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Institute of Art and Law publication: ‘Donor Restrictions on Galleries and Museums’, Special Issue of Art Antiquity and Law, 2023

Posted on    by Elena Cooper

Institute of Art and Law publication: ‘Donor Restrictions on Galleries and Museums’, Special Issue of Art Antiquity and Law, 2023

By 20 June 2023April 15th, 2024No Comments

In 2021, The Hunterian, Glasgow, staged a major new exhibition of the work of James McNeill Whistler (1834-1903): Whistler: Art and Legacy. The Hunterian, part of the University of Glasgow, holds one of the largest collections of Whistler’s work in the world. However, many of the works cannot leave the University, due to the restrictions imposed by Whistler’s executrix: Rosalind Birnie Philip (1873-1958). The legal and ethical issues raised by these donor restrictions and others were examined in a roundtable discussion convened by The Hunterian in October 2021. As the event could barely scratch the surface of the complexities of the case studies that were discussed, it was proposed to the Institute of Art and Law to devote a Special Issue of their journal, Art Antiquity and Law, to the topic.

That Special Issue, guest edited by Dr Elena Cooper, Senior Research Fellow, CREATe, and Steph Scholten, Director of The Hunterian, Glasgow, under the guidance of the journal’s editor Ruth Redmond-Cooper, has now been published and is available via Hein online. In April 2024 the Special Issue has also been made available for free download on the CREATe website.

The Special Issue comprises an editorial introduction by Cooper and Scholten, followed by four articles: two general case studies of donor restrictions at particular collections (by Dr Alicia Hughes and Duncan Dornan), one contextualising article (by Dr Grischka Petri) and, last but not least, a legal reappraisal of a specific restriction on the exhibition of a particular painting: Portrait of Lady Eden by Whistler (by Dr Elena Cooper).

In ‘A scheme of My Protection’: Rosalind Birnie Philip (1873-1958) and the History of the James McNeill and Beatrix Whistler Collection at the University of Glasgow, the art historian Alicia Hughes (a Project Curator at the British Museum and formerly Curatorial Assistant at The Hunterian for Whistler: Art and Legacy) draws on extensive original archival work in providing the first in-depth account of the totality of Birnie Philip’s donations to the University of Glasgow. Hughes’ article is the first to bring to the fore a voice for Birnie Philip, that is distinct from, and sometimes at odds with, Whistler’s, and this article will undoubtedly become a central reference-point for future understanding of Birnie Philip’s gifts to the University.

Front cover of the Issue featuring Whistler’s portrait of Birnie Philip, The Black Hat: Rosalind Birnie Philip, 1900-1902, The Hunterian, Glasgow.

In Legacy of the Burrell Lending Code, Duncan Dornan (Head of Museums and Collections, Glasgow Life) draws on his extensive experience in administering the recently reopened Burrell Collection, Glasgow, comprising a diverse array of cultural objects, including paintings by old Masters and French Impressionists, stained glass, arms and armour, fine tapestries and the most significant UK holding of Chinese Art. When the collection was gifted to the City of Glasgow in 1944 by the shipping magnate Sir William Burrell and his wife Lady Constance Burrell, it was one of the largest, if not the largest, single donation of a collection to a public body of its time. Dornan’s article outlines the process by which the City of Glasgow has, in more recent times, successfully taken legal steps to lift lending restrictions for that collection: first in 1997 and then in 2013.

These case studies are contextualised by the article by Dr Grischka Petri (Interim Professor for Modern and Contemporary Art, University of Tübingen and Research Associate, Department of Intellectual Property Rights, Leibniz Institute for Information Infrastructure, Karlsruhe): An Archaeology of Intentions? The Rosalind Birnie Philip Gift at the University of Glasgow before a Horizon of Comparative Analysis from Turner to Barnes.

Petri uses the Whistler Collection at the University of Glasgow as a way into a comparative consideration of a number of other examples internationally where museums have been, and in some cases still are, dealing with restrictions, including The Freer Gallery of Art, Washington D.C., The Frick Collection, New York, The Barnes Foundation Philadelphia. The wide-view lens of Petri’s article makes clear that it is not unusual for donations to be subject to restrictions. Petri also considers the bequest by J.M.W. Turner (1775-1851) of works to the British nation, which specified how certain of his works were to be hung. Amongst other things, Petri asks whether restrictions imposed by artists, should carry more moral weight than those stipulated by mere collectors.

Finally, Elena Cooper revisits the Whistler v Eden legal case decided in Paris in 1897 and the conclusions drawn by first, Birnie Phillip and later, The Hunterian, never to exhibit Whistler’s Portrait of Lady Eden in perpetuity. Combining original archival work, with a re-reading of lesser-known passages of Whistler v Eden placed in the context of legal historical change, Cooper argues for a ‘more balanced interpretation’ by The Hunterian today as regards the restriction on the exhibition of Portrait of Lady Eden. Cooper’s article demonstrates the practical and real-world consequences of careful scholarly work: insights from legal history allow us to reappraise the way we understand donor intentions today. Cooper’s analysis supports the relaxing of a restriction through the way it is interpreted, without the need for lengthy and expensive legal procedures for a restriction’s formal variation.

The Art Antiquity and Law Special Issue: Donor Restrictions on Galleries and Museums, was published in April 2023, as Volume XXVIII Issue 1 and can be accessed through Hein online. CREATe will be issuing an open-access version as part of the CREATe Working Paper Series in Autumn 2023.

We are also delighted to mention that the July Issue of Art Antiquity and Law will include an article by CREATe PhD Student Andreas Giorgallis, about the return of holy relics from a Japanese University to Cyprus: ‘The Return of the Holy Doors of St. Anastasios from the Kanazawa College of Art’.