Dewey, Cheatham & Howe

Mid-America's Leading Law Firm

www.dchllc.org

To: Junior Associate

From: Senior Partner

Subject: Proposed exhibit for the Museum of the Midwest*

I have just had a long telephone conversation with Mark Middleton, the Director of the Museum of the Midwest. The long-time general counsel of the museum abruptly resigned over the weekend and checked himself into a psychiatric hospital. He said that the plans for an upcoming exhibit at the Museum had driven him crazy. As you may know, our firm has not done a lot of business with art museums, although some of our major clients are serious collectors of art. But the other senior partners and I believe this would be a good growth area for our firm. We would like you to do some quick research and give us a brief memorandum on the issues presented by the proposed exhibit. Here is what I know about the exhibit from my recent conversation with Director Middleton.

The two senior curators at the museum are John Wright, Curator of Paintings and Sculpture, and Jane Links, Curator of Decorative Arts. Normally they are very competitive with each other but they have been working together well in constructing this exhibit. The exhibit is entitled “In the Eye of the Beholder” and is supposed to emphasize the sensuous beauty of art. The museum has been anxious to improve its stuffy, conventional image and to reach out to audiences other than the white middle-aged visitors; it is especially interested in increasing attendance from people under thirty.

Because this is the 50th anniversary of the museum, and before the details of the exhibition were finalized, a special grant was authorized by the state legislature to help cover the costs of the exhibition catalog. The city government also agreed to provide a grant so that all students may be admitted to the museum free during the three months of the exhibit.

One of the most famous objects in the museum's collection is a gorgeous Louis XIV bed, complete with watered silk and brocade hangings. Plans call for surrounding the bed with a carefully selected roomful of paintings, drawings, and sculpture representing both the female and the male nude.

Hugh Heffner, through the Playboy Foundation, has provided a grant to cover the costs of transporting and insuring Gustave Courbet's ' L'Origine du monde.

The Xindu County Museum in the Sichuan province will lend a series of later Han brick panels excavated from the tomb of a wealthy man. These were displayed at the Seattle Art Museum in 2000 [see Catalogue No. 107]. They depict a series of ménage a trois in various athletic positions. According to The Art Newspaper, "Although their intention is not fully understood, they reflect an ancient strain in Daoism that advocates vigorous sexual activity as a form of spiritual therapy" [November 24, 2000].

Samuel Wong, a leading member of the museum's Board of Trustees , has persuaded his brother, Robert, who lives in Taiwan, to loan from his private collection a few Ming Dynasty erotic prints, as well as some phallic ritual bronzes from the Han Dynasty. Because of his stature in the community, Mr. Wong would like this loan to be treated anonymously.

The Chinese curator who brought the Han brick panels showed great interest in Mr. Robert Wong's phallic bronzes. He indicated that it was very rare for his government to permit the export of such works.

Annie Warbucks, another trustee , will loan three works from her collection: a Modigliani, a Jeff Koons, and a Cindy Sherman. In preparing the descriptions for the catalog, John Wright's assistant discovered a gap in the history of the Modigliani. It was loaned in 1931 from its Belgian owner to a Paris exhibition entitled Artists of Montparnasse. In 1952, an American Jew of Italian origin, who felt an affinity for Modigliani, also an Italian Jew, purchased it in Zürich. Its history between 1931 and 1952 is unknown. Mrs. Warbucks bought it in 1988 at a Christie's auction in New York. Since Modigliani's only solo exhibition (at Berthe Weil's Parisian gallery in 1917) was temporarily closed down by the police because of the scandal sparked by a nude in the gallery's window, Mr. Wright really wants to include this work in the exhibition.

Video artist, Kiki LeQue, has agreed to add a work of digital art to the show. She has received a grant from the National Endowment for the Arts (NEA) arranged by the Museum of Contemporary Art across town. LeQue's artwork will consist of a live camera that photographs everyone going into the show, then randomly digitally adds their facial features to larger than life nude images, taken from well known works of art, that will be projected onto the halls as one exits toward the museum shop. Stills of the images will be retrieved periodically and assembled as part of an ongoing collage that she will construct. If the resulting work of art satisfies her, she plans to exhibit it as part of her show at the Museum of Contemporary Art next month. LeQue has not yet identified these "well known works of art," and has refused to let museum staff screen the nude images before they go up.

Director Middleton is both excited and concerned about the publicity now being generated by this exhibition, which is scheduled to open in three weeks. The museum's education department reports a number of calls from high school newspaper reporters who are eager to get the press kit for this show. So many calls from the media have been received, in fact, that a press conference is scheduled for next week. However, Middleton is concerned that some of the publicity could be negative if the museum is accused of exhibiting pornography. T he Courbet, for example, has been described, accurately in my view, as a painting of “the female genitals in lingering, worshipful detail” [Muthesius and Neret, Erotic Art, 1998]. I do not think he needs to be legally concerned about this, but you should do some research to confirm my opinion.

Christie Ann Hefner, the chairman and chief executive officer for Playboy Enterprises Inc., created the Hugh M. Hefner First Amendment Award in honor of her father. She has expressed interest in joining the Board of Trustees of the Museum of the Midwest. She has assured Dr. Middleton that if the museum were charged with exhibiting pornography, the Playboy Foundation would help fund the museum's legal defense and Dr. Middleton might well receive the next Hugh M. Hefner First Amendment Award.

However, the head of the museum's Education Department wants to keep all school groups out of the show. She says it's entirely inappropriate for grades K-6, and grades 7-12 will only snigger at it. Dr. Links, the Curator of Decorative Arts, on the other hand, wants all the school groups to go through and is going to exclude them only if we, as lawyers, insist. That bed really is a king's bed and the little kids love it. Should children be excluded or should the museum just put up a warning sign? Should this be a parent's decision or the museum's? Can we put up a sign without exposing ourselves to some kind of liability for exhibiting pornography?

As you know may know, ALL visitors to the museum must exit through the long hall that leads to the museum shop. That hall is where Kiki LeQue will have her video installation, nude bodies with random visitor faces. What about those elementary school kids walking down the hall and seeing all the nude bodies put up by LeQue? As you may know, this is an artist who does NOT believe in fig leaves. Are we liable to the kids' parents in any way? Do we have to put up a sign? Do we have to warn the school groups somehow?

LeQue says we have no right to hamper her artistic expression in any way once we invite her to do this commission. In other words, we CANNOT go down the hallway at discreet intervals, putting up "This Way to the Shop" signs where she could have added fig leaves. Can that possibly be true?

A group of museum employees seem to believe that this exhibit demeans women. Further, they say it creates a hostile work environment for the security staff who have to stand in the exhibit as guards all day and for any staff who walk down the long hall to the bookstore. They have announced plans to demonstrate at the press conference. They may even go into court to seek an injunction to close the show.

As to the possible legal issues raised by this exhibit, here are a few questions that immediately come to mind:

1. Should the museum be concerned about prosecution for pornography?
2. Can the exhibit be restricted to people over a certain age?
3. Will signs warning of the content of the exhibit protect the museum from further legal action?
4. Can the museum block portions of LeQue's installation?
5. Should the museum staff insist on knowing which famous works of art LeQue will be sampling?
6. Should the museum decline to use Mrs. Warbucks Modigliani?
7. Should the museum ask Mr. Robert Wong for documentation on his Han Dynasty bronzes?

Have I overlooked any other problems? Can you think of any other issues that need to be explored?

* With thanks to Scott P. Cooper, Marcy Strauss and Penny Pittman Coby, "Houston, We've Got a Problem," ALI-ABA Cpurse of Study, Legal Problems of Museum Administration, March 20-22, 2002, p.285.