Wednesday, March 31, 2010

A Dependency on a Lack of Transparency

A well-respected New York art critic once confided to me that, in their opinion, dealers have the toughest jobs in the art world. I am normally working too hard to stop and give that notion much thought, but in writing my book (yes, it's still available and makes a lovely Easter/Passover/Spring/Thursday present) I noted how a dealer has two main sets of clients (collectors and artists) and how pleasing both can often present dilemmas. This was my first thought when reading about the lawsuit recently brought against the David Zwirner Gallery. The story was broken in The New York Post, of all places:
A Chelsea art gallery was slapped with an $8 million lawsuit yesterday by a collector who claims its owners blabbed to a painter that he had sold off one of her works -- landing him on her "blacklist."

Craig Robins alleges that the David Zwirner Gallery breached a confidentiality agreement by telling artist Marlene Dumas that it helped him unload her 1994 painting, "Reinhardt's Daughter."

Robins' suit, filed in Manhattan federal court, seeks $3 million in compensatory damages, plus $5 million for what he calls the gallery's "reprehensible motives" and "wanton dishonesty."

Robins, a real-estate developer from Miami Beach, says the artful deceit was part of the gallery's plan to "gain favor" with Dumas in the hope that she would ink an exclusive-representation deal with it.

[...] At some point, Robins learned he had been blacklisted by the artist -- barring him from directly buying from her representatives. Suspecting it was because he had sold one of her works through the gallery, he went there to see who had blabbed to Dumas.

The Chelsea gallery then "apologetically and unequivocally" admitted that it had told Dumas about Robins' 2004 sale of her painting, the suit says.

Robins claims the gallery "disingenuously" promised to get him off Dumas' blacklist so he wouldn't sue them. The gallery also allegedly offered him first crack at any of Dumas' pieces not bought by museums.

But the gallery "failed to respond" when Robins said he wanted three paintings from her current show last week, the court papers say.

And Robins says he "still remains on [Dumas'] blacklist and . . . has not been granted full access to [her] primary market works."

Zwirner spokeswoman Julia Joern said, "The gallery believes that the case has no merit and plans to vigorously defend itself against Mr. Robins' baseless allegations."
More than just a casebook example of how a gallery can land between a rock and a hard place in trying to please two clients with conflicting interests, this contemporary cautionary tale (as reported) manages to make all three parties look kind of bad.

First and foremost, it makes the gallery look bad. If you sign a confidentiality agreement, then, you are bound not to spill your guts. That part seems straightforward enough. Secondly, the artist doesn't exactly look too good in all this, either. While it's certainly understandable that Ms. Dumas doesn't want her collectors flipping her artwork, if she blacklisted everyone who's been selling her work just at auction (let alone privately), she'd risk alienating quite a long list of collectors. Artfacts lists over 320 lots of mostly minor works. Finally, though, the collector seems to have been willing to ignore the breach of contract (the confidentiality agreement being broken) when the gallery had promised to get him off the blacklist, so it's not like the lawsuit is being brought on principle.

Again, this assessment is based on how the story was reported, and, well, let's just say that I wouldn't be at all surprised to learn the details told a different story. Still, it looks as if there are plenty of questionable (if not quite "reprehensible") motives involved throughout.

Now, despite not knowing the details involved, I've been at this long enough to know that all three parties would more than likely protest my assessment of their actions here. The gallery would insist that it's much more complicated (and, well, it generally truly is, although not in a way that entirely exonerates the gallery usually); the artist would likely insist that the collector was the first to offend and that blacklisting him was her only real defense against such behavior (and, again, some well-considered droit de suite laws would be so helpful here); and the collector would likely argue that he shouldn't have to apologize for doing what he wanted to with his property and that the gallery was obligated to keep quiet to prevent just this scenario.

What none of that covers, though, is why the system seems to go all pear-shaped as soon as a little transparency enters the picture. [I'll project a bit here to make my point, acknowledging again that I don't have access to the details.] The fact that the collector felt the need to keep something quiet that he feels is his right to do [resell his property]; the fact that the artist clearly valued the information that was being kept secret; and the fact that the gallery was reportedly willing to break a confidentiality agreement toward another business objective all call for more transparency, to my mind. Had the collector's resale not carried a stigma, had the artist benefited from the resale, and had the gallery not been placed in the precarious position between the two clients, the lawyers who are now going to make a small fortune off this case would be busy with other more important matters.

But that's not how it works. A reliance on keeping things hush-hush is built into the system. You almost begin to suspect an attorney-authored conspiracy. ;-)

Labels: art market, art practice, gallery contracts


Blogger Mark said...

It all seems so superficial of course until the amount of money involved in these transactions. I must say I like some of her work but this show was a bust for me, sorry it's just lame painting. I don't get the frenzy.

3/31/2010 10:23:00 AM  
Blogger Iris said...

It's always safe to say "an attorney-authored conspiracy" especially in this case where the plaintiff is also a lawyer ;-).

However, as lame as the 'rules' are, and I personally agree with the idea of transparency, and as distasteful and lame the lawsuit and the artist's response, it was the gallery who breached the agreement. I'm sure in most cases they would have find any reason to protect the confidentiality rule to protect their own interest. The artist has every right to ban, the buyer to sell. Gallery should have kept their side of the bargain, just shows what people will do out of greed.

3/31/2010 10:51:00 AM  
Anonymous Anonymous said...

It's hard for me to get worked up about this. This gallery and artist are in the stratosphere of earnings, a tiny percentage of the artists and dealers out there. Collectors can't buy the art? They can't sell it? Artists sue dealers for selling their work? This is more of a teapost tempest than the blogo-dogs from yesterday--except of course that more money is involved.

Of course we want artists and dealers to behave ethically, and most do. This fringe situtation doesn't really change that.

3/31/2010 11:16:00 AM  
Anonymous matt said...

Assuming the buyer didn't sign an agreement not to be able to re-sell, he has every right to what he will with his property. Assuming the gallery broke their agreement, then they are in the wrong. The artist is just sticking their nose into a place it really doesn't belong. Of course, none of us really know all the facts as Ed points out.

3/31/2010 11:29:00 AM  
Anonymous Anonymous said...

What a crazy business.

3/31/2010 11:36:00 AM  
Anonymous Cedric C said...

Maybe there is something I'm not getting right, but I would be kind of upset as an artist that both my dealer and "my collector" (someone who pretends to admire my work) sign a contract specificating that I should not know the details about the sale of one of my work.

Maybe I'm fabulating, and the artist's name is not specifically mentioned in the contract. Then they'll make her appear as an insider, thus, no breach.

Cedric C

3/31/2010 01:19:00 PM  
Anonymous Cedric C said...

Can an artist request from a dealer to never accept confidential contracts when selling their work? Maybe that would evitate some trouble.


3/31/2010 01:24:00 PM  
Anonymous Larry said...

I don't find the artist interesting at all, but that's besides the point. So the collector, having sold one of her works, is upset because he can't buy more? These stratospheric amounts are much too rich for my blood and each side sounds either greedy (collector), petty (artist), or dishonest (gallery). Sure, a droit-de-suite law could have gone a long way towards defusing the situation, but since we ain't got none of that, the collector cannot IMHO be blamed for re-selling unless his contract expressly forbade that, and he has the right to expect the confidentiality expressly agreed to.

3/31/2010 01:51:00 PM  
Blogger Brent said...

Oh what a mess! It sounds like everyone needs to take a deep breath and take their fingers off the "launch" buttons.

Yes, the gallery shouldn't have violated the confidentiality agreement (and a contract no less).

Yes, the collector shouldn't have sued. Especially with the corroborating information Ed supplied. And what sort of contortions are required to justify $8M of damages?

Yes, the artists shouldn't make it a habit of blacklisting patrons who resell the work.

It all speaks of a basic lack of trust, a fear of being ripped off or losing out on income.

I see how up-front transparency and the trust it creates would make this exact situation impossible, or reduced to a pout rather than a giant steaming mess.

3/31/2010 03:16:00 PM  
Anonymous Brock Sampson said...

I would very much like to hear from your POV, Ed, what the issues are from the perspective of each party that is involved. Furthermore, what you think the ramifications are for the actions of each person involved.

This I think is a good place for an open talk about the concerns and intentions of three different aspects of the art merchant/collector/artist relationship are stressed.

Also sounds like a good book or tv series. I could see it being like Damages, only Glenn Close is the dealer, Donald Trump is the collector and Bill Powhida plays himself.

3/31/2010 05:19:00 PM  
Anonymous Cedric C said...

When you have 10 collectors interested in your work, and some are special fans devoting their passion to present your art in museums, while others simply hope to make a quick penny at auctions, than yes, as an artist you have the luxury of blacklisting clients. Most artists don't have that luxury, but perhaps Dumas does. It really depends on the wanton around the artist's work.
I totally understand that as a buyer, I have to convince a seller that I'm the right person to get what not many people are going to touch, and at some level, it is not about money anymore.

Of course, if I have bought for years from a same artist and seller, and the seller and artist decide to dump me because another collector has promissed them that they'll be their next biggest client, it's unfair. And it's very different if I only sold 1 piece from an artist when I'm keeping 30 others. We are missing details about this affair.

I'll be very surprised that the collector gets his 8 millions even if he wins. He's pulling a leg hoping to get a smaller amount.

Cedric C

4/01/2010 12:17:00 AM  
Anonymous Cedric C said...

Oh but: how could you be an old collector of an artist and own over 30 works from them and still remain, or even request to remain, anonymous???

What is this, Cyrano De Bergerac bullshit??

Cedric C

Cedric C

4/01/2010 12:33:00 AM  
OpenID b. whitaker said...

i'm just so confused about the $8M figure that it's almost like everything else is irrelevant. i'm not familiar with the artist's work, so i'll google her in a bit. perhaps that's what she was after in the first place.

4/01/2010 07:38:00 AM  
Blogger tony said...

I met Dumas a couple of years back & she struck me as a pretty straightforward individual who would have a tough time handling the deep & dark currents which run through the commercial side of the art business.

At the time she said that whilst she appreciated the attention (and the financial rewards) her work was getting she was sad that many of her friends could no longer afford to buy her work.

Contracts & exclusivity are not the natural bedfellows of transparency & honesty.

4/01/2010 08:51:00 AM  
Blogger Christopher/Mark said...

"she was sad that many of her friends could no longer afford to buy her work".

If they are your friends, dear, GIVE it to them.

This entire story is so tasteless.

4/01/2010 02:10:00 PM  
Blogger tony said...

To Christopher/Mark, I agree except that she suggested that she had signed away the rights to all her works & there was a further suggestion that in the past she had given works to friends which not long after found their way onto the market. It ain't easy being rich & famous.

PS I looked at your blogger page & saw two photographs of Forster taken at Cambridge in the seventies. Around that time there was a painter called Mark Lancaster working in England & I remember seeing a show of his at the Arnolfini in Bristol & I believe he did a residency at Cambridge. Should that by any chance be you I did enjoy the work -especially the "Henry V ?" works.

4/01/2010 03:32:00 PM  
Anonymous Anonymous said...

"she was sad that many of her friends could no longer afford to buy her work"
Good grief.

4/01/2010 03:42:00 PM  
Anonymous Anonymous said...

By the way tony, that "good grief" is not directed at you- I appreciate you sharing your experience. It's just that I find such a statement disingenuous, especially in light of this article. Perhaps I'm just too cynical.

4/01/2010 06:47:00 PM  
Anonymous Anonymous said...

i read that Zwirner just bought an $8 million building on 20th st. for his secondary market biz.

The rich get richer...

4/02/2010 12:15:00 PM  

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