A Bit More on the $8 Million Lawsuit and Blacklists

The Robins-Zwirner court battle stems from a complicated situation, as anyone who's tried to summarize it and then move on to the issues it raises can attest, including me. As noted a few days ago, I'm quoted in an article and have an op-ed (that just came out in The Art Newspaper) on one of those issues. I'll get to the op-ed in a moment, but first I'd like to clarify a few of the ideas in the article. The delightful and extremely hard-working Charlotte Burns writes:

The $8m court case between Miami collector Craig Robins and New York art dealer David Zwirner lays bare the murky intricacies of the contemporary art world. The accusations reveal the secret handshakes, blacklists and verbal agreements that dominate the market, prompting some to say it is time that the whole trade opened up. A few go as far as suggesting legislation such as droit de suite, where artists receive a fee on the resale of their work, should be extended to New York.

While it certainly must seem, from all the press (and obnoxious calls for more) about the lawsuit, that such "murky intricacies" dominate the market, the fact that this case is getting so much attention is due in no small part to its unusualness. And while I will gladly own calling, again, for New York to reconsider droit de suite legislation (or at least some parallel way to ensure visual artists receive resale royalties), I wouldn't put myself in the camp of those interested in seeing the whole trade opened up, per se. Transparency is important, as I've frequently noted and work hard to live up to in my gallery, but seeing "the whole trade opened up" could mean a wide range of things to different people. And personally, I rather enjoy the business-on-a-handshake culture of the art world. It goes, er, hand-in-hand with at least attempting to remind ourselves in the business that it's the art and personal relationships that drives it all, and not just the bottom line.

That being said, and as I noted in my first post on this case, each of the players involved in such battles is being guided/pushed in their actions by a built-in, but unnecessary, secrecy regarding the resale of contemporary artwork. Unnecessary, because there is an established way to include artists in resales and eliminate any urge toward blacklisting collectors. I'll quote from my op-ed that posted today:

If the law required collectors to share the profits from any resale, the gallery would not get caught between the furtive goals of the collector and the wishes of their artist. Indeed, in most resale arrangements all three parties (collector, gallery and artist) could be motivated to work together to ensure each makes the most money possible.

Now, to be sure, like any eventual win-win-win scenario, this would require each player at some point to give up something as well. Artists might need to reconsider lowering their initial prices before they have a strong secondary market to encourage collectors to still take the chance on their work. Galleries would have additional paperwork to do and keep track of and might lose business to other jurisdictions. Collectors would have to share the profits of any resale from their collection. The thing is, though, that if each of the three players works well together, they can all profit more in the end. Collectors will, rather than have artists resent and/or resist their resale efforts, gain a highly credible/helpful advocate for such efforts. Imagine if an artist were publicly to endorse the resale of an earlier work, how much better that would be for all concerned...how much less secrecy/agreements/potential lawsuits would be required...how much more interest could be drummed up by joint efforts...and how much more the piece could go for.

There's another thing in all this that I'd like to clarify though. The perception persists that the dirty little secret of "blacklists" is something the gallery system, in its nefarious murky ways, relishes. This is a seriously misguided read of the case in question. Let's begin with Mr. Finch's take and work back from there:

Funny how the loggorheac know-it-alls of the art blogosphere fall strangely silent when dealer Jack Tilton provides some actual inside information on the confused yet devious way the art world really works, to the point when an ugly concept like "blacklist" dominates all deals, in the blockbuster case of Robins v. Zwirner.

Mr. Finch also uses that word, "dominates" (was there an arts writing teacher somewhere who gave extra points for working that word into a sentence when talking about the market?). He also uses "devious" and "ugly" in painting his picture of the art business. But what he doesn't do is clarify who originally created and maintained the blacklist in question. Here's a clue: it wasn't the galleries. It certainly wasn't Mr. Zwirner. In fact, as the Tilton testimony Mr. Finch wanted everyone to deconstruct revealed, Mr. Zwirner was once himself blacklisted by the very person who insisted on the blacklist. Indeed, the alleged blacklist belongs to none other than the artist.

More than that, though, and very oddly, the name of the artist, Marlene Dumas, isn't even mentioned (not once) in Mr. Finch's piece. He insinuates that it's fear of repercussions from the powerful art dealer being sued that has led the bloggers to avoid the subject --"The whale Zwirner swims at the deep end, and the minnows flee" (see my post from Monday for the real story there), but he never once notes the essence of what the Tilton testimony made all too clear, that it was, as reported by Sarah Douglas, a " blacklist that the painter has been rumored to maintain, which forbids collectors who resell her work from buying new pieces of art." [emphasis mine]

Now, the lawsuit alleges that Zwirner (once he represented Dumas) enforced his new artist's pre-existing blacklist, so there's plenty to think about here all around, but I'd like to see the tone and adjectives used to describe the gallery system and art market in this reporting lightened up a bit. Like I said at the top, it's a complicated case. It behooves everyone watching and writing about it to not project the allegations and/or actual circumstances of this one case onto the entire industry. I'll have more to say on blacklists once all the facts are established, I've talked with other dealers more about them, and this particular case is resolved. As for now, though, I'd rather focus on ways of making them a thing of the past, because, again,

[T]he system of secrets so susceptible to competing interests that the art market uses in place of droit de suite or similar solutions doesn’t seem to be working out so well either. Unless you’re an attorney, that is.