treasuresLocal Refining ’s Cultural Heritage Policy

By sharon M. Erwin

38 the philadelphia lawyer fall 2008 hiladelphia, with its history of passionate civic and legal debate over its cultural treasures, has articulated to a remarkable degree the common themes and conflicting viewpoints expressed in the intense international debate over responsible cultural heritage policy. The lessons learned from the recent and very public controversies sur- Prounding The Gross Clinic, the President’s House and its slave quarters, The Dream Garden and The Angel of Purity, provide Philadelphia with an opportunity to critically evaluate its cultural heritage policy, informed by the international cultural heritage dynamic. As the first U.S. city to pass a citywide preservation ordinance, and with its abundant and diverse cultural heritage, Philadelphia is uniquely qualified to es- tablish a national model for a comprehensive municipal cultural heritage policy.

“the dream garden” by maxfield parrish/louis comfort tiffany Courtesy of the Academy of the Fine Arts, Philadelphia. Partial bequest of John W. Merriam; partial purchase with funds provided by a grant from the Pew Charitable Trusts; partial gift of Bryn Mawr Col- lege, The University of the Arts and the Trustees of the University of Pennsylvania. The term “cultural heritage,” which once Edwin Forrest, one of the most renowned Three of the four charitable beneficiaries of referred to the often-monumental remains actors of the 19th century. The agreement the John Merriam estate transferred their re- of cultures, has changed profoundly over the resulting from the suit — reached by the spective interests to the fourth, PAFA, while last sixty years. The term is defined incon- city, the home, the Philadelphia Museum of PAFA agreed to keep The Dream Garden sistently in various laws and conventions, Art and the Pennsylvania Academy of Fine on public display in Philadelphia, using its but there is a clear progression, according to Arts (“PAFA”) — allowed the Philadelphia “best efforts” to keep it in its site in the Cur- renowned arts lawyer Barbara T. Hoffman, Museum of Art to acquire Comedy and Trag- tis Building. Throughout The Dream Gar- toward increasingly complex and broader edy in 1985. den litigation, the city and others seeking to definitions. The broader definitions coin- The recent controversy surrounding The keep the mural in Philadelphia emphasized cide with the movement away from the term Gross Clinic, following Thomas Jefferson The Dream Garden’s context, both histori- “cultural property” to “cultural heritage,” a University’s announcement that it intended cal and physical. The mural, they noted, is concept that includes the tangible and intan- to sell the masterpiece, and a site-specific work of public art integral to gible evidence and creations of a culture. All past controversies over proposed sales of the historic building in which it is located, aspects of cultural heritage policy are affect- cultural objects aroused keen debate among the lobby of Curtis Publishing Company’s ed by the tension between what is or should local residents, institutions, preservationists, new headquarters. Removal would extract it be legally required and what — ethically — scholars, arts professionals, dealers, govern- from its unique context, an observation that is the right thing to do in the context of com- ment officials, private owners, advocacy resonates with the views of archeologists peting and often divergent interests. groups and their attorneys. Equally impas- concerning the importance of context and Cultural Heritage and sioned has been the debate over the preserva- contextual analysis. the Philadelphia Experience tion of the site of the first president’s house The idea of collective or public ownership The Philadelphia experience illustrates in the United States — onetime residence raised over The Dream Garden was based in how the proper stewardship of cultural heri- of and John Quincy part on the express characterization of the tage on a local level can be just as complex, Adams — ignited by the discovery of the mural “as a contribution to public art” by ethically challenging and interdisciplinary residence’s slave quarters and the profound Edward Bok, editor of The Ladies’ Home as at the international level. While interna- issues of cultural identity associated with the Journal, who commissioned the mural, and tional definitions of cultural heritage are flu- discovery in a nation founded on principles the public’s acceptance of that dedication id and evolving, Philadelphia established a of freedom and the rule of law. through undisputed access to and enjoy- stable and notably broad policy in 1955 with The Dream Garden ment of The Dream Garden for eighty-five its Preservation Ordinance (see sidebar). To Controversy years. The estate of John Merriam repre- date, and not surprisingly in a Western cul- During The Dream Garden controversy, sented the contrary view, echoing the re- ture, the debate over the protection of cultur- many argued the importance of its histori- spect for free trade in the market within al heritage in Philadelphia has been ground- cal and physical context as a site-specific the concept of “common culturalism.” Yet ed in notions of property and ownership. work of art as a reason for keeping it in the another perspective on cultural heritage The legal battle in the early 1980s over Curtis Building, where it was installed in policy, sometimes referred to as the posi- William Rush’s sculptures Comedy and 1916. The Maxwell Parrish/Louis Comfort tion of “universal museums,” joined those Tragedy involved several years of litigation Tiffany mural’s history and people’s pas- expressed during The Dream Garden contro- until a negotiated and philanthropic resolu- sionate attachment to it also brought the versy in the debate surrounding The Angel of tion emerged that was significant because of idea of collective ownership, or at least own- Purity and The Gross Clinic. its express recognition of the public’s inter- ership in the public trust, to the debate over The Angel of Purity est. The city opposed the planned auction of The Dream Garden’s future. and The Gross Clinic the sculptures by the Edwin Forrest Home, The Dream Garden was nominated as an In 2004, St. Stephen’s Episcopal Church a home for retired actors and actresses es- historic object under the Preservation Or- at 10th and Market Streets decided to sell re- tablished under the will of Philadelphia’s dinance in response to the announcement nowned sculptor Augustus Saint-Gauden’s of its potential sale, and the Philadelphia Angel of Purity (Maria Mitchell Memorial), by the book Historical Commission declined to issue a large marble relief commissioned by the the demolition permit requested by the es- Weir family for the church as a memorial Philadelphia’s Preservation Ordinance tate, required for the mural’s removal. The to their deceased daughter. The church ini- provides: The preservation and protection of buildings, structures, estate, claiming it could sell The Dream Gar- tially offered to sell the work, installed in sites, objects and districts of den for $9 million but for the rejection of 1902, to the Philadelphia Museum of Art, historic, architectural, cultural, its permit application, appealed the historic reportedly at a discounted price. When the educational and aesthetic merit are designation. museum was unable to raise the funds, St. public necessities and are in the While none of the substantive issues Stephen’s placed it for sale on the open mar- interests of the health, raised by the parties were resolved in the ket and on display in a New York gallery. prosperity and welfare of ensuing three years of costly litigation, The Many criticized the church because the the people of Philadelphia. Dream Garden lawsuit provided time in donor’s intent was to commission the work It defines “object” as: which a philanthropic, negotiated resolu- for the church, and because St. Stephen’s A material thing of functional, tion could develop, resulting in The Dream was not forced to sell due to financial neces- aesthetic, cultural, historic or Garden’s preservation in the lobby of the sity but chose to sell to increase its endow- scientific value that may be, by Curtis Building. In the spring of 2001, the ment. Eventually, with support from a fund nature or design, movable yet related Pew Charitable Trusts agreed to provide for major acquisitions contributed by the to a specific setting or environment. $3.5 million for the acquisition of the mural. Annenberg Foundation, the Philadelphia

40 thethe philadelphiaphiladelphia lawyerlawyer fallfall 20082008 Museum of Art acquired The Angel of Purity by the next threatened loss of a cultural trea- Philadelphia’s past controversies also have (Maria Mitchell Memorial), which is now on sure. Models of “cultural nationalism,” in identified specific legal issues to address. display at the museum. which cultural objects within a jurisdiction The Gross Clinic, for example, demonstrated The role of museums in conserving art are treated as parts of a national heritage, of- the benefit of distinguishing truly site-spe- and fostering knowledge through access fer alternatives to consider. cific works, like The Dream Garden, from and education, particularly in comparison One model of cultural heritage policy those that are intimately bound with the city to non-museum owners of culturally signif- worth exploring is the Japanese law for the and/or define Philadelphia apart from (or in icant property, has been a recurring motif in Protection of Cultural Properties, or Bunka- addition to) a specific location. Similarly, if Philadelphia’s debates over the proper stew- zai Hogo-hõ, which has the dual purpose of cultural heritage is moveable, compromises ardship of its cultural heritage. During the preserving and utilizing cultural property that ensure appropriate care and protections, controversy surrounding The Gross Clinic, “so that the culture of the Japanese people such as temporary loans, leases or rentals, for example, many argued that the work’s may be furthered and a contribution made could mutually benefit the owner and the artistic and symbolic importance merited to the evolution of world culture.” The law public’s interest in access, educating others more than 500 viewers a year at Jefferson. provides for the identification, registration about Philadelphia’s heritage while insuring In a similar vein, when The Angel of Purity and oversight of important cultural property. long-term retention in Philadelphia. was on the market, the head of the Episco- Ownership of a registered cultural property Whether accomplished through the Pres- pal Diocese of Philadelphia observed that in Japan is considered prestigious, generally ervation Ordinance, or through the Ordi- “it would be an advantage to those who care increases the value of the property, provides nance with innovations such as cultural about culture to place [the relief] in a more tax benefits, and affords conservation and easements similar to conservation ease- accessible venue” where it can be seen by maintenance advice and assistance. Owners ments, a deliberate and public consideration larger numbers of people (“Church Seeks to are required to consult with the government of a local cultural heritage policy, enlight- Sell Sculpture by Augustus Saint-Gaudens,” about any proposed transfer, alteration or ened by today’s broader definitions of “cul- Jim Remsen, The Philadelphia Inquirer, No- damage to the property. The law further tural heritage” and a comparative analysis of vember 14, 2004). Again, these perspectives requires either limited-time public access other policies, could create a model for local are expressed in the international cultural to the property or loans to a museum for and municipal governments to follow. heritage debate over source nations retain- a specified time. As long as the registered Admittedly, national laws do not readily ing artifacts that they cannot afford to ex- cultural property is carefully preserved, free translate into municipal policy, but Phila- hibit or that the public cannot access. movement within Japan is permitted and, delphia has the cultural, legal, scholarly and The focus on the role of museums as stew- with the exception of National Treasures civic talent to discern what might work in ards of cultural heritage is also expressed — the most restrictive but most prestigious Philadelphia within the federal and state le- in the “Declaration on the Importance and designation — temporary export is permit- gal framework. With the benefit of hindsight Value of Universal Museums” by nineteen ted with proper documentation and physi- and the absence of a pending crisis, Phila- of the world’s leading museums, including cal safeguards. Korea has a cultural heritage delphia has an opportunity to reflect on its the Philadelphia Museum of Art. The sig- protection system similar to the Japanese cultural heritage policy and how it handled natories to the Declaration urge acknowl- model. In both countries, only a relatively the preservation of Comedy and Tragedy, The edgment that museums serve the people of small percentage of works, ranging from Dream Garden, The Angel of Purity, The Gross every nation, act as agents in the develop- paintings and sculptures to manuscripts Clinic and, in conjunction with the National ment of culture, and foster knowledge by a and historical artifacts, are designated as Park Service, the preservation and access to continuous process of reinterpretation. protected works as a deliberate policy mat- the President’s House slave quarters. Nota- Important to an analysis of Philadelphia’s ter. The systems establish standards of qual- bly absent from this history is the ongoing cultural heritage policy is the definition of ity, preservation and documentation, result- debate over The Barnes Foundation, whose context. The Dream Garden presented an ing in a high level of care for a select portion relevant issues and lengthy litigation history easy question of context because of its site- of cultural heritage. go well beyond the scope of this discussion. specificity. As to The Gross Clinic, some Japan and Korea represent but one ap- The combined efforts of many of Phila- identified Jefferson University as its proper proach that might inform Philadelphia’s delphia’s cultural, philanthropic and busi- context, while others identified Philadelphia cultural heritage policy. Philadelphia’s ness leaders and institutions to keep iconic as its context or environment — a view that Preservation Ordinance works well in the works in Philadelphia, with the aid of many ultimately prevailed. Still others argued that absence of a dispute, and as a means of per- Philadelphia lawyers and the passionate sup- The Gross Clinic is a national treasure rather mitting public comment, transparency and port of its citizens, resulted in great achieve- than a local one, which ownership by Crys- time in response to unilateral decisions to ments. A greater achievement would be for tal Bridges Museum and the National Gal- remove a cultural treasure. The expense and Philadelphia, a pioneer in historical preser- lery of Art might help promote. uncertainty of litigation, however, suggest vation in the United States, to again take the Future of Philadelphia’s that Philadelphia consider providing sup- lead by considering a comprehensive cul- Cultural Heritage port and incentives, as do Japan and Korea, tural heritage policy to serve as a national Just as the cultural heritage debate in to encourage voluntary acceptance of the model for municipal governments. n Philadelphia echoes the international policy public trust, or in the words of legal scholar debate, the laws that form the international Joseph L. Sax, “ownership with responsi- Sharon M. Erwin ([email protected]) cultural heritage legal framework have the bilities.” Philadelphia’s experience also sug- is principal in the Law Offices of Sharon potential to illuminate and refine Philadel- gests the need to create a process for iden- M. Erwin and a member of the Advisory phia cultural heritage policy — a policy that tifying truly iconic works, based on expert Committee to the Philadelphia Volunteer is best explored before passions are inflamed assessments with public participation. Lawyers for the Arts program.

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