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. ;-)