Export deferred Portrait of Mai to be co-purchased by NPG and Getty

Posted on: April 3, 2023 by

An incredible piece of news dropped on the rather inauspicious time of Friday afternoon. This was the announcement of a plan by the National Portrait Gallery in London (NPG) and the Getty Museum in Los Angeles to jointly acquire the famous ‘Portrait of Omai’ by Joshua Reynolds (left), a work that has been export deferred in the UK for an unprecedented third time following an export application in 2020. The press release notes that each partner will contribute half of the required £50m to purchase the painting from the exporter (Irishman John Magnier) and that the work will be jointly owned and equally shared by the two museums. [UPDATE 24 April: the tantalisingly small amount (just under £1m) that was still needed to be raised by the NPG at the time of writing has now been raised]. The announcement has also rechristened the painting ‘Portrait of Mai’, using the Polynesian subject’s real name, an act of art historical revisionism that shouldn’t face too much opposition these days.

We know the work well. It has been through the export process several times over. In 2003, after it had been export deferred at the cost of £12.5m, the Tate made an offer to purchase it from the exporter at this amount, but it was rejected, leading to a refusal of the licence. But Magnier was not to be outdone. He proceeded to apply for (and obtain) a temporary export licence in 2005, which was then extended, during which time he brought the work to his native Ireland and had it displayed at the National Gallery of Ireland in Dublin. His further attempts to extend the licence in 2012 were forestalled: the UK Culture Minister held that one cannot use the temporary licencing system to circumvent the permanent export licence refusal (a position that has subsequently been set out in the export guidance). Fair enough.

In such circumstances, the export guidance only allows an exporter who has been denied a permanent export licence to reapply after ‘ten years or so’, beautifully imprecise language with which the most recent application would nevertheless comply, coming as it did some 17 years after the earlier rejection. So it was late enough, but also early enough – early enough to allow the exporter to avoid the straitjacket of the ‘binding offer mechanism’, a procedure that came into force on 1 January 2021. No binding offer mechanism therefore applies to ‘Mai’, freeing the exporter to reject (in theory at least) any £50m offer made to him by the NPG and the Getty. That said, if he does, his licence will be refused.

Putting aside the question whether it is sensible during the cost-of-living crisis for a public institution like NPG to make an offer at least half of which comes from public funding (£2.5m from the Art Fund and £10m from the National Heritage Memorial Fund), what are the legalities of such an acquisition? While a cross-border joint acquisition between two major museums has occurred before (see the example of France and the Netherlands spending €160m to acquire the famous Rembrandt portraits of the couple Marten Soolmans and Oopjen Coppit in 2015), this would be a first-of-a-kind for a UK institution. The V&A and the National Galleries of Scotland co-purchased Canova’s Three Graces to save it from export back in 1994 (it would have otherwise gone to the Getty) and two Titians were jointly-acquired for nearly £100m by both the National Galleries in London and Edinburgh in 2009 and 2012. But an international purchase is a little more complicated, practically and legally as well.

The powers of purchase of the NPG Board are set out at s. 4(1) of the Museums and Galleries Act 1992 where it (along with Boards of the National Gallery and Tate) may ‘in particular, acquire (whether by purchase, exchange or gift) any relevant object which, in the opinion of the Board concerned, it is desirable to add to their collection.’ For the NPG Board, a ‘relevant object’ includes portraits so most certainly ‘Mai’ would be fine. But is a joint-acquisition covered? While it is not expressly permitted, one could perhaps read ‘purchase’ in a generous way so as to include those acquisitions undertaken with another entity. It seemed to have worked in the past for the V&A, National Gallery and National Galleries of Scotland, which possess similar powers in their own governing legislation.

But it might be considered wise for the NPG to seek approval of the Charity Commission. The Charity Commission can sanction acts otherwise not within the powers of a charity (like the NPG) under s. 105 of the Charities Act 2011 provided they are ‘expedient in the interests of the charity’. In fact, it was this power that the Wallace Collection had to rely on in 2019 when it sought (and obtained) Charity Commission approval for the ability to lend in and out of its collection, even though such an ability was not expressly provided to the Wallace in its governing legislation (it shares the Museums and Galleries Act 1992 with the NPG, but different provisions apply to it). So, if the NPG takes this belt and braces approach, there is strong indication it would be approved.

There are nevertheless other challenges. These would be of a more contractual nature and would need to be hammered out in the detailed agreement reached between the NPG and Getty. As art historian Neil Jeffares has expressed to me recently, what about ‘questions as to whether the picture is to be owned as joint tenants or tenants in common, under what governing law, with what powers of sale, rules of moiety…? How far have the parties explored these? We are not told.’ See Neil’s very elucidating, and pleasantly opinionated, blog post on Omai from last month.

A joint-custody arrangement always sounds fine in principle – and admittedly they often work well in the museum world – but relationships can of course sour. This might especially be the case when the asset being shared across some 5,000 miles is worth as much as it is. For instance, would the Getty agree never to sell or transfer its share in the work? Whose insurance will cover the relatively frequent transport (private or public)? And what happens if a dispute under the contract arises?

Many questions. And hopefully ones the lawyers will be able to at least account for adequately in any forthcoming agreement. But this too begs the question: would that agreement be made public? One hopes, seeing the high level of public interest involved (and the significant amount of public funds being offered), that it will. But you never know. This entire episode has not exactly been an exercise in transparency. In any event, we would be most happy to examine the legal language if it ever does see the light of day!