Taken aback by the disclosure that some museums, like dealers, request a commission when art they are exhibiting is sold, museums around the country scrambled last week to plead innocence, profess ignorance or say that they had stopped doing it. Only one of some two dozen museums surveyed -- the Walker Art Center in Minneapolis, which is widely known for exhibiting the work of new artists -- admitted to the practice.
The museum world has been in turmoil over financing since the fall when the the Brooklyn Museum of Art got into a fight with Mayor Rudolph W. Giuliani over "Sensation," the exhibition of art that is owned and was largely supported by the British collector Charles Saatchi. The latest commotion was set off on Feb. 12.
At a University of Chicago conference on the arts in the wake of "Sensation," Gilbert S. Edelson, administrative vice president of the Art Dealers Association of America, revealed that some museums ask for sales fees. Requiring such a commission could create a conflict of interest, perhaps tempting curators to show work because it would sell rather than because of its artistic merits alone.
Mr. Edelson declined to cite names, but Thelma Golden, who had been a curator at the Whitney Museum of American Art for 10 years until 1998, said that the Whitney had such a provision in its loan agreement while she was there. Interviewed after the conference, several lawyers who review museum loan agreements for collectors confirmed that other museums also had the provision, usually asking for a 5 percent fee. They also declined to name the institutions.
But calls to several museums confirmed that the Whitney was not alone. At one time or another, the New Museum of Contemporary Art and the Solomon R. Guggenheim Museum, both in Manhattan; the Brooklyn Museum of Art; the Seattle Art Museum; the San Francisco Museum of Modern Art; and the Museum of Contemporary Art in San Diego all asked for a commission from the buyer if a work on view was sold. As recently as last year, the Museum of Modern Art requested a "handling charge" for works sold in the loan forms it used.
All those museums said that they have changed their loan agreements. Maxwell L. Anderson, the director of the Whitney, said that he eliminated that provision of the museum's loan agreement last fall after learning of it in a review of the museum's policies, which he began after joining the Whitney in September 1998. "We caught what struck me as a peculiar provision of the loan agreement, and we changed it," he said. "I thought it was very outdated."
The Whitney stopped collecting the fees years ago, Mr. Anderson said. "In the 1990's, there were no commissions that we know of."
Most of the other museums with the provision also said that they received little, if any, money from it. "We have never collected a commission," said Lisa Dennison, deputy director and chief curator of the Guggenheim. "In an old version of our loan form we asked for a commission of 10 percent, but we dropped the provision about 10 years ago. It's a very difficult thing to enforce."
Besides, many collectors, or their lawyers, balked at the practice. "I've always crossed it out," said one arts lawyer who declined to be identified, "and no one has ever objected."
So, sometime during the last few decades, these museums discontinued the practice or forgot about it. As soon as he read about Mr. Edelson's remarks, said John R. Lane, who has been director of the Dallas Museum of Art for about a year, he reviewed the institution's loan agreement for the first time. "And I'm happy to say we don't have any clauses on that subject," he said. Other museums said they did not know what their policy was.
Among the museums that said they had never asked for a commission are the Metropolitan Museum of Art, the Art Institute of Chicago, the Hirshhorn Museum in Washington and the Museum of Contemporary Art in Chicago.
The museums that once asked for commissions seemed to have reached that position from two perspectives. The Whitney started asking for a commission during the 1930's, when there was virtually no contemporary art market, Mr. Anderson said. The money generated was put into the museum's acquisition fund. Mr. Lane of the Dallas Museum said that the provision was a fairly common part of the loan form until at least the 1970's because many museums grew out of artists' associations.
"But by the 1980's," Mr. Lane said, "interest in contemporary art had grown so that there were other ways of finding support for contemporary art exhibits and, at the same time, the gallery system had also grown strong by then."
At about that time another group of museums began requesting commissions for that very reason. "We'd put on an exhibition and a big collector would come in and discover an artist," said Hugh Davies, director of the San Diego Museum of Contemporary Art. "The artist's gallery would make a lot of money and the museum had done all the work. There was a sense that museums were being cut out of the validating process."
"And at that time," Mr. Davies added, "a lot of people thought that museums should be more entrepreneurial." So, several museums started asking for commissions in the late 1980's. Mr. Davies said that museums like his had changed their loan forms simply because the system did not produce anything. "I'd like to tell you we took it out because we realized it was a conflict of interest and might jeopardize our tax-exempt status, but it was really because nothing was happening with it," he said.
Like those museums, the Walker was being entrepreneurial -- out of necessity, it said. David Galligan, the museum's administrative director, said the Walker initiated a commission system in 1995, when federal money for the arts had been cut and other sources of money also dried up. Whenever an artwork was sold during an exhibition or while on any subsequent tours, the museum was to be paid 5 percent of the sale price.
"I see the appearance of a conflict exists," Mr. Galligan added, "but no curatorial decision here has ever been influenced by the potential for gain. It is now part of a review of our practices we're undertaking in light of 'Sensation.' It's my judgment that the likelihood of its continuance is very small."
Mr. Galligan said the policy was enforced for only one show, "Brilliant! New Art from London," which coincidentally included some of the same artists as "Sensation." The Walker collected less than $4,000 from "Brilliant," Mr. Galligan said. "We never felt comfortable with it, but it's still on the loan forms," he added.
Mr. Davies, a former president of the Association of Art Museum Directors, said the provision was more widespread than people realized. "I guarantee that after they read your article, a lot of places will discover that they have it," he said.
Neither that association nor the Association of American Museums mention commissions in their ethics codes, but both are reviewing their policies and their officials said that the new codes would probably address the subject. "All museums are properly looking at their conduct to see if it matches a standard, and the standards are changing," said Mr. Anderson of the Whitney. "We're more accountable, and that's a good thing."