Professors Reyhan and De Barbieri Reframe the Law of Donated Art
Albany Law School Professors Patricia Reyhan and Ted De Barbieri are tackling one of the most pressing issues facing museums today: what happens when institutions want to sell, or “deaccession,” donated art. Their recent article, Art as Real Property, offers a novel solution that blends legal theory with real-world cultural controversies. The article was published in the Seton Hall Law Review in late 2025.
Museums routinely “accession” artwork—adding pieces to their collections through purchases or donations. Donations may come with no strings attached (unrestricted) or with specific conditions from the donor (restricted). When museums later decide to “deaccession”—remove or sell works from their collections—the process can spark fierce debates. Traditionally, sale proceeds have been limited to funding new acquisitions, but some institutions have pushed to use them for staff support, building maintenance, or diversity initiatives. The rules become especially complicated when restricted gifts are involved, since donor conditions may limit or even forbid sales.
Museums have long struggled with donor restrictions on artwork, including conditions that limit whether a gift can ever be sold or how it must be displayed. During the pandemic, these questions became urgent as institutions faced financial strain and looked to their collections for relief. Yet the law has offered little clear guidance.
Reyhan, a Distinguished Professor of Law, and De Barbieri, a Professor of Law and co-director of the Community Economic Development Clinic within the Edward P. Swyer Justice Center, argue that clarity can be found by looking to a familiar field: real property law. Just as landowners may impose conditions on the transfer of land—subject to doctrines like the Rule Against Perpetuities, restraints on alienation, and defeasible fees—so too can donors of artwork. By applying these long-established property principles to art, the professors believe courts and institutions can balance donor intent, public access, and the evolving needs of museums.
The article draws on high-profile cases, such as the Baltimore Museum of Art’s attempted sale of works by Andy Warhol and others in 2020, which sparked backlash from donors and the public. By reframing restricted art similarly to real estate, the authors show how legal doctrines could prevent costly disputes and encourage future giving, all while safeguarding public enjoyment of art.
“At its core, our idea would protect works of art while allowing artwork to remain where it is arguably most valuable, on display in museums and cultural institutions,” De Barbieri said.
De Barbieri and Reyhan were initially interested in exploring this topic as they followed the story of the Berkshire Museum in Pittsfield, Massachusetts, as the board attempted to sell art from the museum’s collection to support the cash-strapped museum’s operating budget during the pandemic. They worked with students to study the issue and explore whether there might be a role for the group to play pro bono. Among those pieces deaccessioned by the Berkshire Museum was Norman Rockwell’s “Shuffleton’s Barbershop,” a piece executed by the artist at the height of his career.
A court eventually ruled that the pieces could be sold, as the museum needed the funds to continue operations. The Lucas Museum of Narrative Art, built and funded by Star Wars director George Lucas, purchased the Rockwell ahead of the Los Angeles museum’s opening. The piece remains available for public viewing, but many of the other pieces—purchased by private equity firms and groups—risk being hidden away in private collections or viewable only to those with access, wealth, and stature.
During their research, the professors spoke with several museum curators about their processes. They soon saw that the possibility of designating art differently when acquired helps support cultural institutions thrive for years to come; however, they may need to do so through strategic planning, renovations, staff salaries, and more traditional means like acquiring new pieces for a museum’s collection.
“Treating donated art like real property may sound unusual at first,” the professors write, “but the result is a framework that ensures donors give confidently, museums plan responsibly, and the public continues to benefit from access to treasured works.”
