Public art, private ownership

7 minute read
PUBLIC ART, PRIVATE OWNERSHIP, and ‘The Gross Clinic,’ or:
The unintended consequences of virtuous acts or:


Thomas Eakins’s “The Gross Clinic” is not only a valued and valuable painting, it also occupies a special niche in the art world. Although the painting is privately owned by Thomas Jefferson University, a not-for-profit educational institution, its unique historical associations create a sense among many that the City of Philadelphia has legitimate claims on it. Yes, legally, “The Gross Clinic” is privately owned (so the thought goes), but in reality it belongs to the public. Such is the power of art.

The recent announcement by Jefferson’s governing board that it intends to sell “The Gross Clinic” for $68 million to the Crystal Bridges Museum of American Art in Arkansas and the National Gallery of Art in Washington, D.C., raises again intriguing and complex questions about “ownership.” Philadelphians and New Yorkers have been down this road before as recently as 1999, but apparently no lessons have been learned.

In Philadelphia the art object of concern was “Dream Garden,” the Maxfield Parrish-Louis Tiffany glass mosaic that occupies some 49 feet of wall space in the lobby of the former Curtis Publishing building at Sixth and Walnut Streets. In New York it was Jasper Johns’s “Numbers, 1964,” on public display in Manhattan’s New York State Theater.

‘Our forefathers wanted this here’

At that time, the owners of the two pieces (the estate of the late Jack Merriam in the case of “Dream Garden” and the governing board of Lincoln Center for the Performing Arts concerning “Numbers, 1964”) declared their intent to sell the art works, provoking a hue and cry from politicians, artists, government agencies and ordinary citizens. Since neither owner, unlike an art museum, could be said “to hold its object in the public trust,” no one raised questions about each owner’s right to sell what they legally owned. The same applies to “The Gross Clinic” and Thomas Jefferson University’s board of trustees.

Nevertheless, because of the historical associations of the art works and/or the public spaces in which they are exhibited, large numbers of people have developed a collective proprietary sense similar to what an owner would feel. So powerful is this sense that the objects are viewed as part of each city’s patrimony. One Philadelphian, for example, was reported to have made the quite remarkable claim about “Dream Garden,” “Our forefathers wanted this right here and it belongs here and should stay.”

The 1999 contretemps were resolved more or less happily. Responding to an outraged public, the Lincoln Center’s board decided not to sell. In Philadelphia the Pew Charitable Trusts came to the rescue by paying the Merriam estate $3.5 million for “Dream Garden” and giving it over to the care of the Pennsylvania Academy of the Fine Arts. The fate of “The Gross Clinic” is yet to be determined.

Keep it in Philadelphia, but…

To be sure, “The Gross Clinic” should remain in Philadelphia, for several compelling reasons. Art, especially great art, defines who we are as a people, and this single painting captures much of Philadelphia’s historic greatness: its Jeffersonian belief in education as a precondition for a working democracy; its pioneering work in both the practice and the teaching of medicine; and its leadership in defining and nurturing the visual arts in a new republic.

That said, I don’t believe that Thomas Jefferson University is the best home for “The Gross Clinic.” The work’s artistic and symbolic importance merits more than approximately 500 viewers a year; the university’s primary missions are other than housing and preserving a world-class object of art; and the money received from its sale can be utilized to advance those missions that are central to the university’s existence. The painting belongs elsewhere and probably should have been moved elsewhere long ago.

Consequently, the joint efforts of the Philadelphia Museum of Art, the Pennsylvania Academy of the Fine Arts and others to match the $68 million offer by December 26 should be commended and supported. Philadelphia abounds in ample discretionary wealth to make these efforts successful. Keeping “The Gross Clinic” in Philadelphia is merely the latest challenge to public and private interests to determine whether or not we deserve to remain in the elite club of world-class cities. The onus is not on Thomas Jefferson University; it’s on public leaders and private wealth.

Mayor Street’s ill-advised gambit

The major obstacle to success at this point is not the price tag but rather Mayor Street’s ill-advised attempt to designate “The Gross Clinic” as “a historic object,” a seldom used category of the city’s preservation ordinance that allows the Philadelphia Historical Commission to block the sale or alteration of any object so designated. The preservation statue is flawed on several counts.

First, there is the question of its unresolved constitutional status. The court challenge to the ordinance brought earlier by the Jack Merriam estate was aborted when the Pew Trusts came to the rescue at the eleventh hour. If the mayor succeeds in defining “The Gross Clinic” as “a historic object,” the most likely results will be: (1) Jefferson will (and should) challenge the constitutional grounds for doing so; (2) the purchase agreement into which Jefferson has already entered will be seriously compromised, if not terminated, because of uncertainty on the buyers’ part as to the painting’s legal status; (3) the painting’s market value will be depressed, an unfair (even if unintended) consequence for Jefferson; and (4) efforts by local groups to match the offer by December 26 will be rendered more difficult if not impossible.

How to discourage art

Even if we set aside the constitutional issues, the “historical object” ordinance is unsound in ways no court can correct. For starters, it serves as a powerful disincentive for a private developer to buy or commission (or for a private organization to receive as a donation) any work of art for public display that might achieve iconic status. Philadelphia is fortunate that the Curtis Publishing Company commissioned the Parrish/Tiffany team to create “Dream Garden”. Would Curtis Publishing have done so if it had known the company might be saddled with an untouchable “historic object?” With this ordinance now on the books, why should some existing or future company do what Curtis did? It’s difficult to think of a justification.

The preservation ordinance also interjects an unnecessary complication into the operations of not-for-profit organizations that occasionally receive art works and other historical objects. Such objects may possess cultural value, but usually they’re a financial liability—more expensive to maintain, insure and conserve than any income they generate, short of exchanging or selling them. And selling them is difficult under the best of circumstances (especially for museums) because of stringent guidelines on divesting cultural objects once they are formally accepted.

Jefferson is a cultural asset, too

To prevent Thomas Jefferson University from selling “The Gross Clinic” (a gift from its alumni) because it is a protected historical object in effect imposes an additional cost on an institution that already struggles to meet its operating costs. Yes, art works are valuable cultural assets that need protecting. But so are institutions (like Jefferson) that occasionally receive such objects but that also contribute in their own ways to the cultural vitality of our community.

If it’s truly in the public interest to bestow upon certain artistic and/or historical objects a special status, then the same governing bodies should create a special fund to compensate the organizations for which historic designation causes hardship. Something similar is common practice with real estate in eminent domain cases, and “the public good” is the justification for this accepted practice.

Thomas Jefferson University has opened a window of opportunity for the city. The Museum of Art and the Pennsylvania Academy have taken the lead in responding to that opportunity. City government should back off from its intended course of action. If it doesn’t, everyone will most likely lose— Jefferson, the city, the public and our cultural heritage.

Gresham Riley ([email protected]) is president emeritus of Colorado College (Colorado Springs, Col.), former president of the Pennsylvania Academy of the

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