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The Stieglitz Collection Tommy W. Wilson

Law and the Arts

In 2005, Fisk University filed a simple request in a Tennessee court and triggered a legal and ethical

firestorm which involved parties from numerous states, generated a national outcry, and took years to

resolve. Cy Pres is loosely transliterated from French meaning “so near” and in the United States is codified

in the Universal Trust Code as “a rule for the construction of instruments in equity, by which the intention

of the party is carried out as near as may be, when it would be impossible or illegal to give it literal effect.”

(Garner 2011). In this case, the need for Cy Pres relief arose from conditions stated in a donation letter

from Georgia O’Keefe, holding successor interest in the collection of her late husband Alfred Stieglitz, for

which the collection is named. In 1949, O’Keefe broke the several hundred piece collection, which

represented both well-known and obscure artists from the late 19th and early 20th centuries, into parcels and

donated them to institutions for public benefit. The bequeathment itself was litigated based upon the will

of Stieglitz, which gave O’Keefe an estate interest in the entire collection, with an attached instruction that

any works not disposed of in the life of O’Keefe be donated to an organization for the public good upon

her death. O’Keefe held investment portfolios and cash reserves, much of which came from the estate

itself, which would provide care for the rest of her life and decided to actuate this instruction before her

death. An issue soon arose whereby Section 17 of New York State Estate Law prevented the donation of

more than 50% of the monetary value of an estate to charity so long as a minor/idiot child survives (Feld

2011). Stieglitz had a disabled daughter, which qualified under then-current law as an idiot and therefore,

the restriction was made applicable. After a ruling was rendered giving O’Keefe 30 days to make her

donations, provided they did not exceed 50% of the 1946 value of the collection, O’Keefe transferred the

collection to their recipients on 8 June 1949 through a deed letter signed in her capacity of executrix of the

estate. There was very little physical transfer on this date as most of the work had been delivered to the

receiving institutions on permanent loan prior to this transfer of good title. In this letter, O’Keefe listed

numerous stipulations including instructions on hanging (white walls or a color chosen by her), storage (the

collection is never to be stored apart and pieces can only be loaned for one person retrospectives), and

finally sale (the pieces cannot be sold either individually or en masse). These conditions were accepted in

a letter by Charles S. Johnson, then-president of Fisk University, in a letter dated shortly thereafter.

Returning to the present, Fisk University is a Historically Black University (HBU) located in

Nashville, Tennessee. Its current enrollment is approximately 700 students, most of which come from

families below the poverty line and are heavy users of financial aid, both governmental and aid from private

organizations such as the NAACP. When Fisk made their Cy Pres request, they had ran a deficit of

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approximately 2,000,000 USD per year and had received loans from its own endowment, almost depleting

it. In their original petition for Cy Pres relief, the university stated their intent to sell two pieces of their

“Stieglitz Collection”. One, The Radiator Building was to be sold to the Georgia O’Keefe museum in New

Mexico. This painting alone has been valued between 30 and 40,000,000 USD on the open market. The

O’Keefe Museum agreed not to intervene in the sale of the other painting (Painting No.3 by Marsden

Hartley) provided Fisk sold The Radiator Building to them for the bargain basement price of 7,500,000

USD. This would have restored the university to fiscal stability, though the longevity of this stability is the

subject of much conjecture. The Chancery Court of Davidson County rejected the request, citing the signed

letters from both O’Keefe and contemporary Fisk administration. Fisk submitted a revised petition for

relief in 2007 planning to sell an unrestricted 50% interest in the collection to Crystal Bridges Museum of

American Art in Bentonville, AR after Alice Walton drafted a letter to both the board of Fisk and the

Tennessee Attorney General offering 30,000,000 for this share. At this time, the Chancery Court accepted

intervention not only from the Georgia O’Keefe museum, but also the Tennessee Attorney General’s office

on behalf of the people of Tennessee. In this proceeding, the O’Keefe Museum made a claim of reversionary

rights stating that Fisk had breached the letters of agreement from 1949, effectively seeking to claw back

the entire collection without any monetary payments to Fisk. The Chancery Court rejected the request for

Cy Pres relief and upheld the claims of the O’Keefe Museum. This prompted Fisk to appeal the case to the

Tennessee Appellate Court, which struck down the reversionary claims of the museum and sent the case

back to Chancery Court for adjudication.

At this point, Chancellor Ellen Hobbs Lyle entertained alternative solutions to the dispute. The

Tennessee Attorney General submitted a plan in which the collection would be transferred to the Frist

Center for the Arts, a large museum in Nashville with adequate funding to store and curate the collection

until which time that Fisk could regain enough financial stability to care for the artifacts in accordance with

museum best practices. This plan was rejected by the Chancellor. However, the care of the collection is

not a new concern, in fact, O’Keefe herself threatened in 1951 to retract her gift and revert the pieces back

to her care amid concerns about gallery conditions at Fisk.

A revised plan was jointly drafted by Fisk and Crystal Bridges Museum of American Art. Crystal

Bridges had made a previous offer to buy the entire collection, however, following the public outrage

involving a previous attempted purchase from Thomas Jefferson University in Philadelphia, withdrew the

offer. This alternative plan has since been described by many as “A complicated divorce” whereby Crystal

Bridges and Fisk would establish a Limited Liability Company entitled Stieglitz Art Collection LLC,

established in Tennessee with the executive offices at Fisk University. In the creation of the LLC, Fisk

would transfer interest in the collection to the LLC and Crystal Bridges would pay Fisk 30,000,000 USD

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for a 50% stake in the LLC, and thereby the collection. The partners further agreed that the 50% stake held

by each partner would be indivisible and that each partner has right of first refusal in a proposed sale of

either partner’s equity stake. The creation of this LLC is considered to fulfill a stated intent of O’Keefe to

make the art available for study “In Nashville and the South”. (Stieglitz, LLC. 2012) The work itself would

revolve every 24 months between Fisk and Crystal Bridges, with the first revolution being at Crystal

Bridges while Fisk renovated their facilities to meet current museum standards. Fisk originally agreed to

set aside approximately 3,900,000 of the proceeds in an endowment entrusted to the Community

Foundation of Middle Tennessee for maintenance of the collection, 100,000 for renovations to the gallery

at Fisk and place the rest in their general fund with earmarks for the science and mathematics departments.

Alice Walton, founder of Crystal Bridges, also donated 1,000,000 USD personally to assist in the

renovations to the gallery. Furthermore, it is codified both in the motion and the operating agreement of

Stieglitz LLC that the collection be managed in accordance with “National Standards and Best Practices

for United States Museums”, codifying the rules of the American Alliance of Museums into a binding legal

document.

When the chancellor accepted this plan, however, she ordered Fisk to place the remainder of the

proceeds into a restricted endowment for the care of the work and further ordered that the endowment be

treated as part of the collection and must be transferred with any transfer of interest in the collection in

perpetuity. (Joint Motion for Approval of Proposed Measures in Response to Order of Demand 2012) Fisk

appealed this last condition and as part of the final ruling, was allowed to place the remainder into the

general fund of the university with 5,800,000 USD immediately spent to pay the legal fees incurred from

the combined court actions. In 2013, the 24 month rotations began, and the work is currently on display at

Crystal Bridges.

However, while researching this case, numerous references are found in both court documents and

analysis of the case to an Op-Ed written by O’Keefe and published in the New York Times on 11 December

1949. The primary reference is to a response by O’Keefe aimed at the public’s question as to why she

donated the work to Fisk when the other works went to internationally recognized art repositories such as

the National Gallery and the Boston Museum of Fine Art. Her response was that it was “because I think it

a good thing to do at this time and that it would please Stieglitz.” The odd thing is that while this passage

is cited, a passage in the next paragraph is ignored. She writes “He and I never believed in sending pictures

travelling, but they can be loaned for a period of not less than three years to other interested institutions.

After twenty-five years they can be sold if the institutions have no further use for them.” (O'Keefe 1949)

This Op-ed succeeds O’Keefe’s letters to Fisk’s Administration by approximately 6 months. While

it is not a directive letter to the recipients of the collection, it is openly published and easily verifiable as

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being written by her. Furthermore, does the citation of the preceding make the entire document admissible?

Could Fisk not have cited this writing as evidence and saved itself the bulk of the estimated 5,800,000 spent

in legal fees? In a Federal Court, it should have been admissible under Rule 803 of the Federal Rules of

Evidence and should be considered self-authenticating under Rule 902. (Cornell University Law School

n.d.) Considering the mirroring of Federal Rules of Evidence by their Tennessee state counterpart, this

evidence should be admissible. Then, a further question is, why neither Fisk nor Crystal Bridges used this

as evidence of approval? Furthermore, why does none of the analysis of the case, in the press or academia,

mention this passage?

In my opinion, this case should not have been dragged out as long as it was. While the Georgia

O’Keefe Foundation does have a right to express an opinion as the successor to O’Keefe, it is nearly

impossible for the “dead hand” to overrule the expressed opinion of the living. O’Keefe makes her wishes

known publically, and there is no overriding document I could find through research which was produced

at a later date. As a museum professional in training, it saddens me to side with Fisk University in this case.

American Alliance of Museums and the Association of Art Museum Directors both discourage the

deaccessioning of work for the general fund benefit of an organization. Though, this poses more of an

ethical than a legal question. Fisk University was not a member of either of these organizations at the time

of their filing. Therefore, they were not then bound by their rules of ethical behavior. O’Keefe provided

rules and guidance through her letters, then recanted them publically a few months later. If this is to be

taken as revised guidance, then Fisk University was within their rights to deaccession and sell the works,

and Cy Pres relief should have granted upon the first filing.

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Works Cited

Cornell University Law School. n.d. Legal Information Institute. Accessed September 27, 2014. www.law.cornell.edu/rules/fre/.

Feld, Allen L. 2011. "Who are the beneficiaries of Fisk University's Stieglitz Collection?" Boston University Law Review 873-897.

Garner, Brian A. 2011. Black's Law Dictionary 4th pocket edition. St. Paul, MN: West Group.

Joint Motion for Approval of Proposed Measures in Response to Order of Demand. 2012. 05-2994-III (Chancery Court for Davidson County, Tennessee at Nashville, July 31).

O'Keefe, Georgia. 1949. "Stieglitz: His Pictures Collected Him." New York Times, December 11: 24, 26-28.

Stieglitz, LLC. 2012. "Operating Agreement." Nashville, TN, June 13.