Continuing Coverage: Galleries, Money & Litigation
From The Village Voice column Scene & Heard
Appropriation, April 28, 1992, p. 100
Neo-Geo - the last of the red-hot art marketing strategies - may go down in history as Rip Off, Inc. Early this month a federal appeals court refused to overturn a ruling against Jeff Koons for his "piracy" of photographer Art Rogers's image of a couple holding eight German shepherd puppies. (Several other similar suits against Koons are also pending.) Now artist Robert Padilla is suing New-Geoist Ashley Bickerton for the uncredited use of a painting for which Padilla was paid $400 and that Sonnabend Gallery sold, as part of a 16-canvas amalgam sporting an $85,000 price tag called Style Piece: Head Trip1.
Padilla was commissioned to create his black-and-white portrait of a Native American chief from a turn-of-the-century photograph supplied by Modeworks - a company that specializes in arranging such commissions. The French-born artist's suit charges Modeworks, Bickerton, and Sonnabend with false advertising under the Lanham Act and denial of authorship under the New York Artists' Authorship Rights Act. (This is the law that enabled David Wojnarowicz to halt Reverend Donald Wildmon's anti-NEA brochures illustrated with misleading fragments of the artist's work.) It seeks recognition of his authorship and monetary damages.
Meanwhile, the Keith Haring Estate is suing Playboy Enterprises for a different sort of appropriation: the transformation of one Haring work into six. Technically, the estate is charging that PE violated a 1990 settlement of an earlier suit concerning the marketing of four images the girlie-mag publisher commissioned from Haring in 1985 and 1986. According to the estate's complaint, Playboy took one of them - a folding, three-dimensional Christmas ornament call Dancers (1986) - and turned it into six signed works, which have been reproduced on watches and other merchandise. The KHE wants Playboy - renowned for its First Amendment activism - to curtail its "mutilation" and "defacement" and to pay damages. PE lawyers did not return Voice calls for comment.
Conceptual artist and AIDS activist Jay Critchley is doing his damnedest to appropriate the American flag as the logo for his Old Glory Condom Corporation. The Trademark Office has refused to register it, charging that coupling this image of a U.S. flag with the promotion of condoms "would scandalize or shock the conscience of a substantial composite [sic] of the general public." Critchley, with the assistance of the Center for Constitutional Rights, is arguing that the logo is being discriminated against because of its political content. (The Trademark Office has registered such apparently unscandalizing trademarks as Deep Stroker and Man-to-Man.) "The purpose of this corporation," Critchley said, "is precisely to link patriotism with protecting and saving lives."
Public Relations, February 24, 1989, p. 99
Speaking of publicity-seeking, it was widely assumed that Mary Boone's libel suit against Jeff Koons for allegedly characterizing her as a "compulsive liar" was a game of chicken. In fact, the $30 million suit (Boone to one interviewer: "I'm not interested in the money") is "moving forward," according to Boone's lawyer Charles Boulbol and confirmed by John Koegel, Koons's lawyer. Newsday has also been served with a summons--staffer Amei Wallach wrote the offending article about Koons--and has until February 28 to respond. Such cases are, by the way, extremely difficult to prosecute. If Boone is deemed a public figure, the statement must be proved fase, damaging, and published with knowledge of falsity.
The other compulsively honest art-world denizen contemplating a likely-to-be-messy lawsuit is critic and editor Barbara Rose. The object of her disaffection is critic Paul Taylor, whose Fame magazine profile proposed, among other things, the vital art-world datum that Robert Morris is the father of her son. Prior to publication, Rose "advised them [Fame] of defamatory material," according to her lawyer Barry Lee Cohen, and asked that the offending issue of the magazine not be distributed. It was, and as of this writing, Cohen is still waiting for a response to his demand for a retraction. No summons has yet been served.
Fame's lawyer, Risa Dickstein, terms the situation "on hold" and proposes that "before a suit is filed, someone should sit down and re-fact-check the piece." Don't bet on that summons ever being served. On November 15, according to Paul Taylor and others present at a Guggenheim Museum panel on Pop Art, Rose slapped Taylor across the face. A compulsive gentleman, Taylor didn't strike back but responded by reporting the alleged assault to the police.
Art Mart: 'T-U-F-F', November 6, 1990, p. 113
"We've had a fabulous September, although I'm hearing vague doom and gloom from everybody," says a Soho gallery director who chooses to remain anonymous. As the economy slides, such remarks are increasingly common - at least in some parts of the art world's heart.
If you want to understand the commercial art scene, it's essential to bear in mind that there are a variety of art markets, and an overall New York market whose size is impossible to determine. (The Department of Cultural Affairs uses "a ballpark figure of $6 billion to $7 billion for all the arts," according to the New York-based Art Dealers Association of America spokesperson who wonders, "How do you even define art? What about frame shops that sell posters?") Only the publicly held auction houses talk (ad nauseam) about their grosses. But not all of Sotheby's $2.9 billion and Christie's $2.1 billion in sales last year were generated in New York, and not all came from artworks.
So, forget statistics. It's more revealing to liken the art markets to commodities exchanges, affected - like Wall Street - by outside events and vibrations. To reduce marketing matters to their barest essentials, there are just two markets - the primary market, where artworks make their commercial debuts, and the secondary, or resale, market. The auction houses now set the pace of the secondary market, and it's the secondary market where the art world's current jitters have assumed nervous-breakdown proportions.
Nearly every one of the 30 American dealers and curators I spoke with characterized the secondary market as "in shambles," "shot to hell," or something equally grim. (One of the few on-the-record comments from this reticent bunch was dealer Brooke Alexander's observation that "people I know in secondary sales say it's T-U-F-F tough.") The widely held, positive spin on the situation was articulated by Gilbert Edelson, administrative vice-president of the Art Dealers Association of America, who heralded a return to "common sense since the spring auctions [which yielded fewer sales and lower prices than anticipated]...The upward inflation is over, speculation is out, and buyers are more selective."
Given the general antipathy of art dealers toward the auction houses, Edelson's comments might be taken with a grain of salt. In fact, the end of the frenzied, New York-centered resale activity in which artworks were rapidly messengered from collector to dealer to collector - each making a hefty profit - has been greeted with relief even by some of those doing the reselling. "We made collectors so much money they thought we were gods," laughed private (resale) dealer Jane Rankin-Reid. "Now we'll just be merchants again."
The floor has not dropped out - yet - from beneath primary dealers, no doubt reflecting the more serious commitment demanded from those who help build - as well as profit from - artistic careers. Continued healthy sales were reported by a dozen galleries as different as Feature, Blum-Helman, and Rosamund Felsen (in Los Angeles). High anxiety, however, is also endemic. What Lannan Foundation curator Lisa Lyons termed "widespread apprehension, caution, a wait-and-see attitude," Lawrence Luhring (of Luhring Augustine) translated into the art of the deal: "It's not that we're doing less business now, but it takes longer to make a sale." A surprising number of dealers cited European collectors as crucial to their financial well-being. A depressed dollar makes art bought-in-America a bargain.
While primary-market dealers rightly tend to regard the auction houses as market-destabilizing publicity hounds, their fates are intertwined. Although some primary dealers claim to have benefited from last spring's auction bust, virtually everyone agrees that the November auctions of contemporary (postwar) art are key indicators of what's to come in both markets. As with the stock market, psychology is everything.
The auction houses have done their damnedest to find important works that haven't seen the auction block before and to get collectors to set reasonable reserve prices. Martha Baer, Christie's director of 20th century fine arts, called the November 7 contemporary art sale "one of the finest we've ever offered, including the best Kline we've ever had [and exceptional works by de Kooning, Twombly, Rothko, Pollock, and Bacon]...If this stuff doesn't sell, nothing will." The effects of late-November auctions may not be discernible until postholiday February or March, though.
What about New York's place at the center of the art universe? As a number of New York galleries, including Salander-O'Reilly, Bess Cutler, and Luhring Augustine, clone themselves in Los Angeles (or, in the case of Scott Hansen, relocate), the standard line is that L.A. is less depression-prone, thanks to the always booming entertainment industry and a healthier real estate market. Eli Broad Family Foundation curator Michele DeAngelus's viewpoint is more sophisticated. "The New York dealers come here," she says, "to pick up the Japanese trade, to take advantage of the market that's been developed for New York artists, and because some of them - like Irving Blum - just like to be here."
There are, of course, plenty of L.A. dealers opening in New York (Doug Christmas's Ace Gallery just has), and, infinitely more important, there are plenty of major New York dealers eyeing Europe (John Weber, Brooke Alexander, and JosČ Cobo are floating a joint venture in Madrid, Paula Cooper is "actively looking" for space in Paris, Richard L. Feigen has opened in London and Chicago). The real point is that the economics of art have changed drastically. "When we started six years ago in the East Village," Magdalena Sawon of Postmasters noted, "you could open a gallery for $20,000 to $50,000. Now it takes $300,000 to $400,000." Or as Jane Rankin-Reid observed, "We're all undercapitalized; multinationals were inevitable.
Dirty Dealing, May 26, 1992, p. 105
David Bierk's first solo show at the Bess Cutler Gallery in April 1990 sold out. His second - at the same Soho gallery just seven months later - nearly did the same. "Financial and critical success in New York was a dream," the Canadian painter recalled. But by the summer of 1991 the gallery owed the artist more than $50,000, and the dream had become a nightmare. Despite fears that he'd never see any of the money owed to him, he loaned the gallery $10,000 to help open its Santa Monica branch. As the gallery's debt to him mounted and the check it sent bounced, he obtained a second mortgage on his house and finally contacted a lawyer friend in California. Now gradually being paid by the gallery, Bierk is looking forward to putting this episode behind him. Herb Swartz - as associate of Cutler's whom she put on the phone to speak on her behalf - corroborates Bierk's account of events, although he points out that part of the $10,000 loaned "may have been due" the gallery as the commission on the album cover art Bierk produced for his musician son.
Bierk is not the only artist who's had financial difficulties with Cutler, nor is hers the only gallery that is accused of taking financial advantage of artists. Others who've experienced problems with Cutler's gallery include painter Ken Aptekar, who was paid the approximately $5000 owed him six months after he'd left the Cutler stable in July 1991, and a New Jersey painter (he requested anonymity) who showed at the gallery in 1990 and has begun to be paid, but only after he received three bad checks, physically removed his work from the gallery, and hired a lawyer to threaten legal action. (Swartz: "It's true [in both cases] but the last checks have now been mailed.")
Diane Brown is another gallery owner whose name is synonymous with nonpayment among many artists. Sculptor Wade Saunders is currently suing Brown for almost $22,000 owed him over five years, according to his lawyer, John Koegel. (Brown admits that Saunders is suing her.) A well-known artist just negotiated a settlement with Brown, which came complete with the first of many promised checks. (Brown acknowledges the payment, but claims that the artist in fact owes her money for the fabrication of works.)
Another dozen artists I talked to for this column described difficulties collecting dealer-owed money that were severe enough to prompt suits, or at least to contemplate them. Not one of these artists, however, would put his or her experiences on the record. Why the anxiety? "It's the fear of reprisal by dealers through character assassination," painter Ed Albers observed.
Monitoring bankruptcy proceedings is one of the few ways to pierce the veil of secrecy surrounding art commerce. When Gruenebaum Gallery filed for Chapter 11 protection in July 1988, records show that artist Giorgio Cavallon was owed $174,000, and Esteban Vicente and George McNeil were each owed around $35,000 in undisputed claims. The recent closing of the Vrej Baghoomian Gallery led the artist J.S.G. Boggs to sue the missing dealer for missing property valued at $34,000. Emerging artists are the most vulnerable. As Boggs's lawyer told me, "When you take legal fees into account, sums under $10,000 are barely worth litigating." Artist Penny Mailander ruefully agrees: She won a $2253 judgment against out-of-business dealer Willoughby Sharp in small claims court but says she hasn't been able to collect. (Sharp could not be reached for comment.)
Why - apart from the typical undercapitalization of galleries and the depressed art market - are such problems so common? One key factor is the intense romanticization of relationships between artists and dealers. Artists tend to see dealers as mommy, daddy, or lover, rather than as business agents. "It's not a marriage," attorney Koegel noted, "and I don't think you should confuse an artist-dealer agreement with a prenuptial one."
Like every arts lawyer, Koegel advocates artist-dealer agreements. Most suggest that contracts should be negotiated within the context of discussions regarding responsibilities and expectations about payment, frequency of shows, career goals, and the like. Talking about matters like these at the outset of a relationship may also be the best way to discover what a dealer is like as a businessperson - and as a person. Volunteer Lawyers for the Arts publishes a book called Business and Legal Forms for Fine Artists and handles arts-related legal matters for artists who can't afford legal representation. (VLA can be reached at 319-2910.)
Baghoomian: It's Only Money, October 25, 1994, p. 89
Two and a half years ago, when art dealer Vrej Baghoomian disappeared and his luxe Broadway gallery was shuttered by creditors, art-world tongues began to wag. Some speculated that the Iranian-born dealer left to smuggle guns into Armenia or to launder Middle Eastern drug money; others were certain that he'd fled the IRS or the mob, which later (supposedly) eighty-sixed him in a Pittsburgh motel. The truth is far more prosaic, Baghoomian explained in a recent interview conducted in his current (temporary) Bleecker Street space. Needing a break from snowballing financial pressures stemming from both the art market crash and Jean-Michel Basquiat-related law suits, he went to newly independent Armenia a month before his gallery was forced into involuntary bankruptcy in March 1992. As the 51-year-old dealer put it, "Why come back? My ego was hurt and Rosenthal & Rosenthal [the creditors] had foreclosed my house." (Baghoomian's sojourn in Armenia was confirmed by his lawyer, Dennis C. Trott, by a former employee who requested anonymity, and by London insurance adjusters who reached him there; see below.)
Instead of returning to New York, he said that he went to his brother's house in San Jose in mid 1992 and laid low for a year. "I developed engraving software that I discovered was already available for $20," the former software marketer chuckled. He resettled in New York in August 1993, following a June visit to assist insurers adjudicating Rosenthal & Rosenthal's claim that the dealer had stolen more than 50 artworks. Baghoomian contends that virtually all of those works can be accounted for as sales or gifts, an assertion supported by Michael Waters, vice president of Maxson Young, the adjusters for the London insurers that wrote Baghoomian's dealer's policy. Rosenthal & Rosenthal's suit against Baghoomian is just one of many involving the litigious art dealer. He in turn alleges that 155 works are missing from R&R's assets lists, based on a physical inventory he took this past August. (The finance and factoring company's attorney, Arthur Toback, countered, "We have no reason to believe that any pieces are missing.") These and other contentious matters - R&R has initiated what's known as an adversary proceeding alleging fraud while Baghoomian has countersued, claiming R&R has sullied his reputation - will eventually be decided in bankruptcy court. Trott believes the suits will be resolved next year, but court-appointed trustee Robert Fisher told Art & Auction that he thinks it will take years.
The Basquiat-related suits also continue to dog Baghoomian. Basquiat was the posthumous subject of a 1989 show Baghoomian mounted, and one suit decided while the dealer was in Armenia resulted in a $209,000 copyright-infringement judgment against him - by default - for the unauthorized use of images in the exhibition catalogue. Although he contends that the rest of these cases are in the process of being settled, Robert Cinque, the Basquiat estate's litigation counsel, disagreed. "Rubbish, we've had no discussions or communications with him."
In the meantime, Vrej Baghoomian Gallery Inc. is now open for business. The dealer and his newly hired director, Kathy Brew, are shopping for space in Soho. In a departure for the gallery, Brew is developing electronic, performance, and musical programming. Will Baghoomian's bid to reinvent himself succeed? As Londoner Jane Rankin-Reid, a former New York dealer (and R&R client) observed, "People in New York have short memories. If there's a chance to make money, is there anybody they wouldn't deal with?"