In 1878, a group of Jefferson Medical College (now Thomas Jefferson University) (“Jefferson”) alumni collectively purchased Thomas Eakins’s masterpiece, The Gross Clinic, for $200 and donated the painting to the university. The work vividly depicted internationally renowned Philadelphia surgeon, Dr. Samuel D. Gross, surgically removing a piece of thigh bone from a patient who suffered from osteomyelitis. Over the years, The Gross Clinic has continued to be displayed for public enjoyment on Jefferson’s campus. Today, it is recognized as one of the greatest American paintings of the nineteenth century.
The Gross Clinic, recently determined to be worth $68 million on the market, is an extraordinary artistic accomplishment of great historic importance. Still, there are a number of other factors–elements of “local flavor”–that imbue the painting with a great intangible significance and firmly root it within the history and culture of the community. Although the painting is undoubtedly one of immense national significance, locally it is considered “Philadelphia’s painting,” by a Philadelphia artist, about a Philadelphia professor and surgeon, which reminds the city of its creative and technical excellence. For these and many other reasons, Jefferson was met with extreme local resistance and animosity when it announced that, in order to raise money for an expansion of the university’s campus, it would sell The Gross Clinic to the Crystal Bridges Museum of American Art in Bentonville, Arkansas and the National Gallery of Art in Washington, D.C. Technically, Jefferson had no legal obligation to the greater Philadelphia community regarding its handling of The Gross Clinic. At any time, Jefferson could sell the painting to whomever it wished–including a private owner–for his exclusive enjoyment.
This Comment argues that the traditional notions of absolute private property ownership are inadequate in the context of “cultural property” in general and artwork in particular. A state-level legislative scheme should be enacted to protect communal interests in privately owned cultural property. Part II.A begins by providing a detailed overview of the history behind Thomas Eakins’s historic masterpiece, The Gross Clinic, and the role that the painting has played in the history and culture of Philadelphia. Part II.B generally illustrates some of the problems commonly associated with the sale, or “deaccessioning,” of artwork and specifically outlines the deaccessioning controversy that emerged in the context of The Gross Clinic. This Part focuses in particular on (1) the issues that arise when an institution attempts to sell a piece of art against the original and express intentions of the donor, (2) the difficulties that institutions encounter when attempting to use deaccessioning proceeds to cover operating or administrative costs, and (3) the danger inherent in contemplating valuable and culturally significant objects as mere fungible assets.
Part II.C explores the possibility that some privately owned works of art are so culturally significant that they can become elevated to the status of “cultural property” in which the public at large may have a legitimate property interest in addition to those traditional interests of the private owner. In order to present a complete backdrop for the argument, this Part first analyzes competing theories of property ownership and then briefly discusses the Takings Clause of the Fifth Amendment to the United States Constitution.
Part III.A explains the need for a statutorily mandated system to regulate deaccessioning and briefly evaluates two scholarly proposals for regulation. Finally, Part III.B proposes the implementation of a state-level regulatory scheme that would take into consideration a variety of factors in determining what works should qualify as statutorily protected “cultural property.”