ARTINFO interviews Gagosian HK director

ARTINFO's "Conversations with" series has recently published an interview with Nick Simunovic, the director of Gagosian's newish Asian outpost in Hong Kong. The growing importance of the Asian market and the buying power of collectors in the East cannot be ignored (this blog has followed the trend closely since its launch in September) making the interview not only interesting but also incredibly relevant. In particular, I agree with Nick's view that "to think that every Chinese collector is going to end up collecting Western art is a canard. A small percentage of people will end up doing so, but my guess is that a much larger percentage will stick to what they love and know best: Chinese antiquities and Chinese painting."

UPDATE: could the UK's new Bribery Act 2010 really capture finder's fees?

LONDON. In a previous post, I discussed the UK's new anti-bribery legislation and how according to several commentators, it could be applied to capture certain payments by or to art dealers. I've now had a look at the actual text of the Bribery Act 2010 (found here) and I'm not certain it could be applied to prosecute payments of finder's fees by art dealers. In a nutshell, for the payment to fall under the Act, the dealer must (i) either be expected to act in good faith and/or impartially or be considered a fiduciary of the collector (the Act says one or more of these three conditions but the first two are fiduciary duties already so really it's one or both of conditions 1 and 2 where the dealer is not considered a fiduciary) and (ii) the payment (i.e. the "relevant function or activity" for purposes of the Act) must breach the "relevant expectation" of the person to whom the duties are owed, meaning it was offered, promised or made in bad faith and/or partially or in breach of trust, depending on which condition/s brought the function or activity under the Act. If we look back at the example cited in The Art Newspaper about the dealer who pays a collector's decorator for having aided the sale of an artwork to said collector, not only do I remain sceptical about the dealer being considered a fiduciary, even if he were or, alternatively, one or both of the other two conditions were satisfied, would it really breach the "relevant expectation"? I would imagine these payments are quite frequent in the market and if I were a collector regularly operating in the art market, I don't think that the payment of a finder's fee or the failure to disclose such payment would be contrary to my expectations of the dealer. Pierre Valentin is a leader in the field so am I missing something here? I would be very grateful to hear your views on dealers as fiduciaries of collectors (that is, collectors buying from the dealer as opposed to a collector or artist who consigns art for sale), the prevalence of finder's fees in the market and the new Bribery Act generally in the context of the art market.

"The lines between gallery and museum, corporate and curated, keep getting blurrier and blurrier"

The author Sarah Thornton once described the art world as "a loose network of overlapping subcultures held together by a belief in art." While an astute observation, those overlaps are becoming more frequent and more profound with the divide between the public (institutional) and the private (commercial) becoming ever-more blurred. A corollary of this mish-mash of roles in the art world are the glaring conflicts of interest that arise, a running theme too of this blog (e.g., see here). The latest conflict to catch my eye is the Whitney Museum's announcement that one of the two curators for its 2012 Biennial comes from the ranks of the commercial rather than the institutional or academic sphere: Jay Sanders, "a veteran art dealer who was previously director of New York's Greene Naftali Gallery." On the one hand, the co-curator of the show is clearly conflicted because he has a vested interest in promoting those artists represented by the gallery where he formerly worked, especially given the financial and reputational gains that flow from an artist being included in such a prestigious (albeit controversial) show. On the other, Jay Sanders is, according to ARTINFO, "a highly-regarded art dealer whose sophisticated approach to showing art has been evidenced in such gallery shows as one last year spotlighting the late experimental filmmaker and "flicker" pioneer Paul Sharit." I think in cases like this one a conflict of interest should not trump talent -- careers and talent would otherwise be excessively constrained and wasted -- but Sanders should have left the gallery before last month. Carol Vogel had reported that he left the Naftali Gallery in 2005 but Tyler Green reports that Sanders actually left the art market only last month...

Another auction record price expected, albeit tainted by claims of illicit provenance

2010 was the year of record auction prices: for painting and any artwork generally (the Picasso sold at Christie's for $106.5m); for sculpture (the Giacometti sold at Sotheby's for $104.3m); for rare books (the Audubon classic "Birds of America" sold at Sotheby's for $11.5m) and for Chinese art (the Qianlong vase sold at Bainbridges for $85.9m). The market has undoubtedly shown remarkable depth in buying power emanating largely from Russia, China and the Middle East (it is widely believed that the mysterious buyer of the record-breaking Picasso could only have been either Russian or Middle Eastern) and it is no wonder that this has been accompanied by the rise of art funds, art securitization and even the launch of an art "stock exchange" in Paris.

The Art Newspaper is now anticipating what could be the first record auction price for the new year: £3.5-4.5m for a Benin ivory mask, which would make it the highest price ever paid for an African artwork. The top-end of the market for Chinese art has been dominated by Chinese buyers making patriotic purchases so it will be interesting to see if a similar trend arises in the case of the iconic mask when it is auctioned at Sotheby's in London on February 17. That the mask is believed by many to have been looted by the British "in the infamous punitive expedition of 1897 when the British invaded Benin, looted thousands of artefacts, burnt Benin City and sent Oba Ovonramwen, the King, into exile" makes it much more likely that the buyer will indeed be African. But what of the allegation that Sotheby's is actively participating in trafficking illicit antiquities? When it comes to antiquities, the statistics are staggering -- it's been held that the provenance of approx. 80-90% of antiquities on the market would raise legal issues (S.M. Mackenzie), the resolution of those issues often being impossible given the origins and age of the antiquities. While it would not make sense to freeze virtually all sales of antiquities, sales of those that are suspected to have been illegally exported from their country of origin should not take place unless and until those suspicions are put to rest. Otherwise, the auction houses and dealers involved will be feeding the market demand fuelling looters all over the world (the causal link between market demand and supply for looted antiquities has been conclusively proven in my opinion).

Finally, a serious response to the potentially unconstitutional censorship by the Smithsonian

WASHINGTON DC. Although First Amendment issues generally fall outside this blog's main focus within art law, I had to write this post to commend the Warhol Foundation's decision to pull its funding of the Smithsonian if David Wojnarowicz's 1987 video "Fire in My Belly" is not reinstated in the exhibition "Hide/Seek." The Smithsonian's capitulation to the pressure exerted by the Catholic League and two certain Republican lawmakers (who threatened to pull federal funding of the nation's preeminent art institution) by conceding to the removal of the work from the show is a lamentable assault on the First Amendment. Protesting liberals have since voiced their concern about this infringement of the nation's most sacred constitutional right but none have gone as far as the Warhol Foundation. It's all very well to protest and point a finger but what was really needed was a serious and genuinely meaningful reaction like the Foundation's. Artworld Salon commends it and so do I. I just read in The Art Newspaper that "Jim Hedges, a hedge-fund specialist and art aficionado, has written to Martin Sullivan, director of the National Portrait Gallery in Washington, DC, requesting that his loaned work "Untitled, Self-Portrait" by Jack Pierson be removed from the Hide/Seek NPG exhibition "until such time as the David Wojnarowicz video is reinstated in its full unedited version."" Hedges is also urging others who have loaned works to the institution for said exhibition to do the same. Another commendable reaction. The one I'm most hoping for is a constitutional attack on the institution's conduct in a court of law. Question is whether a federal court will hear such a claim. The constitution applies to governmental actors so the fact that the institution receives federal funding will help but who will have standing to bring the claim? The deceased artist's estate on his behalf is the best bet but potentially others too. Do we think the courts will rule that the video is "hate speech" (i.e. unprotected speech under the First Amendment)? Hopefully a landmark decision for the arts and for our constitutional right to freedom of speech.

UPDATE: artist AA Bronson had asked that his work be removed from "Hide/Seek" in protest of the Wojnarowicz debacle arguing that to not do so would violate his moral rights under Canadian and US law. Sergio Sarmiento (author of the blog "Clancco" and Associate Director of the VLA) and Donn Zaretsky do not agree at least from a US law perspective. Sergio writes: "it does not seem to us that under the 1990 Visual Artists Rights Act the NPG would be violating Bronson’s moral rights simply by exhibiting the work within a context and/or exhibition that Bronson did not like or approve of. If this were the case, artists could dictate and–ironically–censor the speech of individuals whom they did not identify with ideologically. Interesting move though."

New anti-bribery legislation to change the way dealers earn commissions

LONDON. The Bribery Act 2010, which is set to come into force in the UK next year, is likely to change the way dealers do business in the UK but potentially also abroad given its wide territorial reach. The payment of commissions will continue to be a legitimate business practice though subject to increased scrutiny; the payment of finder's fees, on the other hand, will require disclosure to and consent from the collector or otherwise constitute "bribery" under the new legislation. The example cited in the article is illustrative: if a dealer were to pay a decorator a commission for making possible a sale of a painting to the collector the client of the decorator, the dealer would have to disclose the payment to the collector and it seems also obtain his consent. The rule is an "information-forcing" rule in that it penalizes the failure to disclose certain behavior thus forcing the payor (what about the payee?) to reveal what lawmakers consider to be "improper performance." However, the example is not correct if, as the article also states, the Act captures payments to (and by?) intermediaries "owing a duty of trust to art collectors" -- I don't think dealers are fiduciaries of art collectors (at least not in the US) but I will look into it.

Other crucial details of the legislation include the fact that it is a strict liability offense (i.e. the prosecution need not prove intent, only that the defendant's conduct was that prohibited under the Act) and the maximum penalty is ten years' imprisonment or, in the case of an organizational defendant, unlimited fines. The first of these is particularly important because intent is the hardest element to prove in a fraud action and the enactment of the Act will mean individuals can instead be charged and prosecuted more easily for "bribery."
That the Act is not aimed at the art trade but at eliminating corruption generally does not preclude it being applied to prosecute those operating in the art world. As Pierre Valentin (leading art lawyer of Withers, London, and cited in Art Meets Law on other occasions) warns: “it only takes one prosecutor to receive a complaint from a collector or a dealer in competition with another dealer for an investigation to be launched.”

I am currently traveling but when I return, I will review the legislation itself and update this post. I will also look into whether dealers owe collectors a duty of trust and are therefore held to the highest standards at law. I know auction houses do owe their clients (i.e. those consigning art to the auction house for purposes of selling it) a duty of trust but I was under the impression no such duty was imposed on dealers or galleries, the policy reasons being that such actors, unlike auction houses, are not "affected by a public interest" (Cristalling case) and it would be unduly onerous to hold dealers and galleries to such high standards. In the US, to mitigate the effect of this general rule, the majority of states have passed "consignment statutes" that impose a duty of trust on dealers and galleries when artists consign their work to them for sale. However, where such a statute applies, the duty flows to the artist and not to the collector buying the art. The principal of caveat emptor -- "buyer beware" -- is just as relevant to art sales as it is to real property sales and save for known defects, the person selling the art does not owe any dutires to the prospective buyer.

In the art world, everyone is in bed with each other anyway

This week the Guggenheim Museum Bilbao defended an upcoming exhibition of artworks belonging to a museum trustee, Greek businessman Dimitris Daskalopoulos. The director of the Guggenheim Foundation, Richard Armstrong, said the show will be presented "with huge integrity" but there's no way around the fact that the museum has a "huge" conflict of interest in deciding whether to showcase a trustee's work. The art world is a breeding ground for conflicts of interest: art dealers are invariably art collectors, at times competing with their own clients over an artwork (case in point, Larry Gagosian); a former gallery owner goes on to become the new head of a major institution on the West coast (Jeffrey Deitch named new director of MOCA); an art critic is simultaneously the managing director of two commercial art fairs (art critic for the Village Voice Christian Viveros-Fauné, also managing director of "Volta" and "Next" fairs)... The truth is that the art world is small, very knowledge-intensive and poorly paid - can you blame an art critic for supplementing his earnings as a journalist with earnings derived from other art-related activities? And what of the art dealer or museum trustee who is also an art lover and major collector? As the saying goes, in the art world "everyone is in bed with each other."

The question is how to deal with the conflicts of interest rather than trying to avoid each and every one of them all together (sorry but you just can't, granted some conflicts do have to be prevented e.g. art fund managers valuing the art securitized for investment purposes). At the very least, there should be full disclosure of the conflict but depending on the conflict, affirmative checks are likely to be warranted. For example, when Deitch became the new director of MOCA it was on the condition that he divest his collection and though many were appalled by the appointment, I found it brave and possibly genius especially since the institution was in dire need of successful management having been mismanaged for years and nearly going under. In the case of the Guggenheim show, there has been complete transparency and the choice of curator makes it stand in stark contrast to the "Skin Fruit" show at the New Museum (it's hard to think of a more conflicted person to curate "Skin Fruit" than Jeff Koons, whose every period was represented in the collection and who was also a personal friend of Joannou). Another safeguard is the agreement between Daskalopoulos, the Guggenheim and the Whitechapel Gallery restricting the collector from selling any of the works from the exhibitions for a period of three years following their display. The agreement is better than nothing but I don't think it prevents Daskalopouls from realizing the financial gains to be made as a result of the works being exhibited at two major institutions. In three years time the gains may not be as great as if the benefactor had sold a piece during the running of the show but the market price will almost certainly be inflated and Daskalopoulos free to reap the benefits should he want to. Three years seems like an arbitrary number and not nearly long enough but if someone were to propose five it would seem equally arbitrary. No number of years can change the fact that the works will have an institutional "imprimatur" almost certain to increase their market price and you can't (legally) alienate the property indefinitely. There's just simply no complete way around these issues but personally, I'm satisfied the Guggenheim has adequately dealt with the conflict and I don't think it's a strong enough reason to oppose the exhibition.

European Commission declares light and video-sound installations not "art"

The classification is crucial for it means that "full VAT (value added tax, which goes up to 20% next year) and customs dues" will be payable when video and light works are imported from outside the EU to any EU member state since the decision is binding on all members. In this case, the works in question were six Viola video-sound installations imported by Haunch of Venison from the US in 2006 and a Flavin light sculpture. Had the European Commission agreed with the UK's VAT and Duties Tribunal that ruled such works were indeed "art", their import would only have given rise to a 5% VAT charge. The Art Newspaper reports on the questionable grounds for the decision and includes commentary from leading art lawyer Pierre Valentin (of Withers, London).

Spain and Thyssen-Bornemisza seek review of jurisdictional question by US Supreme Court

Defendants in the Cassirer lawsuit to recover Pisarro's Rue Saint Honoré- après-midi, effet de pluie (1897) have filed a petition to the US Supreme Court to review the Ninth Circuit Court of Appeals decision ruling that Spain and the Thyssen-Bornemisza Collection Foundation, an instrumentality of the state, are not immune from civil suit in US courts under the "expropriation" exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605(a)(3). Claude Cassirer sued defendants in 2005 to recover the painting which his grandmother, the late Lilly Cassirer Neubauer, was allegedly forced to hand over to the Nazis in exchange for the right to flee Germany.



Camille Pissarro Rue Saint-Honoré, après-midi, effet de pluie 
(1897)



The question of immunity is central to the lawsuit moving forward since case law dictates that the sole basis for invoking jurisdiction over a foreign state in federal court is the existence of an exception to the FSIA. The "expropriation" exception provides that "a foreign state shall not be immune ... in any case... (3) in which rights in property taken in violation of international law are in issue..." Defendants argue that they are immune because they were not party to the expropriation -- Nazi Germany was -- and that they merely bought the painting years later. However, on a plain reading of the statutory language, there is no express requirement that the defendant nation be the entity that took the property in violation of international law. All parties are in agreement that neither Spain or the Thyssen-Bornemisza are responsible for the looting of the painting but rather Nazi Germany is solely to blame. But the question for purposes of determining the jurisdictional question, is whether the property the subject of the litigation was taken in violation of international law and the answer to that seems to be a resounding yes. The only other requirement under the "expropriation" exception is that either (i) the property be located in the US in connection with commercial activity (which it is not for the painting is on display at the Thyssen in Madrid) or (ii) the defendant be an instrumentality of the state (which the Thyssen is, with several government officials serving on its board as required by law) engaged in commercial activity in the US. Further to the limited discovery allowed by the court, plaintiff was able to amply demonstrate this with reference to the museum "transacting business as a purchaser and seller of goods and services and as an advertiser in distributing marketing and other commercial promotional materials" (see complex litigation post).

Regarding the defendants' other argument based on the purported requirement that plaintiff exhaust all foreign remedies, again they are reading words into a statute that is unambiguous. If Congress had intended the exhaustion of foreign remedies to be a condition precedent to invoking the jurisdiction of US federal courts, it would have drafted the statute to that effect. A fundamental principle of statutory interpretation is that courts, in giving effect to Congress' intent, must give statutory legislation its plain meaning and it would be a flagrant violation of the separation of powers if a court, including the highest court in the country, were to effectively re-write an unambiguous piece of federal legislation (or state legislation for that matter). Yet, where legislation is silent as the "expropriation" exception is with respect to exhaustion of remedies, the Ninth Circuit Court of Appeals cited the Sarei case (550 F.3d at 828) which established that "where principles of international comity and rules of customary law require exhaustion," court should exercise "sound judicial discretion and consider exhaustion on a prudential, case-by-case basis." The district court had failed to engage in such prudential analysis and the Court of Appeals remanded the case instructing the district court to consider exhaustion of remedies to the extent affirmatively pleaded by the defendants. Instead, the Supreme Court will have the final word on the jurisdictional question following defendants' filing of a petition on December 14.

But what do we make of the merits of the case and the very fact that this case is being litigated in the first place? On the former, the Art Newspaper reports that "Spain and the Foundation commented publicly for the first time on the factual background of the claim, saying that historical evidence shows that in 1958, Lilly Cassirer received full payment for the work at its then fair market value, under a legally binding, court-approved final settlement of a lawsuit over the painting in Germany. The settlement barred her from any future restitution claims to the Pissarro, they say, and also resolved a competing claim made by another German Jewish family to the same Pissarro painting." But if that's the case, surely Spain and/or the Thyssen would have informed Claude Cassirer of the settlement and he would not pursued expensive and lengthy litigation? And if the evidence did not sufficiently support the existence and substance of the 1958 settlement, I would have expected Spain, a country known for its commitment to the restitution of Nazi-looted art and a signatory to the Washington Principles on Nazi-Confiscated Art, to have returned the painting without the plaintiff having to resort to litigation. Assuming the US Supreme Court resolves the jurisdictional question, as I believe it will, in favor of the plaintiff, it'll be interesting to see what evidence is presented by each side when the case finally gets to the merits stage of the proceedings.

It was only a matter of time: art "stock exchange" due to launch in Paris

The notion of art as an alternative investment asset class is gaining unprecedented momentum this year: record auction prices were set for painting, sculpture, rare books and Chinese art; several market participants (and Russian regulators) affirmatively backed the rise of art funds and art securitzation (see for example, Deloitte Art & Finance conference and Skate's new art securitization services) and now Art Exchange is launching a "stock exchange" for works of art in the coming days. The exchange will function just like a traditional stock exchange except investors will buy shares in publicly listed artworks instead of companies. Participating galleries will sell artworks valued at €100,000 or more (similar to the concept of the minimum "market capitalization" for a company's shares to be publicly traded) and investors will be able to acquire shares initially valued between €10 and €100 per share. So far, six Parisian galleries and six artworks (4 are unknown, the other two are a Sol LeWitt and a Mike Kelley installation) are lined up for the launch of the exchange though its founders intend to enter the US, UK and Chinese markets. Aside from a 5% commission payable to the exchange, participating galleries have little to lose (at least financially) since they are entitled to retain the proceeds from any shares sold if after six months fewer than 20% of shares are sold and the work is "returned" to the gallery. The risk of a work being de-listed is borne by the investors (presumably a sunken cost for them as I can't imagine the idea being that they hold illiquid shares). However, investors also have the option to purchase a work outright once they acquire an 80% stake plus share prices will be publicly available at http://www.aexchange.net/ as the exchange will be "completely transparent" say its founders.

Whether or not the commoditization of art is loathsome to you, it cannot be denied that art will play an increasingly important role in the diversification of investment portfolios as returns on "blue-chip" works continue to rise and, crucially, returns on traditional investments traded on the stock market continue to be volatile, stagnant or decline further. It's a difficult debate: the appeal of the egalitarian principle that anyone can own a "fraction" of a Rembrandt (just like through an art fund or art securitization) vs. the slippery slope of art being reduced to dollar signs. One of my biggest fears is the impact the exchange will have on the long-term career of a living artist whose work is traded (interestingly, one of the two known artists whose works will be traded is living whereas the other is not). The hazaards of a living artist getting "burnt out" on the secondary market are well known and something tells me that trading works on the exchange with prices fluctuating daily will put enormous pressure on the artist and undoubtedly affect how and what art he/she creates.

First the former electrician, now the chauffeur. Just how generous was Picasso?

FRANCE. When I read about the French government's seizure of 271 Picassos worth an estimated $79 million from the artist's former electrician pending investigation of their provenance, I initially decided not to cover the story because the likelihood of 271 never-before-seen authentic Picassos making their way into the market seemed so small. Undoubtedly, the story would make a fascinating civil and/or criminal case -- Le Guennec was Picasso's electrician for just 3 years and there are allegedly no written records meaning the decision will ultimately rest on an assessment of the artist's practises. However, the fact that only one of the 271 works was signed and dated, combined with the peculiarity of it all, suggested to me that only a very mild interest by the art market was warranted at this stage.

Then a second related story came to light -- the unexpected withdrawal from auction of several Picassos given by the artist to his former chauffeur and bequeathed to his wife, Jacqueline Bresnu, cousin of Le Guennec -- and I knew then that I had to cover both! The heirs, which include Le Guennec and his wife, decided to postpone the sale unexpectedly without giving any explanation. ARTINFO reports: "Drouot auctioneer Pierre Blanchet told Libération that "there is no problem with provenance or authentication" and that "the sale will probably take place in another three months." However, it is not known whether Claude Picasso, the only heir recognized by the Picasso Administration to have the authority to sign certificates of authenticity [meaning he holds the droit morales for the artist] authenticated the Bresnu collection. Maya Widmaier-Picasso, the artist's daughter, participated in writing the catalogue for the Bresnu sale, copies of which are now."

The market loves a good story and it doesn't get much better than this so expect higher prices than would otherwise be the case if and when any of these works make it to auction.

Miami Heat?

Links to cliff notes on Art Basel Miami 2010.

• Artworld Salon's debrief. More favorable press for Edward Winkleman and partner galleries' new venture: "Seven: Admired newcomer. Innovative team salon approach seems to be working. Likely to be imitated."
• The Art Newspaper's Art Basel Miami Beach Daily Edition
• Did Miami Basel prove the market is back?...
• ... Not according to the NY Times though "in some peoples’ eyes, a positive consequence of the slower pace is that institutions have more of a chance to buy."
• Online catalogue of galleries

UPDATE: Fisk appeal could mean it ends up with nothing

I guess I spoke too soon when I posted that the fate of the Stieglitz Collection (and Fisk University) was finally resolved. Fisk University has announced that it will appeal the Chancery Court's decision allowing it to sell a stake in the Collection subject to Fisk having discretionary use of only $10 million of the proceeds and the balance being placed in an endowment fund to be used solely for the costs of displaying and maintaining the art. I agree with Fisk that the $20 million endowment is excessive for purposes of maintaining the 101-piece Collection (as mentioned in my previous post and now confirmed by Fisk's estimate of annual costs at $130,000). Surely the Court can come up with a plan that makes far better (and more logical) use of the proceeds. But appealing the decision does of course mean that Fisk is taking the risk of being left with nothing, a very real risk in fact given how erratic and unpredictable the Chancery Court's decisions have been since the summer.

"The world didn't come to an end"

LONDON. The title makes reference to the experience to date of the UK Museum Association's ("MA") "relaxed ethical stance" on deaccessioning since its adoption in 2007. The UK's experience illustrates how "slippery slope" arguments against taking this position on deaccessioning don't necessarily hold true, at least not in all cases. In an article in The Art Newspaper, the MA's head of policy Maurice Davies defended the organization's stance against the strong criticisms and concerns of museum directors worldwide who called for greater safeguards to prevent the dissipation of public collections. The deaccessioning debate has resurfaced recently in the UK with the announcement of the seminar on the subject to take place at the National Gallery on May 10, 2011. To read more about the proposed schemes that will be debated click here.

The current restrictions in the UK are "voluntary and depend largely on moral persuasion" which may make the "deaccessioning police," as Donn Zaretsky calls the contingent, uneasy but in my view, are preferable to blanket prohibitions against deaccessioning (for example, to cover operating expenses) that place little, if any, faith in museum trustees to do their jobs. Yes deaccessioning practices should not be left unchecked but checks should be flexible enough to consider proposed sales on a case-by-case basis. The expert panel idea has been proposed before (I was a fan, as was Judith Dobrznski) but I appreciate the comments made in the article that at least in the UK, there are enough committees as it is and plus, an expert panel would require the enactment of legislation.

Cutting out the "unscrupulous" intermediary

LONDON. Stories of artists being hard done by their dealers are well known: the artist is a starving genius, the dealer, an unsavory intermediary operating freely on an opaque and unregulated market. As a result, artists are increasingly exploring alternative ways of selling art that challenge today's traditional model such as direct sales from the artist's studio (it's worth noting that collectors, tired of "blacklisting" practises and snooty art world conventions, are likewise often eager to cut-out the middleman). All Visual Arts ("AVA"), a "commissioning agency" launched in 2008 by hedge fund billionaire Mike Platt and art dealer Joe La Placa, represents a recent venture moving away from the artist-dealer consignment model towards the "old days of art patronage." AVA provides its artists (currently six, all British) with upfront funding on a long-term basis and then lines-up buyers, "offsetting the advances against a final sale price and splitting the excess 50:50 with the artist." So in fact the only real novelty of the venture is the upfront funding since the 50/50 split is already the standard in the market (the 70/30 split referred to is not and for the sceptics out there, see Edward Winkleman in defense of the 50/50 split). Notwithstanding the reality that there can be no creation of art without the necessary funding, I fear AVA-participating artists may be trading-in the routinely overlooked important functions of a dealer for the sake of short-term financial stability. Case in point: the sale of seven Wateridge paintings to François Pinault, two of which sold for 10 times their price before AVA's involvement. This to me suggests that AVA is possibly more concerned with maximizing financial returns in the near future (understandable given its upfront investment in the artist) than with "placing" an artist's works with a view to ensuring his/her long-term career and ultimately gaining institutional recognition. To increase the going-rate for Wateridge's works tenfold may sound fantastic now but there's a real risk that the artist will not be able to sustain the market at that level and he will crash and burn just like others have in the past (e.g. Cecily Brown at the hands of Gagosian). Not to mention the impact this arrangement could have on the artist's creative freedom of expression for as Rebecca Salter points out, there may be "eventual pressures on artists to produce work guaranteed to sell" (a phenomenon that arises more and more with living artists selling on the secondary market in the past traditionally reserved for deceased artists). That's putting an unwarranted amount of faith in the market to distinguish between a passing trends in taste and truly great art.

ART PICK OF THE MONTH (Dec. '10)



Tips for Artist's Who Want to Sell (1966-68)
(Image courtesy of The Metropolitan Museum of
Art and © John Baldessari)

   "John Baldessari: Pure Beauty" 

      Metropolitan Museum of American Art, New York 

      Through January 1, 2011

One word to describe the Met's major retrospective of the SoCal pioneer of conceptual art: "EDIT!," both in terms of the quantity and quality of the works displayed. The exhibition spans from the hugely prolific artist's earliest surviving paintings (in 1970, he burnt and destroyed the works painted between 1953 and 1966 as part of the piece titled "The Cremation Project") to his most recent works with what appears to be very little editing in-between. I find excessively voluminous surveys tend to be a sensory-overload which leave you with only a faint recollection of individual works but in this case, the lack of editing is especially unfortunate since on the whole the later works are, in my opinion, not nearly as insightful or innovative as those produced in the 60s and 70s. That was the period during which the artist lived isolated from any (East coast) art scene, enabling him to create art free from judgment or rejection. In this regard, I agree with Jerry Saltz' review though I don't see 1980 as being such a clear-cut turning point in the quality of Baldessari's work. 

Highlights of the early period include the photo-text works, where the artist experiments with  textual versus visual language and a method of disclaiming authorship in a traditional sense by outsourcing the texts to local painters (either the paintings are left unsigned or the text itself attributes authorship to the local painter). The photo-texts accomplish exactly what Baldessari set out to do: that is, to make things "look simple but to raise issues, and to have more than one level of comprehension." The choice of photography as the visual language most people understand best and its juxtaposition with poignant texts appropriated from existing popular sources results in wonderfully thought-provoking works; the accompanying humour and wit -- purportedly never the artist's aim -- are an added bonus. Other texts such as the one featured in the image above touch on art maxims that go to the heart of the meaning, creation and consumption of art -- issues that are even more pertinent today with the consolidation of a globalised multi-billion dollar art market. The smaller but no less appealing pieces composed of series of miniature photographs ("Aligning Balls" (1972); "Goodbye to Boats" (1972-73); "A Movie: Directional Piece Where People are Walking" (1972-73)) are charged with a charming innocence and touching sentimentality. These "small masterpieces" beautifully depict movement (hand waves, clouds, a floating balloon, passersby walking) and the emotions bound-up in the movement (pain, anxiety, expectation, loneliness). To be sure, the simplicity of many pieces would not be so effective were it not for the corresponding titles; the two are inextricably linked and essentially continue the theme of textual versus visual language.

By the time you reach the fifth or sixth gallery (this likely roughly coincides with Saltz' "1980" defining moment), the movie stills -- always a rich source from which Baldessari appropriated images -- take center stage and the style becomes repetitive, far less conceptual and in most cases, devoid of any real meaning or emotion. The stills or photographs that are combined with splashes of color (for example, spheres of color covering the faces of the  human subjects) say little or nothing to me, granted the titles do help make the experience more worthwhile. There are a few exceptional works in the last few galleries: in "Man and Woman with Bridge" (1984), the subjects are not the man and the woman looking into each others eyes but rather the space between them, filled by a superimposed image of a wolf making its way across what looks like a log on a misty night. According to the artist, whether two people are apart because they are attracted or repulsed by each other, a magnetic field is created in the space between them and the choice of filling such space with a wolf is genius. However, I don't think I would have found the work as captivating had it not been for the accompanying notes explaining the concept behind it. Other noteworthy pieces are those reminiscent of the "small masterpieces" where color is used one again as the fluid, unifying link between a series of small photographs (in "Five Yellow Divisions: With Persons (Black and White)" (2004), a yellow line flows from image to image filling the familiar subject of the space between people).

For those who have not yet seen the exhibition, make sure to leave plenty of time or alternatively, skim through the final galleries. And be sure to pay close attention to the titles and notes -- without them the concepts are often lost and the experience is largely forgettable.