Legal Straits

Fisk now finds itself in a legal straitjacket. The university can’t sell the paintings and is still facing a July trial—more legal bills—to answer the claim made by the museum that the school has violated the conditions of O’Keeffe’s gift, in particular to exhibit the collection intact. The collection has been in storage at the Frist Center since 2005, when the university determined that its gallery didn’t provide proper security or environmental controls. While the remedy the museum seeks is unspecified in the legal documents, the threat of reversion of the collection back to the museum, as the successor to O’Keeffe’s estate, looms. Fisk could lose the art and literally be the poorer for it. And if the university retains the collection, the museum will ask the court to insist that Fisk comply with O’Keeffe’s conditions for its exhibition and maintenance, conditions the school already has claimed are burdensome. If the university doesn’t comply, the museum could drag Fisk back to court again.

In her decision, Lyle suggests a way out. “Perhaps if the University had pled specific facts of hardship…such as the University’s financial condition renders it impracticable to continue to maintain the Collection at the University, and instead of trying to generate revenue from the artworks had tailored the relief to locating a proper facility in Nashville which would bear the exhibition and display costs, make the Collection available frequently and free of charge to Fisk students for the study of art, neither break up nor sell the Collection, duplicate the display insisted upon by Ms. O’Keeffe and retain the name of the Collection as the Alfred Stieglitz Collection at Fisk University, the Court could, as a matter of law, have considered such use as being close to and in furtherance of the intent and purpose of the donation….”

Such a scenario was the subject of a series of brainstorming sessions in March in which Tennessee Attorney General Bob Cooper participated along with members of Fisk’s legal team, bankers, representatives of the Frist Foundation and the board of the Frist Center. The game plan included a capital campaign to help stabilize Fisk, but it never evolved beyond the talking stage.

The alternatives the university faces are an appeal to the Tennessee Court of Appeals, but that means gambling yet more legal fees against the possibility of another defeat. Or university officials could reach some settlement with the museum.

They’ve been down this road before. Last year, the university and museum agreed that the museum would pay $7 million for “Radiator” and not oppose the sale of the Hartley. But Cooper rejected the settlement when outside offers for “Radiator” were three times that much. Cooper reasoned that selling the painting for “a bargain basement price” was not in the best interests of either Fisk or the Tennesseans who are the ultimate beneficiaries of O’Keeffe’s gift.

Fisk officials have declined repeatedly to comment to the Scene on what course the university will pursue until after its board meets this week. The museum’s board president, Saul Cohen, says, “We’re always willing to talk” about a settlement. “But any proposal will have to come from Fisk. The opinion of the court provides no benefits for Fisk. The settlement was mutually beneficial.” Any new agreement, however, would have to be approved by the court and could be challenged by the attorney general.

The museum’s previous offer makes clear that it wants “Radiator” and is willing to break up the Stieglitz Collection to get it. This is understandable for an institution devoted to the celebration of O’Keeffe’s artistic vision. Yet the museum has successfully argued for the legal necessity to respect O’Keeffe’s vision for the Stieglitz Collection. She personally assembled the collection and stipulated that it be exhibited intact so that Fisk students, and anyone else who walked through the gallery door, could see modern art as Stieglitz did.

Cohen describes this inconsistency as “superficial. If Georgia O’Keeffe were alive today she’d have the power to waive conditions. And we believe that she’d have liked to have her painting in her museum, which didn’t exist when she made the gift.”