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Liability for consigned or loaned works as a result of protests at museums

Posted on 19 October 2022

Public protests involving the visual arts and institutions are not a new phenomenon, but a heightened engagement of social and environmental movements have seen an escalation in artworks and public galleries being targeted. However, a new development is the societal role and ethics of public galleries and collections, which are increasingly found in the eye of the storm.

In April 2022, activist theatre group 'BP or not BP?' organized a "Make BP History" protest at the British Museum in reaction to the museum's ongoing sponsorship deal with BP. The protest involved a variety of protests around the museum. Activities included adding sticky labels to the BP-sponsored Stonehenge exhibition with messages such as "We spend £40 million per year lobbying against climate action" and a performance protest by 'Save Stonehenge', during which protestors poured fake oil on themselves inside the museum to challenge BP sponsorship and the proposed Stonehenge road tunnel. The campaign group Just Stop Oil, which is calling for "the government to end new oil and gas [extraction] and for art institutions to join them in civil resistance," glued their hands to the frame of a copy of The Last Supper, attributed to Giampietrino, at the Royal Academy of Arts in London in July of this year. The protestors also sprayed "No New Oil" onto a panel. Activists from the same group also attached themselves to celebrated Constable painting The Hay Wain (1821) at the National Gallery in London. Protestors covered the painting with sheets of paper featuring a reimagined version of the painting, which Just Stop Oil stated "carries a nightmare scene that demonstrates how oil will destroy our countryside. The river has gone, to be replaced by a road, airplanes fill the sky, pollution belches from cities on the horizon, trees are scorched by wildfires, an old car is dumped in front of the Mill and the famous Hay Wain cart carries an old washing machine." The demonstrators have also glued themselves to works at the Courtauld Gallery (a Van Gogh), Manchester Art Gallery (a JMW Turner), and Kelvingrove Art Gallery and Museum (a McCulloch).

The protests do not result in just disrupting museum visitors - The Hay Wain "suffered minor damage to its frame and there was also some disruption to the surface of the varnish on the painting." The graffiti sprayed on the wall at Kelvingrove resulted in an estimated £15,000 worth of damage. Most of the paintings targeted have been landscapes, well-known and of high value. Protestors stated that they are "calling for the government to end new oil and gas [extraction] and for art institutions to join them in civil resistance." One of the protestors at Kelvingrove opined that the "art world is responsible; every section of our culture is responsible."

While all the works have been examined by conservators and are now back on display, and no permanent damage was done at the British Museum, these actions could be cause for concern for donors who loan or donate their art to museums. First, the increase in protest actions at museums could lead to higher insurance premiums for art on display at these locations, particularly art which is already of high-value or of high profile and is destined to be displayed in a prominent position. It is common for museums to pay the insurance of any art that is on loan, which may be covered by the museum's commercial fine art insurance or a government scheme. Fine art insurance policies normally cover most forms of risk with some exclusions for risks arising from inherent vice, governmental action, war, invasion, hostilities, rebellion, insurrection, nuclear damage, and so on. Given the threat of protests, lenders should ensure that this risk is not exempted in any policy. Insurance policies and governmental coverage vary from country to country, so it is particularly important to understand the insurance obligations when a work is traveling outside of the collector's home country.

In the UK, public museums may avail themselves of the Government Indemnity Scheme (GIS), a non-commercial insurance agreement that allows the public access to objects in the UK which might not otherwise be available. Cover is provided on a cost-free basis for loss and damage while a work of art is on loan. The GIS scheme covers both domestic and international loans. In the US, museums can take advantage of the Arts and Artifacts Indemnity Program, under which the federal governmental guarantees to pay loss or damage claims arising out of museum exhibitions of artworks, provided the property is of educational, cultural, or scientific value, and is certified by the Secretary of State or their representative as being in the national interest. The program also covers works of art owned by U.S. persons being exhibited domestically. The lender may choose to rely on its own insurance, but in that event could be required by the museum to add the museum as an additional insured party or to provide a waiver of subrogation against the museum.

Ultimately, loan agreements should adequately address the museum's responsibility in these circumstances. Were damage to have occurred, the owner of the art should be assured that insurance cover would not be disputed by the borrowing party, and that the museum would pay/have sufficient cover for any needed restoration at the appropriate level authorised by the lender as required. Regardless of whether a government scheme or a private company covers the insurance, the lender should also ensure that it is comfortable with the stated terms in the insurance schedule, such as "against all risks" or "nail to nail", the sum being insured, and that it [the lender] is named as the lender of the work on the policy. Some loan agreements may include a force majeure clause that allows the contract to be voided in the occurrence of an extraordinary event, or circumstances beyond the control of the parties. This is a difficult to standard to meet, and it is generally required that contemplated events, such as a public protest, must be explicitly stated in the loan agreement for the clause to have effect. Loan agreements should also be sure to address the level and type of security that will be provided for your objects, the process of notification, and controls that the lending party retains over their property. It is best to ensure that all potential issues are practically explored and agreed between the parties and are set out in your contract before lending a work to an institution to avoid disputes later. The potential issues and concerns will of course increase if artworks are to be exhibited in multiple venues or are to be displayed out of jurisdiction where legal and practical variations should be evaluated.

Lauren Bursey, Consultant
Qualified in New York & Illinois

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