Museum Law (eBook)

Marilyn E. Phelan, JD, (with honors), University of Texas School of Law, PhD, Texas Tech University, was the recipient of the Paul Whitfield Horn Professor of Law at Texas Tech University, which is one of the highest honors Texas Tech University can bestow on its professors. Phelan also has served as a professor of museum science at Texas Tech University. Phelan is a certified public accountant and is certified by the Texas Board of Legal Specialization as a specialist in tax law. She was given a YWCA Woman of Excellence award and was named a Super Lawyer by Texas Monthly. In 2011, the American Bar Association Section of Business Law, Nonprofit Committee, awarded her the ABA Outstanding Nonprofit Academic Award for contributions and achievements in the field of nonprofit law

TABLE OF CONTENTSTABLE OF SELETED CASES PREFACE ACKNOWLEDGMENTS PART I–OPERATIONS CHAPTER I. MUSEUM GOVERNANCE: LAWS AND PRINCIPLESA. Organizational Structure of a Museum1. Charitable Trust2. Association3. Nonprofit Corporationa. Membersb. Directorsc. Officersd. EmployeesB. Governance Principles for Museum Officials1. Standards of Conduct for Trustees and Directorsa. Duty of Careb. Duty of Loyalty2. Disposition of Assets upon Dissolution3. Enforcement of Fiduciary Obligationsa. Immunity from Liabilityb. Standing (Right) to Suec. Indemnification of Directors4. Federal Regulationa. Self-Dealing–§ 4941 of the Internal Revenue Codeb. Excess Benefit Transactions–§ 4958 of the Internal Revenue CodeC. Accounting for Museums1. Statement of Financial Position2. Statement of Activity3. Statement of Cash Flows4. Fund Accounting5. Museum Collections6. Donated Services and Materials7. Governmental Reporting RequirementsCHAPTER II. MUSEUM PERSONNELA. Employment Laws and Principles1. At-Will Employment Doctrine2. Civil Rights Act of 1964 (Title VII)3. Equal Pay Act4. Age Discrimination in Employment Act5. Vocational Rehabilitation Act6. Veterans Employment Emphasis under Federal Contracts Act7. Americans with Disabilities Act8. Fifth and Fourteenth Amendment Requirementsa. Property Interestb. Liberty Interestc. Procedural Due Process9. Safety RequirementsB. Employee’s Tortious Conduct1. Negligence 2. Museum’s Vicarious Liability 3. Defenses4. Immunity from Liability5. Strict Liability6. Special Liability Rules for Owners of Landa. Trespasserb. Trespassing Childrenc. Licenseed. Inviteee. Abolition of Categories7. Need for InsuranceC. Use of GuardsD. Use of VolunteersE. Unionization of Museum Employees1. Selection of a Labor Representative2. Duty to Bargain in Good Faith3. Subject Matter of Bargaining4. Unfair Labor Practices5. Strikes6. Agency or Union Shops an Right to Work Laws7. How Labor Laws Affect a Museum CHAPTER III. OBTAINING AND MAINTAINING TAX EXEMPT STATUSA. Section 501(c)(3) Status1. Inurement2. Commercial Activities3. Involvement in a Partnership4. Shareholder in a For-Profit Corporation5. Lobbying Activitiesa. Definition of Lobbyingb. Electing Organizationc. Nonelecting Organizationd. Exceptions to Lobbyinge. Penalty TaxesB. Standing (Right) of the Public to Challenge Tax-Exempt StatusC. Museum with Public Charity Status for Tax Purposes1. Disqualified Person Characterization2. Section 509(a)(1) Public Charitya. Support Testb. Facts and Circumstances Test3. Unusual Grants4. Section 509(a)(2) Public Charitya. Support Testb. Investment Income Tesst5. Section 509(a)(3) Public Charitya. Organizational Testb. Operational Testc. Relationship with Publicly Supported CharitiesI. Type I–Operated, Supervised, or Controlled byII. Type II–Supervised and Controlled in Connection WithIII. Type III–Operated in Connection With6. Procedures to Obtain Public Charity Status7. Annual Reporting Requirements8. Involvement in Excess Benefit Transactionsa. Disqualified Persons under Section 4958b. Excess Benefit TransactionD. Museum with Private Foundation Status for Tax Purposes1. Classification as a Private Foundationa. Charitable Contribution Deductionb. Excise Taxc. Self-Dealingd. Failure to Distribute Incomee. Excess Business Holdingsf. Jeopardizing Investmentsg. Taxable Expenditures2. Private Operating Foundationa. Income Testb. Assets Testc. Endowment Testd. Support Test3. Termination of Private Foundation Statusa. Termination Taxb. Voluntary Termination4. Annual Returns CHAPTER IV. FUNDING AND UNRELATED BUSINESS TAXABLE INCOMEA. Funding for Museums1. Federal Funding2. Grants from Private Nonoperating Foundations3. Fund Raising Activities4. Licensing Agreementsa. Basic Principles of Contract Lawb. Terms of Sales Agreementc. Statute of Frauds (Requirement that Contract be in Writing)d. Rejection of Goodse. Risk of Lossf. WarrantiesB. Tax Issues Relating to Funding Obtained through Donations1. Charitable Contribution Deduction2. Deferred Giving3. Valuation4. Disclosure RequirementsC. Unrelated Business Taxable Income1. Income from an Unrelated Trade or Businessa. Not Substantially Related to Museum’s Charitable Purposesb. Regularly Carried Onc. Exploitation of a Museum’s Exempt Function2. Specific Exclusions from Unrelated Trade or Business3. Gift Shops4. Snack Bar and Cafeteria5. Parking Lot6. Travel Tours7. Sale of Art Works8. Fund-raising Activities9. Income from Advertising10. Income from Sponsorships11. Trade Shows 12. Income from Investmentsa. Rental Incomeb. Royalty Income13. Income from a Controlled Organization14. Income from Unrelated Debt-Financed Propertya. Average Acquisition Indebtednessb. Average Adjusted Basisc. Debt/Basis Percentage and Taxable IncomePART II–MUSEUM COLLECTIONS CHAPTER V. ACQUISITIONSA. Purchases1. Authentication--Forgeries 2. Acquiring Good Title B. Gifts1. Legal Requirements2. Cy Pres DoctrineC. Loans1. Law Relating to Bailments2. International Loans of Artistic Treasures3. Exemption of Loans from SeizureD. Natural and Cultural Heritage RestrictionsE. DeaccessioningCHAPTER VI: STOLEN AND ILLEGALLY IMPORTED ARTIFACTS IN COLLECTIONSA. Importation Laws on Artifacts from Other Countries1. Pre-Columbian Monumental Architectural Sculpture or Mural Act2. Cultural Property Implementation Act3. National Stolen Property ActB. Return/Restitution of Stolen and Illegally Exported Artifacts1. Statute of Limitations2. Due Diligence Requirement3 Laches Defense4. Claims From and Against Foreign GovernmentsC. Mediation to Settle DisputesCHAPTER VII: ARTISTIC COLLECTIONS AND RIGHTS OF ARTISTSA. Moral RightB. Droit de SuiteC. Freedom of ExpressionD. DefamationE. Invasion of PrivacyF. Right of PublicityG. Unfair Competition CHAPTER VIII. COPYRIGHT LAWSA. Sources and Extent of Copyright ProtectionB. Original Work of AuthorshipC. Artists’ Moral RightD. Fair Use of Copyrighted WorksE. First Sale DoctrineF. Means to Secure Copyright ProtectionG. Liability for Infringing Copyrighted WorksH. Application of Copyright Laws in a Digital EnvironmentI. Protection and Liability Outside of Copyright Laws1. Right of Publicity2. Unfair Competition3. Trademarks4. Misappropriation 5. Trade DressJ. Licensing of Digital ImagesPART III–HERITAGE CHAPTER IX. NATURAL HERITAGE PROTECTIONA. Laws Protecting the Natural Heritage1. The Convention on International Trade in Endangered Species of Wild Fauna and Flora2. Migratory Bird Treaty Act3. Marine Mammal Protection Act4. Endangered Species Act5. Lacey Act6. Bald and Golden Eagle Protection Act7. Free-Roaming Horse and Burro ActB. Required PermitsCHAPTER X. LAWS IN THE UNITED STATES PROTECTING CULTURAL HERITAGE A. Antiquities Act of 1906B. Historic Sites ActC. National Historical Preservation ActD. National Environmental Policy ActE. Archaeological Resources Protection ActF. Architectural Works Copyright Protection ActG. National Film Preservation ActH. Visual Artists Rights ActI. Preservation of America’s Heritage AbroadJ. Tax Incentives for Historic PreservationK. Sunken Treasures1. Law of Finds and Law of Salvage2. Abandoned Shipwreck ActL. Native American Artifacts1. American Indian Religious Freedom Act2. Archaeological Resources Protection Act and National Historic Preservation Act 3. Native American Grave Protection and Repatriation Act4. International Implications of Native American Grave Protection and Repatriation ActCHAPTER XI. INTERNATIONAL CULTURAL HERITAGE PROTECTION A. Convention Definitions of Cultural PropertyB. 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict1. Protection of Cultural Property during Armed Conflict2. Blue Shield 3. International Committee of the Blue Shield4. Protocols to the Hague ConventionC. 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property1. Guidelines of the American Association of Art Museum Directors and the American Alliance of Museums2. Provisional Adoption by the United States3. Application of Convention Requirements in Other CountriesD. 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage1. World Heritage Committee and World Heritage List2. World Heritage FundE. 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects1. Return of Stolen Cultural Property2. Time Limitations for Restitution3. Innocent Purchaser and Due Diligence Requirement4. Effective Date for Repatriation of Cultural ObjectsF. 2001 Convention for the Protection of the Underwater Cultural Heritage1. Law of the Sea2. International Convention on Protection on Underwater Cultural Property3. Bilateral Agreements APPENDIX A. Conflict of Interest PolicyB. Agreement to Hold HarmlessC. Licensing Agreement D. Form for Gift of PersonaltyE. Bailment Loan ContractINDEX