Donor Intent Watch: Is the Barnes Still the Barnes?

Earlier this year, following the passage of the Donor Intent Protection Act in Kansas, Philanthropy Roundtable launched a monthly series on donor intent controversies around the country to better inform those who care about this important topic. We are awaiting updates on lawsuits involving Middlebury College and the former Hastings College of the Law, and will continue to inform readers about those topics.  

In the meantime, the September edition of Donor Intent Watch returns to last month’s discussion of the continued violation of Albert Barnes’ intent for his remarkable art collection, and features comments from Nick Tinari, attorney and former Barnes Foundation student.    

We encourage donors to contact us with any questions they have about our featured items and consult additional resources on donor intent at the Roundtable’s Donor Intent Hub. We also welcome any news about donor intent that we may have missed.    

More on the Violation of Albert Barnes’ Intent 

Our August Donor Intent Watch included the news that, in July, the Montgomery County Orphans’ Court in Pennsylvania issued a decree permitting The Barnes Foundation to lend its art to other cultural organizations and alter the way paintings are exhibited in its Philadelphia museum. With this decree, the court has now overturned two additional restrictions in art collector Albert Barnes’ indenture of trust, as it did when it permitted his collection to be moved from its location in the suburb of Merion, Pennsylvania, to downtown Philadelphia in 2012. The new decree received a considerable amount of publicity because it—like the move of the collection—is another striking departure from Barnes’ wishes. 

In 2022 Philanthropy Roundtable released a film entitled “Donor Intent Gone Wrong: The Battle for Control of the Barnes Art Collection.” Among other speakers, the film featured comments from Tinari, a former Barnes Foundation student and now an attorney specializing in intellectual property. He emphasized Barnes’ determination to display his collection in an educational institution, not a museum, saying the way the art was displayed was critical to the learning experience.   

Those comments echoed the description offered by James Panero, author of “Art Held Hostage,” in an article that appeared in Philanthropy Magazine in 2011. Speaking of the building which Barnes had constructed for his collection in Merion, Panero, who was also featured in the Roundtable’s film on the topic, wrote: 

Within those carefully guarded walls, the Barnes collection became even more than the sum of its remarkable parts. Barnes did not just collect a single time period or style of art. Nor did he segregate his collection by type. Unlike what one finds in almost any other institution housing art, Barnes integrated his collection and arranged it by the appearance of colors and shapes. Among his collection of modern masterpieces, Barnes mixed in significant examples of ancient, medieval, Renaissance and non-Western art. He also arranged examples of craft, most notably metalwork and furnishings, among his walls of art. Nothing in the collection was left to chance. Every work of art connected to the next.  

Understanding that element of the original Barnes Foundation amplifies the importance of the recent decree. There was some recognition by the court that the placement of paintings matters, as reflected in the order, which stated, “At the conclusion of any loan or other temporary relocation of a gallery collection painting, it shall be returned to the place from which it was temporarily removed.” Nonetheless, with up to 20 paintings simultaneously on loan or temporarily relocated, it is certain that those who come to view the collection on any given day will no longer see the art as Barnes intended.  

The latest breaches of Barnes’ indenture of trust have garnered significant publicity, though not the controversy and protests that erupted in the wake of the decision to allow the move of his collection. The New York Times featured several critics of the new decree in its recent article by author Ted Loos. Pennsylvania attorney Richard Feudale warned that with loaned paintings missing, viewing the collection will be akin to reading “a story with pages ripped out.” Tinari went much further. Those advocating the latest decree, he remarked, are “continuing to nibble away at what remains of Dr. Barnes’ carcass. … One of the last strictures remaining is the prevention of selling works — that will be next. Mark my words.”  

I contacted Tinari in late August to discuss those comments and he reiterated his prediction that the recent court action “is precursor to selling.” He added that those seeking these changes “are pretty much the same people who had the collection moved and made such an effort to say, ‘look, we replicated Merion,’ which was not true even then. Now they’re saying well, the wall arrangements of Merion are not really that critical. So, again, I feel it is only a matter of time before works are sold.”  

The judge who issued the new decree, Tinari noted, is new to the Barnes case, as is the current attorney general, and neither has “institutional knowledge of past promises.”  Asked about the Barnes’s general counsel Sara Geelan’s comment that the request for the loan changes “is not a slow roll of anything else,” Tinari replied, “This is the kind of thing lawyers say even in the face of the reality that the whole thing has been one long ‘slow roll’ since Barnes died. That boulder is not about to stop a foot from the cliff.” He added, “This case has thoroughly weakened the doctrine of cy pres in this state and as states look to other state cases as guidelines, for the country in general. … A sound rebuke of this latest ruling is warranted.” 

In his New York Times article, Loos began by asking, “If a visitor goes to the Barnes Foundation, and a favorite Cézanne, Matisse or Renoir is missing because it is on loan to the Louvre, is the Barnes still the Barnes?” If —as we say in “Protecting Your Legacy” – donor intent is best understood as “a commitment to honor a donor’s principles, to maintain the integrity of his or her philanthropy over time,” there is only one bitter answer to that question.    

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