WYWH: Legal Issues in Museum Administration 2021
By Center for Art Law.
On March 11th and 12th, 2021, the American Legal Institute (“ALI”) webcasted the forty-ninth annual Legal Issues in Museum Administration (“LIMA”) conference, on the digital age, working remotely, and legal updates throughout the past year.
Day 1: Our New Relationship with Technology
After welcoming remarks by Judith Leonard, General Counsel of the Smithsonian Institute, the day started with the panel on technological developments in the museum.
Panel 1. Exhibits in 2021: Engaging Audience through New Technologies
The first panelist, M. Thérèse (“Terry”) Vento, General Counsel of the Pérez Art Museum Miami, discussed the effect of COVID-19 on local and virtual experiences, outdoor accessibility, and augmented reality. She prefaced her talk by outlining the adaptability of museums, switching to YouTube Live, Instagram, Facebook Live, and virtual interviews and performances for virtual visitor engagement and fundraising throughout the pandemic. Another way museums continued to adapt, particularly throughout the warmer months, was focusing on outdoor sculpture gardens. These gardens offered visitor accessibility and social distancing even while museums remained closed.
The later half of the talk shifted to engaging audiences through Augmented Reality (“AR”) exhibitions. Vento praised the use of AR exhibitions, which “easily accommodate social distancing, requir[e] no touching of equipment [other than your own personal device], and can be installed indoors and/or outdoors ― [AR] is exceptionally apropos.” Vento ended her presentation by outlining legal considerations for AR, including notice and consent language, disclaimers in AR app’s Terms and Conditions agreements, work for hire agreements with app developers and artists, and guerilla hacking. Guerilla hacking is the unsanctioned “process of artists [and web developers] inserting their work, virtually, on the museum walls.” Vento closed her discussion by mentioning a few unsanctioned AR uses at the Metropolitan Museum of Art, Isabella Stewart Gardner Museum, and Museum of Modern Art, and the need for museums to balance the new audiences AR brings to the museum against the potential intellectual property, trespassing, libel, and visitor safety and Wi-Fi protection concerns.
Michael Costanzo, the General Counsel at the California Academy of Sciences, continued the conversation in emerging legal issues from new technologies on and off the museum floor. The main points of discussion included contracting and licensing of virtual event products, artificial intelligence in virtual and interactive exhibitions, and the use of real-time content. Costanzo outlined liability concerns arising from virtual reality (“VR”), including fall risks, disorientation, motion sickness, and minimum age restrictions associated with the technology. The California Academy of Sciences utilizes signed waivers to ensure visitors use the VR hardware according to the manufacturer’s instructions and ensure the museum remains protected.
Costanzo acknowledged the museum’s shift to online, real-time content. This content includes social media posts, museum webcasts, and virtual events. Museum legal departments need to be cognizant of the ability to remove webcam footage from the internet quickly if an incident arises or think about saving webcam footage as these cameras also serve as unintentional security cameras. Relating to virtual events, Costanzo stressed the importance of licensing music and video content with performance rights organizations or the artists and musicians prior to the event.
Pamela Chen, General Counsel of the Museum of Science and Industry, Chicago, concluded the first panel with a presentation on travelling exhibits, predominantly focusing on the legal and practical considerations with force majeure, COVD-19 safety concerns in the installation and de-installation processes, and modifications for compliance with local and state health orders. State-mandated closures affected traveling exhibit rental agreements, often leading to attorneys calling upon force majeure clauses to excuse or delay performance. Chen clarified that COVID-19, alone, might not permit the use of a force majeure clause. The government restrictions making the exhibition illegal to perform does allow for the use of a force majeure clause. She also stressed that the liability associated with indemnification clauses and insurance coverage covering possible injuries from the moving process should fall on the lender. Chen concluded by discussing the challenges of remote installation and deinstallation processes, including remotely training local installation and deinstallation teams, the health and safety of the moving crew and visitors, and adapting traveling exhibits to have limited touch experiences.
Panel 2. Cybersecurity Incidents and Data Privacy: What Every Museum Administrator and In-House Lawyer Should Know
Alfred (“Al’) Saikali, Chair of Privacy and Data Security Practice at Shook, Hardy & Bacon, began the second panel overviewing applicable privacy laws, emphasizing that there is no comprehensive federal privacy law, but instead various state laws. The California Consumer Privacy Act (“CCPA”), which mimics the European Union’s General Data Protection Regulations (“GDPR”), restricts companies the most, and thus many companies look towards the CCPA to ensure legality in all fifty states.
Danee Gaines Adams, the Smithsonian Institute’s Privacy Office, continued the discussion on creating compliance checklists and developing both privacy and privacy breach policies. The Smithsonian’s process took roughly nine months, with the preceding three months spent planning. Adams identified the most important factors throughout the checklist and policy development stages as: defining staff responsibilities, conducting a data inventory, performing privacy risk assessments, preparing privacy notices, and building privacy into relationships with third parties among.
Panel 3. Legislative and Regulatory Update for Museum Professionals
Barry Szczensy, Directory of Government Relations and Public Policy at the American Alliance of Museums, and Mike J. Cooney, Partner at Nixon Peabody LLP, updated attendees on the legislative and regulatory happenings on Capitol Hill. Szczensy started by outlining various COVID-19 relief legislations, including the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Consolidated Appropriations Act, and American Rescue Plan Act. The CARES Act includes a $200 million split amongst the National Endowment for the Arts (“NEA”), National Endowment for the Humanities (“NEH”), and the Institute for Museum and Library Services (“IMLS”). The Consolidated Appropriations Act provides forgivable loans for nonprofit museums and $15 billion in grants for Shuttered Venue Operators. The Internal Revenue Service published Notice 2021-20 to guide to businesses, including museums, on the employee retention credits provided under both acts. The American Rescue Plan Act provided $13 trillion in relief funding, including an additional $1.25 billion for Shuttered Venue Operators, funds for after-school and summer learning programs (museums can apply for both), and more allocated funds for the NEA, NEH, and IMLS. Noted appropriations updates included $167.5 million for both the NEA and NEH (increase of $5.25 million each), $40.5 million for the Office of Museum Services/IMLS (increase of $2 million), $144.2 million for the Historic Preservation Fund (increase of $8.3 million), and approval for the Smithsonian National Museum of the American Latino and the Smithsonian American Women’s History Museum.
Panel 4. Practicing Remotely and Ethically: Do’s and Don’ts for In-House and Outside Counsel
Amelia Sargent, a Partner at Willenken LLP, closed the day by presenting, “how the Model Rules can empower and inspire us to meet the needs of remote work.” She prefaced the presentation by recognizing the long-term challenges in managing a workforce in crisis, including stress, anxiety, burnout, widespread lack of productivity, and PTSD. Sargent identified the four core ethical challenges of remote work: (1) Client-Service challenge, (2) Confidentiality-Technology challenge, (3) Leadership-Remoteness challenge, and (4) Kindness challenge. Using Lawyer Cat as an example, Sargent reminded everyone that lawyers’ ethical duties can help: “Our ethical duties remind us of our profession’s ideals in service to administration of justice. Our job is to uphold justice. Support the rule of law.”
Day 2: Responding to a Shifting Landscape
Panel 5. Employment Law Update for Museum Professionals
Speakers Jessica Kastin, Attorney and pattern at Jones Day New York, and Elena J. Voss, Associate General Counsel at the Met, kicked off Friday’s seminars with an in-depth look at important legal questions and possibilities surrounding employment in a world still gripped by the COVID-19 pandemic yet looking forward to a time when restrictions lessen and the new and old normal will come to collide. The discussion first addressed vaccination and the workplace, looking to questions museums and like organizations would have to answer about when and how they could require or encourage their employees to get vaccinated. Kastin and Voss illustrated the delicate balance between legal dangers such as avoiding prohibited disability inquiries under the ADA when approaching potentially requiring vaccinations or asking employees to confirm whether or not they’ve been vaccinated. Beyond vaccines, Kastin and Voss also turned to how employers could build flexible workplaces as more employees begin returning to in-person work while others remain remote, particularly in museums where varying positions will present vastly different practical benefits and limitations to working in the building versus at home. Looking more closely at the activities and influence of employees, the seminar concluded with discussion over changes the Biden administration may bring to employment law and its landscape, particularly its friendlier stance toward unions than that of the Trump administration, and how museums as government institutions must address rules and regulations governing the content and locales of employee speech.
Panel 6. Rethinking Revenue: Adding Value in Tough Times
Friday’s second lecture was presented by Laura Damerville, Assistant General Counsel at the Smithsonian Institution, and John Sare, a Partner at Patterson Belknap, considered a number of avenues open to Museums during and post-covid to keep sufficient revenue coming in while many doors remain closed and events stay canceled. A good portion of the lecture looked to museum memberships, covering the common facets of membership programs and the portions of said programs that can be disregarded for tax purposes. Damerville and Sare also gave a great amount of insight concerning how museums might adjust their membership programs to provide ample and exciting benefits to members even when they can’t come through the doors at the museums, both ensuring the museum is living up to the promises of its programs and keeping members and donors satisfied and happy to continue supporting the institution. The lecture covered a number of other possible revenue streams and related concerns that have arisen during these unprecedented times, including the realities of the AAMD’s moratorium on punitive action for deaccessioning works and how it can be effectively used to efficiently secure funds, and how to work with donors and agreements for gifts to better access restricted funds for important purposes. Overall Damerville and Sare’s lecture explored many ways museums can creatively and effectively maneuver through existing structures and adapt to our altered times to maintain finances and ensure their offerings remain impactful and engaging.
Panel 7. Litigation Update for Museum Professionals
Stephen Clark, Vice President and General Counsel of The J. Paul Getty Trust, gave an overview of recent art and cultural heritage legal disputes. The lecture was organized broadly into the following categories: social justice issues, Maine-based lawsuits, museum employment and funding issues, New York-based litigation, non-traditional media, authenticity disputes, copyright infringement, and restitution. Mr. Clark began with five social justice cases, focusing primarily on two separate lawsuits involving U.S. universities—the University of Kentucky and Vermont Law School—who received pushback after announcing their intent to remove or cover murals depicting enslaved Black people. The New York-based lawsuits mostly involved public art issues, notably including the controversies around two prominent Wall Street sculptures—Arturo Di Modica’s Charging Bull and Kristen Visbal’s Fearless Girl. In the non-traditional media category, Mr. Clark pointed to Cosimo Cavallaro’s art installation, Cheese Wall, and Cavallaro’s lawsuit against a federal contractor for destroying it. The discussion ended with four copyright disputes and three restitution claims, including the Call of Duty case, resolving that video games are art; a lawsuit against Disney and Pixar for unauthorized use of a stylized van, called the “Vanicorn,” in the movie Onward; Piet Mondrians’ heirs lawsuit against the Kunstmuseen Krefeld for unreturned paintings the heirs claim were only on loan to the museum; and the suit by U.S. federal authorities to recover the Gilgamesh Dream Tablet from the Museum of the Bible.
Panel 8. Navigating Your Museum Through a Changing World
The conference capped off with a seminar by Melanie Adams, Director of the Smithsonian’s Anacostia Community Museum, and Vernetta Walker, President and CEO of Vernetta Walker & Associates Consulting, discussing the values of diversity, equity, and inclusion in the museum industry. Adams and Walker addressed the historical lack of diversity and equity in museums, pointing out that the vast majority of museum leaders and administrators have historically been white. They asked the many museum industry members in the audience to answer questions and hypotheticals about how museums have, could, and should react to different conversations over race or how the actions and inactions of museums and their leadership may participate in different political and social issues. The lecture covered a broad range of museum activity and structure, addressing the fact that in order to effectively change for the better and truly serve and include all communities museums need to work at every organizational level, from regular staff, to featured talent, to the Board level.
One powerful example of museums addressing past failings and making genuine strides toward change discussed by Adams and Walker was the case of the Ringling Museum, which issued statements and social media posts supporting Black Lives Matter, recognizing their past failures to include people of color, and committing to work towards dismantling the systems of discrimination and exlusion prevelent in the museum industry. The Ringling then backed up these words by making actual changes to their work, including displaying the works of African American artists that had too often been excluded from the museums, an effort which did not escape the notice of the community. Adams and Walker presented the case study of the Ringling as just one example of the many structural and cultural changes beyond a few posts and taglines that museums can and should make to address the historic barriers and systemic inequalities that pervade the industry, changes that will only become even more necessary in an ever-diversifying nation.
Co-written by: Tyler Heneghan, David Jenkins, and Laura Kaiser.