PITTSFIELD — What's new, goes on view.
What's old, might not soon be sold.
That's the shape of things for the original 40 works culled from the Berkshire Museum collection, as its controversial auctions near and the art world debates the path taken by the 114-year-old institution.
On Friday, museum staff from around the Northeast gathered in Falmouth to discuss the ethics of selling art to fund operations. The debate came during a special forum — "The Deaccessioning Dilemma: How Can We Support Standards AND Museums in Crisis?" — added to a conference of the New England Museum Association.
But last week brought more than talk.
Sotheby's and the museum pushed back at one legal challenge to the art sales, even as they encountered another.
In filings Thursday, the museum presented the most detailed case to date that it has the right to sell the work, as it seeks to block an injunction barring the sales.
An affidavit filed in Berkshire Superior Court included copies of original accession slips filled out over more than a century for 38 of the 40 works. The document shares, for the first time, curatorial records to which the museum has previously declined to provide access.
Nina Garlington, the museum's chief engagement officer and acting co-executive director, says under penalty of perjury in her affidavit that "none of the files contains any express restriction on disposition."
Garlington said four museum staff members worked for about 18 months to check paper and electronic records "and any and all files related to donors ... and correspondence in any way related to the 40 deaccessioned objects."
Cost of delay
In another court filing on the museum's behalf, the chief operating officer for Sotheby's says that delaying the sales would "substantially diminish" prices that the auction house would be able to attract for the museum's art.
To date, the company has spent $451,345 to market the Berkshire Museum auctions and to prepare works for sale, according to an affidavit from Adam Chinn, the chief operating officer.
Presenting the works at another time, Chinn said, would rack up an additional $291,500 in expenses.
Some of the money already spent covered the cost of sending Norman Rockwell's "Shuffleton's Barbershop" and "Shaftsbury Blacksmith Shop" paintings to London, where they were exhibited Oct. 5-8 before being flown to exhibits in Los Angeles and San Francisco. Other works were exhibited in Texas.
Sotheby's created a promotional video just for "Shuffleton's Barbershop."
In its dealings with the museum, Sotheby's has a history of paying to play.
The Eagle has learned that, to secure the museum's business in an earlier deaccession, Sotheby's made an upfront gift to the museum of $500,000.
That figure was confirmed by two people with direct knowledge of the transaction, which resulted in the auction house beating out Christie's and Bonhams to handle the sale of three paintings by Boris Dmitrievich Grigoriev that netted the museum more than $7 million in 2008.
Proceeds were placed in a fund devoted to the good of the museum collection.
By flagging the amount of money already invested in the sale, the museum's legal team aims to show a judge that it would be harmed if a temporary restraining order is granted.
That is the object of the Oct. 20 lawsuit filed by a group of plaintiffs including three Rockwell sons.
Plaintiffs will argue that they and the community also stand to lose — if the auctions take place.
Other affidavits filed Thursday by the WilmerHale law firm take aim at that lawsuit's claim that a 1958 letter to the artist thanking him for the gift of "Shuffleton's Barbershop" could be considered legally binding.
The question of donor intent — and what, if any, restrictions that imposes on the museum — is expected to be a top question when the request to halt the sales goes to a hearing Wednesday.
At week's end, the museum's WilmerHale legal team, led by William F. Lee, was mobilizing to respond to a second lawsuit, this one filed by three residents of Lenox. The plaintiffs, James and Kristin Hatt and Elizabeth Weinberg, also seek an injunction against the sales, but their action makes a distinct legal argument.
Their attorney, Nicholas M. O'Donnell of the Boston law firm Sullivan & Worcester LLP, argues in the action that members of the museum have the right to challenge how well the museum has represented the public's interest in the art collection.
The art sales, the suit says, violate a public trust. The museum, O'Donnell writes, "has planned a sophisticated campaign of deception to deliver the Artwork to auction."
As of now, only 19 of the original 40 works have firm sale dates, as The Eagle reported last week.
But those 19, most of them acquired far more recently by the museum, are poised to bring the biggest bids in auctions scheduled to begin Nov. 13 in New York City.
The two Rockwell paintings alone could fetch bids of $40 million, according to Sotheby's estimates.
Why some works are headed to sale and others are not remains shrouded in secrecy.
Carol Bosco Baumann, a spokeswoman for the museum, declined to say how the museum will go about deciding when — and if — to sell the 21 works that lack specific auction dates.
She said last week that plans for those sales "will be shared in due course by Sotheby's."
Darrell Rocha, a spokesman for Sotheby's, suggested that the choice is really up to the museum.
In an Oct. 20 email to The Eagle, Rocha wrote, "The Museum has decided to sequence the sale of the de-accessioned works differently."
The museum's latest court filings double down on its view that nothing restricts the sale of all 40 works.
But the pieces being held back are, by and large, from the original works contributed to the museum by its founder, Zenas Crane.
When the museum was formed in 1903, as an adjunct of the Berkshire Athenaeum, it operated under an earlier act of the Legislature that specified that works given to the institution not leave Pittsfield.
Another act of the Legislature in 1932 separated the museum from the library. In the latest legal filings, the museum's lawyers note that, unlike legislation in 1871, the 1932 measure did not carry over that prohibition on elements of the collection leaving the city.
But that legal shift might not be a factor in decisions about when and how to sell pieces that date to the museum's founding.
Leanne Hayden, a former collections manager at the museum, said there might be a simpler explanation as to why many of Crane's gifts were removed from auction schedules.
"The only other theory I would put forward was there wasn't as much interest in those," said Hayden, who works as collections manager at the Brick Store Museum in Kennebunk, Maine.
She said Sotheby's might not see a demand now for the 21 works, which include portraits of Revolutionary War figures like George Washington (by Rembrandt Peale) and Gen. David Forman (by Charles Willson Peale).
"I would think that's more the case, rather than testing donor intent," Hayden said, referring to whether the museum felt it didn't have legal clearance to sell.
Hayden said portraits like those of Washington and Forman could be viewed as harder to sell. The auction estimates for both range from $200,000 to $300,000.
But other pieces held back are valued well above that, including Thomas Moran's "The Last Arrow," an oil painting dated 1867. Sotheby's estimates that it could sell for up to $3 million.
"It would be a Sotheby's decision over a museum decision," Hayden said.
A strategic move by Sotheby's might have led it to take one of the museum's two works by Albert Bierstadt, "Giant Redwood Trees of California," out of the American auction lineup, she suggested.
"They don't want to flood one auction with all the Hudson River School paintings," Hayden said.
Rocha, of Sotheby's, did not respond to a follow-up question about how it would decide to time sales of the other 21 works.
Finding a category
A former Sotheby's employee with more than 20 years experience in the art field said Friday that when works are kept back from sales, it is usually because the auction house hasn't found the right category in which to sell them.
The pieces heading to the November auctions fall into clear categories, such as the Nov. 13 sale of American works, followed by auctions of Impressionist and Modern works (Nov. 14 and 15) and European art (Nov. 21).
Works with lower values, the expert said, tend to be grouped in less important sales in which categories might be "lumped together." She spoke on background because she wasn't authorized to comment on Sotheby's practices.
Another observer, with decades of experience in the museum field, suggested that the state Attorney General's Office might have cautioned the museum not to sell works acquired before the 1932 legislation.
The Attorney General's Office has been reviewing the sale, and it plans to weigh in this coming week, ahead of court hearings on the two motions that seek to stop the sales.
The Eagle contacted Christie's, a competing international auction house, to see how it times sales. The company declined comment, saying it does not speak about its competitors. A current employee of the auction house Bonhams also declined to comment.
Other objects no longer headed for specific auction dates include one that Sotheby's said could bring a bid of $7 million: Frederic Edwin Church's "Valley of Santa Isabel, New Granada," an oil painting from 1875.
While some landscapes fell off the Sotheby's map, for now, others like George Henry Durrie's "Hunter in Winter Wood" will be auctioned Nov. 13. Durrie's oil painting, dated 1860, holds a bid estimate of $400,000 to $500,000.
Still other pieces on the sidelines for now: Ralph Albert Blakelock's "Rocky Mountains," George Inness' "Mountain Landscape-The Painter at Work," William Bouguereau's "Les deux soeurs (La Bourrique)," Charles Francois Daubigny's "Paysans allant aux champs (Le Matin)," Daniel Ridgway Knight's "Reverie (Leisure Moments)" and Alberto Pasini's "Faubourg de Constantinople."
Though Sotheby's isn't revealing how it plans to time future sales of Berkshire Museum works, its chief operating officer goes on at length in the affidavit filed last week about how much harm a delay in scheduled auctions would cause.
Chinn said the aggressive marketing plan for next month's auctions could not be re-created. Publications that have written about the sales would see a later, postponed auction as old news, he said, and buyers have already made travel plans.
"Delaying the sale could ultimately cost the Berkshire Museum an amount that is difficult if not impossible to measure, but that could ultimately cost the Berkshire Museum many millions of dollars," Chinn said in the affidavit. "If the sale of the Property were now postponed, it would be extremely difficult for Sotheby's to re-create the excitement that currently exists around the sales."
Meantime, a strong art market could lose steam. He said that, at the start of the Great Recession in 2008, sales fell 75 percent. And after Sept. 11, 2001, it took the art market a year to recover.
Pulling the museum's works from the November sales, Chinn said, also would hurt sales prospects for pieces being offered by different sellers.
Without a doubt, the Berkshire Museum's artworks are calling cards for the Nov. 13 auction — and two in particular.
When Sotheby's installed a streetside billboard outside its New York headquarters last week, people passing by found themselves looking into country life at a barbershop and at a blacksmith's shop, two iconic places created by Rockwell and long familiar to patrons of the Berkshire Museum.
Reach staff writer Larry Parnass at 413-496-6214 or @larryparnass.