive.google.com/file/d/1DNBlmASqTjB8KGjeegdtlXlYnYuMH2vv/view?usp=sharing. ↑

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.