Break on Through (From the Outside) Part I


In Part I of this panel discussion on the rise of Outsider Art held at Sotheby’s Institute of Art, Andrew Edlin, CEO of the Outsider Art Fair, provides historical context, after which Edward Gómez, senior editor of Raw Vision, will present on the meaning and taxonomy of the genre. Part II will feature Scott Ogden, principal at Shrine Gallery, and Outsider Artist, Daniel Swanigan Snow.



Okay, I’m going to give you a little travelogue in sort of the Hunter S. Thompson mode. Heading down to Washington D.C. on the Acela, I can see the Manhattan skyline in the distance as the train cuts through the industrial wastelands of New Jersey’s Meadowlands. I’m finally on my way to see the much ballyhooed exhibition, “Outliers and American Vanguard Art” at the National Gallery, the most recent in a succession of periodic shows where major institutions feature the art of the self-taught, those whose visions weren’t shaped by academia or the machinery of the art world superstructure. I had read several reviews and had leafed through the thick exhibition catalogue. Naturally, I was immediately struck by the term, outliers. Which is obviously a deliberate attempt to avoid the more commonly used term outsider. The distinction couldn’t help but remind me of the hilarious Mel Brook’s film Young Frankenstein. The clip of which i hope you’ll enjoy.


Igor: Dr. Frankenstein…
Dr. Frederick Frankenstein: “Fronkensteen.”
Igor: You’re putting me on.
Dr. Frederick Frankenstein: No, it’s pronounced “Fronkensteen.”
Igor: Do you also say “Froaderick”?
Dr. Frederick Frankenstein: No… “Frederick.”
Igor: Well, why isn’t it “Froaderick Fronkensteen”?
Dr. Frederick Frankenstein: It isn’t; it’s “Frederick Fronkensteen.”
Igor: I see.
Dr. Frederick Frankenstein: You must be Igor.
[He pronounces it ee-gor]
Igor: No, it’s pronounced “eye-gor.”
Dr. Frederick Frankenstein: But they told me it was “ee-gor.”
Igor: Well, they were wrong then, weren’t they?


For the last 20 years or so I’ve been making my way through the art world as the owner of a gallery in Manhattan and more recently an art fair. Both of which specialize in outsider art. Addressing you tonight has proven a good opportunity for a little reflection, both on this field and my place in it. In the words of the great David Byrne, well, how did I get here? By the mid 1990’s I’d pretty much taken over the reins of my father’s food business, brokering groceries staples like peanut butter and mayonnaise. Selling them by the truckload to big supermarket chains, while still managing to moonlight as a rock musician. It had been a very lucrative business for decades, not the rock musician part. My late uncle Paul was an artist who made collages out of tiny slivers of postage stamps. He worked in isolation, partly because he had been born almost completely deaf. Very few knew his work. Perhaps he’d been included in a few group shows, but certainly never sold a thing. After I showed his work to some dealers, he was niched as an outsider artist, and in fairly short order at the age of 66 achieved some commercial and critical success before he passed away in 2008. He was elated by the level of attention he received, but continued to live a quiet dignified life devoted to his art.


Being a conduit for Uncle Paul was my first step. His work genuinely moved me. I found it elegant and mysterious, sophisticated, but at the same time, tapping into something primordial. I remember that during one of the early exhibitions of his work at my new gallery a visitor came in from a small country in Eastern Europe. What he said about the show stayed with me. Something to the effect that anyone from anywhere in the world could relate to Uncle Paul’s work, that there was a way in. This struck me as almost the highest kind of praise imaginable. To me the best art was almost always the most universal, where I was able to find common ground with the artist through our shared humanity. I’d been developing my aesthetic values steadily since I was a kid, but through the medium of rock music not visual art. In 1969, as a third grader I performed Let it Be and Proud Mary in front of the school. I was transported by the lyrics and the story these songs related, even if I didn’t fully understand them. I had a hippy music teacher from The Village who explained to me that the songs in my Tommy Songbook were all connected as part of one story about a deaf, dumb and blind boy. This was amazing. When I got older, Dylan’s Blood On The Tracks took me on a journey that to this day feels like one of the most visionary American adventures ever.


What I saw at my first Outsider Art Fair in 1995 gave me a similar feeling. Seeing James Castle drawings being pulled out of a cardboard folder for the first time, these huge double-sided Henry Darger scrolls, Ramirez, Wölfli, these worlds that these artists invented sucked me right in. Almost the ways Tangled up in Blue did. In an effort to further my art education, I’d been trying to visit as many galleries and museums as possible. But I wasn’t initiated into the world of contemporary art, and none of the people working at the galleries took much interest in helping me understand what an artist was trying to communicate through an installation or with an abstract painting. I was educated enough, had a college degree in English literature but still I had little inkling about much of what I was seeing. By contrast the dealers at the Outsider Art Fair were happy to tell me the incredible story of these artists which furthered my appreciation for the work.


As I began to get hooked on outsider art, I also noticed the level of attention it was receiving in the artworld was microscopic. As a nascent dealer I was energized to spread the word. After being open for about 4 years I was incredibly fortunate to land an exclusive representing the Henry Darger estate. Darger was already a legend, but had only penetrated the consciousness of the artworld to a modest degree. Now that I was in charge that was of course gonna all change. I can recall meticulously filling out the application for Art Basel, proposing a solo booth of Darger masterpieces. The star curator at MOMA, Klaus Biesenback had just written the essay for the new Darger monograph, so even politically all the stars were aligned, for the most renowned aficionados of art to finally see and hopefully buy these great works. My application was rejected outright. How could this be? Well, it be. And it was on me to figure out what the obstacles were and how I could get around them. What I needed to do according to those in the know, was to demonstrate the relevance of outsider art to contemporary art.


I began to stage hybrid shows at my gallery, inviting thoughtful and youngish Brooklyn artists to curate. The results were tremendous. I drew crowds, and the press responded enthusiastically with glowing reviews. Truthfully, some of the work brought in wasn’t exactly up my alley, but I saw the importance of working outside my comfort zone and I learned a lot about the contemporary art world, a culture that I’ve come to respect and one I absolutely needed to win over to be successful. I suppose for critics and curators there’s often an inclination to compare self-taught artists with their trained counterparts after all they are in search of something interesting to write or talk about and it is interesting. But how relevant is it? Many times have I seen artworlders who wear their encyclopedic knowledge like a badge pinned to their chests opine about some self-taught artist’s work they’ve seen. To use a musical analogy, it can sound like an expert on Rachmaninoff being assigned to review a John Lee Hooker album. Tonight we’re lucky to have one of our generation’s greatest art journalistic luminaries with us, Edward Gomez, who has mastered the ability to speak about all the technical and formal aspects of self-taught art, without overlooking its essence, spirit or meaning.


Another well-known voice in the art world belongs to Jerry Saltz. In 2016 he wrote this in his review of the Keeper Exhibition at the New Museum. “These days our definition of art is mainly art informed by other art and art history. Especially in the last 2 centuries and tenaciously of late. Art is examined in its own essences, ordinances, techniques, tools, materials, presentational modes and forms. To be thought of as an artist someone must self-identify as one and make what they think of as art. This center cannot hold. Why? It’s far too tight to let real art breathe. It’s beyond time for a new generation of art historians, not only to open up the system and let art be the garden that it is; home to exotic blooms of known and unknown phenomena. It’s time to work against this system. The idea that art has an overall goal of advancing or perfecting its terms and techniques is made up, imagined, idiotic, except for those benefiting from this intellectual fundamentalism. Someday people will look back at this phase of art history the way we look back at Manifest Destiny and colonialism.”


I’m rereading this review just as the train pulls into Union Station. I’m looking forward to this show. The edifice of the National Gallery looks majestic as I get out of the taxi and the giant banner advertising outliers is twice the height of the facade of our beloved Folk Art Museum. Walking through the atrium with the sunlight streaming through I get an uplifting feeling of optimism about the show. And there’s also some pride that the art I’ve been championing is continuing to make headway. And then I head down a wide flight of stairs and then another set, and I realize that the show’s underground in the basement of the National Gallery. The first room offers two walls with an installation of sculpture in the center of the floor, all by female artists. One wall holds a large quilt by Rosie Lee Tompkins. Diagonally across a wall-hung piece by the contemporary artist, Jessica Stockholder. On the platform are 5 sculptures. Three by Judith Scott and two by Nancy Shaver. The difference between the works by the outsiders and insiders seems plain enough: Judith Scott wrapping her objects with virtually no art historical awareness and it wonderfully shows. The Shaver sculptures seem more deliberate with careful thought and strategy devoted to the placement of her objects. For me, the same is true of Stockholder’s work. Her assemblage reminds me of the kid’s game Mousetrap with all kinds of disparate materials connected together. It’s the art of the self-conscious next to the art of the unselfconscious, which to me pretty much summarizes the show.


Pairing Henry Darger with Matt Millikin or Cindy Sherman with Lee Godie and Eugene Von Bruenchenhiem. Now this is not to disparage these artists. Seeing and understanding an artist’s complex strategy and composition choices can be hugely exciting. But why are these works in a room and a show together? Lynne Cooke the esteemed curator, has already done important work with artists like James Castle and Martin Ramirez, and she’s clearly demonstrating an affinity between the artworks of the trained and untrained. And pointing out in many cases the schooled artists were influenced by the self-taught ones. This is certainly compelling if not altogether new observation. But there’s also an implication of a dialogue among these artists which cannot be true. Because any influence can only flow one way in this scenario. Did Judith Scott have exchanges with other professional artists, critics and professors. Did she read up on art history or read the reviews of her exhibitions. So while the works of outsiders are granted equal stature in Outliers, it still appears that outsider art is being seen and used as a comparative tool for defining the work by artists who are aware of the canon.


Cooke endorses the notion that the field of outsider art should dissolve into the mainstream, becoming just another dimension of modern art history and she’s not alone. But one of the footnotes Doctor Cooke’s essay does state is troubling to me. It reads, “the focus of the current project necessarily leaves aside reference to the activity of these specialized institutions above all the American Folk Art Museum founded in 1961 and of department devoted to folk and outsider art in museums such as the Smithsonian American Art Museum and the High Museum of Art”. So with that explanation, Cooke is dismissing out of hand decades of research and scholarship by experts at museums wholly dedicated to these artists. In fact, the first phase of Outliers treads on very similar ground as Stacy Hollander’s 2015 exhibition, Folk Art and American Modernism. at the Folk Art Museum with many of the same artists being represented. Is it possible for institutions to embrace the field of self-taught and outsider art without cannibalizing it?


There hasn’t been much pushback either against those who contend that there’s little or no distinction between the fields of outsider and contemporary art. It’s almost a reflex for those of us in the business of outsider art to cite each instance when big movers and shakers in the art world bless the work we handle every day. We bask in their approval and hope that their accolades will morph into something that might even trickle into our bank accounts someday. From the Venice Beinnale to the Metropolitan Museum we feel validated when our underdog community is acknowledged for its outsized cultural influence, less we forget that virtually none of the artists like Darger, Ramirez or Dyal – they didn’t give a damn what the artworld thought about them. In most cases, they didn’t even know what the art world was. So, when we define outsider art or assess its worth only through its relationship with mainstream art, we’re not serving it well or doing it justice. In the current exhibition at the Folk Art Museum: Vestiges in Verse, Notes from the New Fangled Epic, Henry Darger’s original 14 volumes, 15,000+ pages are on display, Illustrating his depth of his commitment, his total immersino in his art. In fact, I would even say, you can’t fully appreciate Darger without seeing these books. To experience the Dellshau, the 46 foot long scroll of Aloise Corbaz and incredible story boards of Adolph lfl, is to witness art that is timeless.


Artists like Darger and Wölfli need to be looked at more like the Homers and Miltons of our time and less as reference points for other artists, critics and media figures. Maybe what I love most of outsider art, is this close connection to the great human tradition of storytelling. Reading or hearing a great story can move us transform us, change how we think. The stories my dad told me about his childhood affected my profoundly. He was a classic joke teller. One of my favorites was where the Baron Von Rothschild the famous British financier is picked up at Victoria Station by his horse and carriage and driving him out to his countryside estate. He hands the driver a one pound note who says “thank you but even your son gives me two pounds”. He goes “sure, he has a rich father”. The young- it’s a funny joke, but it’s also true about the nature of entitlement. The young Rothschild is cavalier with his money precisely because he didn’t earn it himself.


Having expertise in one domain doesn’t make that knowledge instantly transferable, so can be with those making pronouncements in generalizations about outsider art. Even though they might not have looked at or studied the work on its own terms away from the lens of professionalized art. In closing I want to thank Richard Lehun, Stropheus and Sotheby’s for inviting me here tonight. As we ponder these issues we can’t help but acknowledge that these are indeed exciting times for our field, and it’s a good thing that so many new eyes will fall on this work in large scale museums like the National Gallery. We owe a debt of gratitude to curators like Lynne Cooke, Massimiliano Gioni and Matthew Higgs, who have helped with their distinct curatorial positions to expand the audience and appreciation for outsider and self-taught art over the years. But let’s also not forget the legions of art dealers, collectors, museum directors, writers and curators who have already been beating the drum for self-taught artists for generations. Outsider art is indeed art with a capital A, but it’s also kind of its own thing. If you’ve ever been to the Outsider Art Fair, then you know what I’m talking about. And if I might suggest, the next time you’re about to check the temperature on your iPhone open the door instead and step outside. You don’t need a weatherman to know which way the wind blows.





Very briefly I want to give you the sense of the collective history and implicitly a sense of the broader global view of activity in the related overlapping fields of Art Brut, Outsider Art and so-called Self-Taught Art. And I’m sharing this group of observations obviously from my vantage point as a researcher, critic, reporter, and educator who has been deeply involved with these related fields for many, many years.

First, I’d like to talk to you about the terminology. Art Brut, Outsider Art, Self-Taught art, Visionary Art, Intuitive Art, Naïf Art. Various labels have been kicked around for many decades to describe and identify the kind of artworks that we’re discussing tonight. No one label sits comfortably and accurately and completely identifies the kind of artwork we’re talking about. So, as a result, collectively we tend to refer to all of these nuanced forms as Outsider Art, hence the name of the fair: The Outsider Art Fair. There are nitpickers but let them pick.

Naïf Art, however, is one term that bit the dust some time ago. And we can thank our confrères and consœurs in the postmodernist critical camp for helping us dispense with that one. The assumption coming from postmodernist critical thinking is: Naïf? Naïf to whom? Who’re you calling naïf?

We speak about the field, those of us who are researchers, art dealers, collectors, promoters in it. And it’s just a handy nickname – shorthand – for this material we’re investigating and celebrating. This field emerges out of, is related to, what is not necessarily dependent on the development of the field of psychiatry, especially as this medical field was evolving in Europe during the late 19th century and early decades of the 20th century. By the early decades of the 1900s, doctors at some psychiatric hospitals in Europe at what used to be called mental asylums, another term which is poo-pooed, were paying attention to what could be described as artistic creations made by certain resident patients in their institutions. These creations might have been drawings or handcrafted objects made with found materials. Nowadays, many psychiatric hospitals have so-called in-house art therapy or occupational therapy programs for their patients. And in many of their institutions, participation of those patients in such programs is regarded as not merely a way of filling up their time, but rather as a worthwhile activity that may actually contribute to the healing process.

Often patients in such institutions were diagnosed with psychosis, especially schizophrenia. But keep in mind that psychiatrists a century ago did not have the more nuanced understanding of mental illness, particularly schizophrenia and psychosis, that their successors in the 20th century and today possessed and possess, and by which they guided in making their diagnoses and treatment programs. Also, keep in mind, a century ago, there were no drugs of the kind we have today for mental patients.

Some of the most important people associated with psychiatric hospitals in Western Europe in the early 20th century who were paying attention to the creations of these resident patients were people like, Doctor Hans Prinzhorn at the University of Heidelberg Psychiatric Clinic, who in the early 1920s was collecting work. Doctor Walter Morgenthaler near Bern, Switzerland, who was the physician overseeing the artist Adolph Wölfli and recognized his artistic genius and in the early 1920s, published a book about Wölfli called Ein Geisteskranker als Künstler in which he recognizes this mentally ill patient as an artist. So, this was somewhat radical, this kind of thinking about what these people were making.

Fast forward to the 1940s, the modern artist, Jean Dubuffet and a group of his pals, like the surrealist leader André Breton, became very interested in the work of not only mentally ill persons, but people working, making art in prisons, distinctive carvers, self-taught painters who were not working in traditional folk art styles, and other unschooled makers of what they considered rather unusual, exceptional works of art. Common to what these people were making was the fact that they had not studied art making or art history in schools. They usually found themselves on the margins of mainstream culture and society, either by choice or by the force of circumstances, often using found materials.

Dubuffet and his colleagues recognized that such self-taught artist creations could be regarded as works of art, and this is very interesting, because in doing so they were implicitly beginning to evaluate these creations with aesthetic criteria in mind. And very important was that they recognized that the kinds of so-called artworks that these people were creating were unique in themselves. This became a very important criterion for Dubuffet’s in recognizing and identifying, and ultimately labeling, a work as Art Brut, which in French literally means Raw Art. There are some historians who also think he was pulling our legs. Why? Because Dubuffet came from a family that sold wine on the Atlantic coast of France. And as you know, there is a champagne that is brut. And so, some people think he was playing around with this. These works also, Dubuffet pointed out, all convey and represent a deeply unique personal vision on the part of their creators. That vision might be artistic, spiritual, political, social, historical or a combination thereof. Wölfli’s work is a very good example. He was in the very early publications of Dubuffet’s association, which he had established in France with some fellow critics and writers and artists in the 1940s.

Fast forward to the 1970s, early 1970s, there was a historical, for us in our field rather, historical exhibition in England, put together by Roger Cardinal, the book that accompanied it was called Outsider Art. Professor Cardinal’s publishers said “Roger, that will never do. Art Brut will never be understood by the British visitor to the museum, and nor will make sense in a bookstore, so we have to fish around for something else.” And they came up with Outsider Art to sum up and reflect Dubuffet’s description of art of this unusual kind. And the term stuck. However, it also suggested a more expansive meaning, and helped shift the tension in this field to the status of creators as so-called outsiders.

Dubuffet had referred to these art makers in French also as Créateur or Auteur. If Dubuffet had highlighted both the conditions of the art maker’s life in society and the character of his or her creations, Roger Cardinal’s new label helped steer attention more to the unschooled art makers’ situation outside mainstream society, but not necessary completely removed from mainstream culture. You’d have to be brought up as an enfant sauvage, out in the forest with no contact with a radio or television or newspaper, to be completely removed from culture.

So, the term self-taught art is something much more recent. In recent decades, especially in the United States, this term has come into use in the art market and the media to refer in an even broader way to the creations of Art Brut and outsider artists. But as you can see, this term explicitly cast the net very wide. As a result, many creations by persons who can be called or do call themselves self-taught have emerged in the art market. But can or should all such works properly be labeled Outsider Art or Art Brut as well? Technically, all works of Art Brut can be properly placed in the broad field of Outsider Art. But can all Outsider Art be considered to be works of Art Brut? Conversely, from the even broader vantage point of so-called Self-Taught Art, and note that it’s not the art that’s self-taught, it’s the maker who is self-taught, so these terms are sometimes rather dubious. All Art Brut or Outsider Artworks are by definition produced by self-taught artists, but not all specimens of Self-Taught art can be properly be classified as works of Art Brut or Outsider Art. Are your heads spinning? I’m not quibbling about the co-existence or the respected specificity of each of these terms. There was a woman involved in this about 30 years ago who once said, “we’ve got to stop the term warfare.” But in my opinion, the time for arguing about which one label to use to universally categorically identify or refer to all of these different but often related kinds of artworks that can or are designated by these different terms, that’s over. As I said, collectively, the umbrella term we can appropriately use is Outsider Art.

That is not to say that these terms can or should be used synonymously or interchangeably. They should not. Each one has a specific and nuanced meaning. They can and should all be used in an informed manner, especially by art dealers, teachers, curators and the media, all of whom perform roles as educators about this kind of art whenever they examine or present it. In practice, as I said, Outsider Art has become the common label.

Now this is something that’s interesting. I want to just tell you two critical vibes that are emerging. One is that of the rejection of the term “outsider.” The rejection of the term “outsider” by those who believe that this sounds pejorative and assumes that whoever or whatever is being placed outside is being categorized or placed there by those on the so-called privileged “inside.” This point of view comes straight out of doctrinaire post-modern critical theories’ textbooks. Normally, the “inside” would seem to refer to various places of positions within the so-called mainstream art establishment and its supporting institutions and infrastructure, such as the specialized art media or the mass media. Some people question if these outsiders are really “outside.” At the same time, we are seeing the embrace of the label “outsider,” by art makers and others, some musicians who might not be self-taught at all, who might be quite well-schooled and aware of art history and the art mainstream, and even tapped into it, but for whom “outsider.” with a nod to cultural politics, has become a declaration of a kind of social, cultural, political position or even of a stylistic fashionable pose. Les Poseurs.

Dilemma: if anyone can be a self-declared “outsider,” then who or what is a genuine “outsider”? Now, I’m going to leave you with a few critical issues, that are also on the radar screen. Andrew [Edlin] hinted at this. I’m just going to let out the full arsenal. Let’s put to rest right now the notion that however, whenever, or wherever it may be implicitly or explicitly expressed, that Outsider Art can or must be, or somehow is, legitimized, or validated, if or when it is presented alongside art made by academically trained so-called professional artists who are knowledgeable of mainstream art history, and make their works in dialogue with it. That is, art products made primarily for sale in the mainstream art market and presented in mainstream art establishment institutions. To assume, never mind state, that outsider art is somehow validated or legitimized by its real or imagined proximity to mainstream art product, or its supported institution is to misunderstand the essential nature of this art.

Just lowered the boom. Now I’m going to zip ahead to Judith Scott, whom Scott Ogden just mentioned. This kind of art by definition is unique unto itself. Certainly, as any other art form, it can be compared to and contrasted with countless other art forms examined and appreciated vis-à-vis a myriad of concerns and characteristics. But it does not need to be validated by anything other than itself. That’s the main point I want to make. And that is coming from Dubuffet’s theory about its uniqueness. Like the best forms of artistic expression of any kind, in any discipline, outsider art embodies and communicates its own inherent truths. And it is our jobs as observers, as art appreciators, as critics certainly, to find those truths and articulate them.

Now, having said all that, at the end of 2013, a New York Times report on the year’s events and trends in the international art world, of which the art market is a large part, stated breathlessly, “this was the year that outsider art came in from the cold.” Now I ask, as an informed observer, and I saw the exhibition at the 2013 Venice Biennale, exactly what did that remark, which was packed with assumptions mean? From exactly which supposedly cold precincts did outsider art finally emerge? Cold in relation to what? What might have been the hot?

The Times offered as a rationale for its assertion that outsider art had been featured “most prominently in the centerpiece exhibition of the Venice Biennale.” That big exhibition was called The Encyclopedic Palace. It was organized by Massimiliano Gioni, a curator here in New York. That exhibition took its name from that of a sculpture by an Italian-American self-taught artist Marino Auriti who in the 1950s imagined a museum which he called Enciclopedico Palazzo del Mondo, which was to house all the knowledge in the world. His sculpture was a model of his proposed museum building. And that lovely sculpture is housed at the American Folk Art Museum here in New York.

That exhibition at the 2013 Venice Biennale placed outsider art alongside the creations of academically trained artists, including some big-name stars in the mainstream such as Bruce Nauman, Charles Ray, Cindy Sherman, and others. In fact, by the time the time the New York Times article was published in December 2013, the market for the works and the market for the best self-taught artists, which had been around for several decades, had long been quite high. Such works had been increasingly visible in the mainstream media. They had become more and more popular among general interest audiences.

Just look at the attendance figures of the annual Outsider Art Fair. Kudos, Andrew! They had become ever costlier in gallery art fair and auction sales. Around the time of the [2013] Venice Biennale, a British writer [Sam Thorne] wrote an article about it and quoted Gioni who said that “he hope[d] that his exhibition will ‘blur the line’ between the insider and the outside.” Here we go again with this hackneyed, cliché, binary thinking. However, the writer of this article in Frieze magazine went on to write, referring to works of art by self-taught outsider artists, “[D]oes the inclusion of such works really question the mainstream, as Gioni has suggested, or is it just further proof that – in order to maintain its primacy – the mainstream always needs to designate exceptions?”

Okay, I’ll leave you with these two points. A few months later, around the time of the Outsider Art Fair 2014 in New York, a few months after the Venice Biennale closed, my colleague at Raw Vision Magazine, John Maizels, its founder, spoke with me about this trend of bringing together works of academically trained artists and those of remarkable autodidacts. Maizels noted, “it is definitely happening. Is it because the contemporary art world has open up to the fact that outsider art is quite popular now, or is it because outsider art prices have risen and therefore this kind of work seems more worthwhile to people in the market that is?” I think it’s a bit of both. So, if that’s the case, here are questions for the jury to consider. Is it worthwhile, desirable, or necessary to “blur the line,” as Gioni said in his 2013 interview, between artistic creations that are identified as those of outsider artists and those who are made by academically trained so called professional artists? Or not? Or is it possible and could it be more satisfying or perhaps illuminating to allow works of art that are classified and labeled one way and those that are classified and labeled another way to co-exist; to appreciate them for their respective, and yes sometimes shared or common characteristics or affinities, without wanting needing or expecting one kind of art to somehow validate or legitimize another, or to be regarded as possessing some kind of greater aesthetic historical or other value than another? In his article in Frieze magazine, the British writer Sam Thorne, who happens to be a museum director in England at the Nottingham Contemporary, also cited the curator Lynne Cooke, whom Andrew mentioned today, a curator who has long worked in this field, is now on staff at the National Gallery of Art in Washington DC. Thorne quotes Lynne Cook, who observed that “outsider art has come to be viewed as a parallel field, separate but equal to contemporary art.” He noted that Cooke had pointed out that “parallel lines can never converge.”

Now, I can leave you there. But I just want to show you one slide that’s very important. Art Brut and Outsider Art’s historical root territories are Europe and the Americas. Traditionally, these related fields have been driven by the activities of self-motivated researchers and collectors whose research pursuits and collecting have gone hand in hand. This cannot be emphasized enough. This is a field that grew out of the activities of researcher collectors, and to this day is still dependent on some of the energy and passion of collectors who are very good researchers, and the best dealers also function, particularly in this field, not just as promoters, sellers, but as researcher educators. This is very unique to this field, somewhat in the way that any specialized field of antiques or decorative objects might appear to you. I can tell you from my vantage point, as a curator working at the Collection de l’Art Brut in Lausanne, Switzerland, which Dubuffet founded 40 years ago, that indeed specialized institutions of this kind, which there are very few of, and the marketplace in general (Scott Ogden alluded to this), are all hungry for discoveries, and so the researchers in this field are branching out beyond the familiar territories of Western Europe and the Americas, and we are now seeing exciting finds coming from Asia, Africa and other parts of the world, so that’s where the research stands.
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The Rise of Outsider Art

Break on Through (from the Outside):

The Rise of Outsider Art

Sotheby’s Institute of Art and Stropheus present an evening with insiders and experts on the flourishing of Outsider Art and the specific challenges of outsider artists and their immediate support circle.

Sotheby’s Institute of Art, 570 Lexington Ave, New York, NY 10022

Panelists

Andrew Edlin, CEO of the Outsider Art Fair; founder and president, Andrew Edlin Gallery
Edward M. Gómez, senior editor, Raw Vision; art critic, historian & curator of outsider art
Scott Ogden, founder and director of Shrine, a Lower East Side gallery focused on outsider art
Daniel Swanigan Snow, Brooklyn-based self-taught artist
• Dr. Richard M. Lehun, Esq., attorney focused on artist-gallerist relations, agency, and art transactions

Moderator

Judith B. Prowda, Esq., Faculty, MA Art Business, Sotheby’s Institute of Art-New York

Topics explored will include cultural relevance, critical recognition, representing outsider art/outsider artists, as well as copyright, collections management, catalogue raisonné, agency relationships, and legacy planning.

Tune into Sotheby’s Institute of Art Facebook live stream here

About Outsider Art

The term “outsider art,” which was coined in 1972 by the British art historian Roger Cardinal, is used to label a range of unusual art forms produced by self-taught art-makers who tend to be situated, either by choice or as a result of varied circumstances, on the margins of mainstream society and culture.

As a general catchall term, nowadays “outsider art” is used to refer to the related and sometimes overlapping genre categories of art brut (unique art forms created outside the academic tradition and without reference to established art history), outsider art and self-taught art (a much broader, contemporary term referring to works produced by unschooled art-makers of many kinds, including the creators of folk art and what used to be known as “naïf art”).

In recent years, increasingly, outsider artworks have been shown in major museum exhibitions and have entered notable public and private collections. Now more than 25 years old and an institution in its own right, the annual Outsider Art Fair in New York and its newer sister fair in Paris have played a large role in validating the status of self-taught artists and celebrating the diversity of their achievements.

As outsider art has gained recognition in the marketplace, legal challenges confronting outsider artists and their estates have grown in complexity to ensure that their artistic output is sustainable in the long term.

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End of Brick-and-Mortar: An Epilogue with Gallerists David Dixon, Michael Foley, and Sasha Wolf


Gallerists David Dixon, Michael Foley, and Sasha Wolf respond to the crisis of the brick-and-mortar gallery model by analyzing new business models. Further background on this discussion can be found in the event recordings of Nicole Klagsbrun and Jay Gorney, Josh Baer and Richard Lehun, as well as an interview with Edward Winkleman.


David Dixon: Mike, you were at that brick-and-mortar conversation that Richard Lehun and Christie’s Education organized, the panel with Nicole Klagsburn, Jay Gorney and Josh Baer. I was wondering if you have any ideas about what was addressed, and about what wasn’t addressed in the talk that you felt should have been?

Michael Foley: First of all, I thought that the talk was incredibly timely. Everyone in the gallery world, including gallerists and people interested in the evolution of how we work, was interested in what seasoned dealers have to say. The only thing that was missing was a multigenerational take on this. The dealers involved had been in the business a long time, and this was a natural evolution for them to move out of that traditional gallery mode into something private and project based. I think the next step is to hear from gallerists who are somewhere in the middle, who have been in the business for while but still have a long career in front of them, and also the younger people coming up who are thinking about opening galleries or just opened a gallery, or perhaps an artist that has opened up an artist-run gallery space – and to hear a little bit about their perspectives. That panel was a great beginning, because we heard a lot of experience up on the panel. But now I’d like to hear from dealers that are at different stages of being a gallerist, either at the beginning or somewhere in the middle.

DD: And surprise, here we are. You’re basically in that middle range, I would say?

MF: Yes – I’ve been working in galleries since 1989, so I’m definitely pre-Internet and from the era of sending out slides and photocopying. But I have also moved into the digital age and had a gallery myself for the past 12 years, starting in Chelsea and then moving to the Lower East Side. Now I feel like I have still a long way to go in my career, but I also feel that things are changing. And it’s a good idea to address that now and figure out the possibilities.

DD: That was one of the things that I felt should have been addressed in the panel and wasn’t, which was like you said, we’re in the digital age now. You started with photocopying and certainly the changes now go beyond that. But in your gallery, do you work in a brick-and-mortar space, as well as the digital space?

MF: Yes, certainly. I have a traditional space and I do solo exhibitions. I definitely have one foot in the old and one foot in the new, and that new consists of a lot of different things. For me, it’s a turn to being a different kind of distribution system, or awareness system. How are people finding out about art? How are people viewing it? How are people buying it? What are the platforms that they are discovering? The brick-and-mortar space was a very specific model: I have a gallery, I have work on the wall, people come in, they see it, they experience it. Then of course there is the evolution of websites, which allows people to experience art remotely. And there’s the advent of the art fairs, which have been with us for quite some time, which is yet another space where people can view art. And there are online marketplaces. We have to try to understand all of these different ways that people are experiencing and buying art and engaging with it, and figure out what’s best and how much of my resources need to go into each and which one is turning out to be the most successful. Right now it seems like they all simultaneously occur, but the question is five or ten years down the road, what is going to rise to the top, what is going to be the way of working for a gallery in an industry has been used to the traditional model. And how can that morph and develop into something that perhaps we haven’t seen before – maybe that’s a hybrid, or maybe that’s something completely new.

DD: Sasha, that’s what you were saying earlier. That you’ve got your sights on where you are going to be ten years from now. So you had a brick-and-mortar space, but now you would actually prefer not to work in this mode?

Sasha Wolf: There are a lot of different reasons for that, but yes, I had a brick-and-mortar gallery for almost ten years and let go of that space about three months ago. When a space became available on the second floor above my brick-and-mortar space, I took it. What I wound up doing was closing the ground floor space and working out of the second floor space, which has so far worked very nicely for me. But there are so many branches there. There’s the economics of it, there’s my clients experience, there’s my artists’ experience, there’s my experience. Right now I’m much happier not having a public space. I don’t want my day to be the same every day. I’ve never really loved that. I have reverted back to having more freedom, and I’ve been traveling a lot more the past few months to go work with my artists in their studios, wherever they are. That just feels fabulous to me on a personal level, and I enjoy coming to work a lot more.

It works out better for me economically as well, and something I wasn’t sure was going to happen was that my clients really love it. It’s just more private. Of course there are big galleries that have very private rooms where they work with their clients, but I didn’t have that. I had a back area, but it wasn’t completely private, and there’s something different about the situation now. Now when I offer my clients something to drink, they always say yes. The bar is well stocked. There’s something about this setup, where clients are ready to settle in, they spend more time here, they have a glass of wine, they have an espresso. There’s something happening now that’s working better for them as well. The only thing that needs to be figured out is how to satisfy my artists’ desire for a public show. The answer to that seems to be that I will have pop-up shows, and I’m actually going to have one very soon, my first pop-up.

Commerce in general is so different. I think it’s really important to think about where are we going to be in five years, ten years, and that’s what I’m focused on trying to figure out. And then based on what I come up with, what my assumptions are, what do I need to build moving forward. That is what I’m working on – bigger plans to develop a new construct beyond what I’m doing right this second, that will make sense for a little ways down the road.

The decision to get rid of my physical space was not easy, as Michael knows. We’re old friends and we talk about these things a lot. It was scary, because the paradigm, the structure of the physical gallery space, is so unbelievably powerful. It’s so intense. It’s that white box, where you rotate shows every six, five, six seven weeks. It’s so deeply ingrained into culture and the art world. There are so many things that went into the decision. One is that I started to enjoy my experiences less with people coming in. I found that people under a certain age started coming in and photographing the show and then leaving, instead of coming in and really engaging with the work and with me, asking questions. I assume that they’ll interact with their peers when they post the photographs another time, and I have no judgment about that whatsoever, but that experience became less interesting for me. As someone who loves talking to strangers, that was a big loss for me. My overhead was also getting really crazy, and it was starting to feel suffocating financially.

The third factor was that it seemed like my artists always felt like they had to have a show every two years, that that became the industry norm, and I felt that a lot of projects were being aborted before they were finished. And that my artists wanted to have shows of new work before it was ready. We were losing on both ends. No matter how many times I kept telling my artists to relax and that this was just a false paradigm, that it was arbitrary, they really couldn’t get away from it because it’s the way the industry works. It started to feel not good, like I was putting up too many shows that were not fully baked. When you hang a show you want to feel filled with pride. There’s a feeling you get when you know you’ve put up a great show and it’s amazing. I started to feel there were too many shows going up that were good and not great. I wanted to get off that hamster wheel.

There were a lot of other reasons to close the brick-and-mortar space, but those were the big ones. Now I feel free, and I am working on all these other projects and much more productive. I’m selling more. I’m more focused. For me it’s worked out nicely, and I still have all my same artists. I still represent my artists, I still have all my clients and things continue, but with out the feeling of having to conform to a certain standard.

DD: You mention that you spend more time in your artists’ studios, is that partially due to not having a space?

SW: Yes, absolutely. I’ve always gone to my artists’ studios, for a couple reasons. I feel like you have to go to the studio to really see what’s going on. I’ve always traveled to my artists studios, but I had to be careful of how I spaced my trips because I didn’t want to be away from the gallery for too long, and there was also a feeling of anxiety about being away. Now I have no anxiety and I can even spend that extra day. I used to do crazy trips where I’d have an artist in Maine and I would fly in and get in at 10:00 in the morning and we would work 36 hours straight, barely sleep, and I’d come back. Now I can take a little bit more time. I was just in California working with two of my artists and I was there for six or seven days. That doesn’t seem a lot of time but all I was doing was working with them. I really enjoy that process of being able to sit there with my artists in their studio. With one artist, I was sitting in the studio for three days. I stayed with them, we were together all the time – looking at work, talking about work, drinking coffee looking at work, drinking beer looking at work. It was the whole day, and so it was so productive. I really love that freedom. For me, temperamentally and in terms of where I want to go with my business, and in the way I show work and deal with the artists, this works for me. This is so cliché, but I think of it as a river that’s flowing and I just want to be flowing with the river. For me, having a gallery started to feel like I was going the wrong way.

DD: Michael, you joyfully maintain your brick and mortar space, despite what you say about these retired or retiring dealers we were seeing at the brick-and-mortar panel, who were in the later stage in their career and seem to disavowing their need for such a space. But you feel as if in mid-career, you like working both angles. Would you elaborate on that a little bit?

MF: I think part of this is the nature of my personality. I’m very social. I like people coming in, I like engaging with them. I don’t mind if they have a lot of questions. I don’t care if they don’t know the artist. I like to inform them of that, and I like having a home, if you will. I like having people coming into that home, and I like hosting that.

I made the move from Chelsea to the Lower East Side, and I started on Allen St., which is a block away from Orchard St. where I am now. But I found that I would mount shows, and keep a tab over how many people would come in, and tops I would get 16 people. And I thought, I can no longer mount an exhibition from an artist who has spent years creating a body of work, for only a handful of people to see it. I decided if I was going to move, I was going to move myself front and center, which was Orchard St. at the time, and where I still am. The amount of through traffic there is really rich for me, and I have found that I’ve made converts of people who just happen to walk by the space and come in and buy work. My mentality is this: if I’m able to justify a gallery that I have now as a brick-and-mortar space based on the amount of foot traffic I get, then I think it’s awash, then I think it’s equal. There’s going to come a point where even being front and center on Orchard St. won’t be enough, and then I’m really going to have to think about whether this works anymore. But the way I’m set up now, I have really big storefront windows. I’ve put some art in there that I think really draws people in, and I engage with them, and I still think that the gallery provides a platform for physical interaction between two people. One is the art seller, the other is the art buyer. It really does communicate and transform for the possibility of a sale. If I don’t have that, I think I’m missing a big tool in the toolbox. But at the end of the day, it’s going to come to economics. If it comes to the point where my rent is so high that I don’t care how many walk-ins I get, it doesn’t pay, then I’ll change.

In addition to that, I do feel that it’s an important step for an artist’s completion of that body of work to actually show it in a public space. It allows for a kind of celebration on their part. It also allows for critical valuation. That’s the one thing that I don’t think will occur if an exhibition isn’t in place – whether online, The New York Times, The New Yorker, if it’s not an exhibition, it’s not going to get reviewed, and it’s not going to have a critical dialogue. The gallery, the brick-and-mortar space, allows for that. I don’t know any online shows that are reviewed critically. Now maybe they’re spoken about, but it doesn’t provide the same temperament the gallery exhibition will. So, as long as the economics work – they still are working for me – I like having the space.

DD: From my point of view as an artist, who fell into this gallery dealing issue, which I consider an extension of the work I am doing. For me, the question became very quickly, not so much about brick-and-mortar, but the tradition of the white cube itself, and the way that it whitewashes its history for each show so that you kind of have kind of a reset. In my gallery, being down the hall from my studio, the space itself quickly became a kind of a sculptural object, where we didn’t return to the white cube. Each show sequentially built on its prior show, and there were some aesthetics left from that history in the space. This wasn’t necessarily something that I felt like was a solution for the brick-and-mortar idea or the white cube generally speaking, it was just something that grew out of my artistic needs, and my own relationship to the artists I was working with, to create what I felt like was an experimental, experiential dynamic space. The space itself became an experience that one couldn’t get online. My goal became to create an environment where the artist’s work would be better than they even expected it to be. That in our collaboration, we pushed them to do things that maybe they didn’t feel like they could in more traditional environments. In talking to people about this idea of not only artists and artist dealer relationships, like what it is that you do together when you put up a show, like who is in control, who is making the aesthetic decisions, who the curator is. Those became problematic, because I was an artist too and had my own ideas, as everfyone does about what something should installed or shown. So, the nature of some of those shows kind of spiral and ended up being maybe collaborative in ways that a normal one person show wouldn’t necessarily be. And the solution there was that the artist would generally have to show other places if they wanted a different kind of experience. So, I don’t represent artists into the way that a gallery normally does, in a kind of contractual way, and where they have some kind of exclusive relationship with them.

Fortunately I’ve ended up with two spaces to work with. One is the conventional white cube space that came after having done this kind of programming at Cathouse FUNeral, which was this additive space that wasn’t a traditional white cube. That space is now being deconstructed and reconstructed in offsite locations. I know this pop-up thing is popular, but the term seems diminutive to me. I prefer Smithson’s notion of site/non-site experiences, or choosing a space that fits with the work that needs to be shown. Its temporality is less important than the fact that it can be a unique and unusual experience. As a curator or as an artist, it pushes one to make certain thematic and aesthetic decisions differently in different kinds of environments. One of the things that become monotonous is to always show in the same space. You get used to what looks good on what wall. Maybe you’re talking about future ideas, future plans, some kind of system that seems impossible to implement, where one rotates and uses different kinds of spaces, rather than having to put down a lease. In New York City, long term leases are more and more rare, so maybe we’ll just have to remain more light on our feet.

SW: When I started, I remember that some people didn’t even have websites. Even the Internet – there was Amazon, but some colleagues didn’t even have websites yet. That was sort of amazing. As recently as six months ago, I read an interview with someone who closed completely, and they were saying that the main reason was because of art fairs. But I think a lot of people are having trouble because of online marketplaces and may not even realize that. I think that the ability to buy art online has had a massive effect on the industry in ways people don’t realize. It’s sort of a frog in the water, where we’re slowly being boiled. It’s crept up. I try really hard to not be upset. The world changes. Who cares? The point is to figure out a way to change with it and be happy with those changes. I can honestly say that I’m fine with where we are now. Primarily because I have free will. I don’t love all the online marketplaces that have popped up, some of them are sort of strange to me and I don’t love all the art fairs, so I don’t do them. No one has a gun to my head. I do think that objectively speaking, we are not where we were compared to ten years ago. There were art fairs and the big galleries would do one or two a year, and there were no online market places. Now those galleries are doing about fifteen or twenty art fairs a year. They’re just constantly sending out different staff members and they are on two or three online marketplaces. There’s no question that it’s a totally different experience. For me it really comes down to figuring out the little pieces here and there that serve our clients best, that haven’t been addressed yet.

MF: I agree with you. There have been a lot of changes, and the things that gallerists have embraced over the years as additional tools may ultimately be our undoing. When I opened 12 years ago, the only way one could see art and be with the art world and see what was new was to go to the gallery. That was the wellspring, that was where it all happened. There was an event, new work, I’ve never sent this before – fresher than a museum could turn out, because a gallery could do a show in a hot minute if it wanted to do it. Also, the artwork was held back. In other words, the first chance you could see it all was in the gallery, not through Instagram, not through Facebook, not through this post and that post. It’s kind of like music, in the way music used to be released. You waited until that record came out, and you got the whole thing. Now you got a single here, a special EP, this and that. The distribution model has been different, and I think gallerists have readily embraced technological and non-technological advances – whether that’s an art fair, having a website, having an online marketplaces, or doing pop-up shows to expand your presence. You can have a gallery here, and have a popup in San Francisco. It’s not to replace it, it’s actually to add to it. The ways that we can present work and engage our audience have greatly increased, but with that has been a certain sense of loss of control. The other change that I see is how artists are in the picture. Before, artists were viewable via the gallery. Now artists have direct connection. It’s kind of like instead of me selling it in my retail store, you can buy direct from the manufacturer, and they are showing their goods. Now our power, if you will, has shrunk. And maybe our importance!

SW: I was talking earlier about where we’re going to be in ten years. I believe that artists are going to be dealing directly with clients way more as the years go on, and I think there will be a platform, a really good platform created, a digital platform to connect artists with clients.

MF: And as far as commerce goes, strictly commerce, why shouldn’t they?

SW: I agree. That’s why I’m not upset about it. I think it’s inevitable.

DD: I think that’s been around for a while. There’s that documentary I was referencing earlier, Painters Painting, where one of the artists is on a panel, and the artist says, “when are we going to have direct access to buyers, why do we have to go through museums? When can we, as artists, directly access the Rockefellers, for instance, for collecting?”

MF: Well, now they have – the Rockefellers are on Instagram. So yes, the access is there.

SW: I would argue that if it makes sense, it should be. Right? Whether it’s gay marriage or whether its artists dealing directly with clients – it’s evolution and it’s evolution that makes sense. It is inevitable. So there’s no point in getting upset about things that make sense and are inevitable.

DD: What’s upsetting is if it’s the art itself that is degraded somehow.

MF: If the process of making the art suffers.

DD: Possibly. I would think, the experience of the work.

MF: Right.

SW: I don’t think it will. Because there will always be museums, there will always be certain institutions that where there are gatekeepers, where there really is rigor, but I think that’s why we have to get a lot more creative about what our role is.

MF: And about what we can offer. Before, we offered the white walls, we offered some guidance, we offered some sales, but now a lot of that is elsewhere. I see a parallel to publishing. The writer and the artist are very similar. Before, you had to go to one of the big publishers and it would be distributed in a certain way, and it could only be distributed at bookstores. There was a lot of power in few places. Now it’s different, but the one thing that the writer and the artist need is a good editor. If you read any novel or book of essays, you always see a big thank you that usually goes out to the editor, the person who went through the process with the writer. I feel that the gallerist still plays that role, and that’s probably our most important role that we can hold onto and maintain as long as artists still feel that they need it. Because I think that some artists are like, “hey you know I’m just going to do this all myself.”

SW: Right, so good luck, go ahead. But, you’ve mentioned and asked me about going to my artists’ studios. People ask me all the time, why are my artists still with me when I don’t have a physical, permanent space. Just imagine that you’re an artist, you’re making art, which we all know is a very candid, very lonely experience. There’s a certain unbelievable self-involvement that comes with making art. It’s just the way it is. You’re in your head, you have to have a certain drive, a certain dedication and single-mindedness and there’s someone there who is willing to talk to you about those things whenever you want. Whenever I go to my artist’s studios we are talking about them. What are you thinking? What do you want to do? Where are you going? What does this mean? In my case, what works well with my artists is that I’m not just willing to do that and be that person for them, but I also love it. I love debating the merit of every single piece. If you don’t move towards that place, I think you do become obsolete.

SW: I wonder how you, Michael, feel about art school, because you also teach. I do the occasional guest lecture where I went and I’m a total bummer, but you actually teach regularly.

MF: I think the most important thing for someone entering into art school, whether its undergrad or graduate, is to have a clear understanding of expectations, and an evaluation of who they are as an artist, their skill level, their intention and what they can expect when they graduate.

SW: Well, whose responsibility is that though? It can’t be the responsibility of an eighteen-year-old knucklehead with an undeveloped brain.

MF: Well, the challenge is that some student is like, “I like photography. Let me study photography.” And they really don’t know what that means the end of four years for them, versus their investment of their time and their money or their parents’ money to do it. There needs to be a better education about it, and I don’t know whose responsibility that is. Who is that person? Or who is that body? The student needs to get a clear understanding of what to expect and if they are really right for art school. It’s a great benefit to many people who are committed to it, who are dedicated to it and have their expectations in check. A lot of times the art schools, even at a graduate level, don’t really inform their students of what to expect after they get out, and about what they need to understand about the art world, what they need to understand about making a living and being an artist.

SW: It’s so important. I don’t know how you can graduate kids who have no sense of that. Compare it to the performing arts, and the schools that have conservatory programs, SUNY, Purchase or CHAS conservatory programs and Juilliard. Those students, they know how hard its going to be. There’s no pussyfooting around, when you’re dealing with ballerinas or opera singers, they really know the deal. I’m not sure why those same conversations don’t happen with art students.

MF: When you mention those conservatory schools, that sounds like a very dedicated and intense course of study, that is highly competitive. At a certain level, the undergraduate programs are not that competitive. A school has a certain quota or has to fill a certain amount of students in their student body. They may lower their standard and they may not give full disclosure about what people are actually getting involved with, and then you get a good group of people in there who realize somewhere along the line realize they don’t want to be artists. At a conservatory level or a more competitive program, you weed out the people who are less talented. Art school under the right conditions is a good experience for the right candidate, but for many of the people that are in there, perhaps it’s not a good fit.

SW: I agree with that. I know that this doesn’t really bear out, but I wish that you could come up for evaluation. Obviously you have to maintain a certain grade point average, but I think too many artists are graduating without enough skill and without any sense of what it takes. This is a debate that’s obviously filled with a lot of different tentacles and it’s hard to sum up, but I do think that there are too many kids who are getting out with these huge student loans, and they have no idea what it takes and they have no ability at all, and I find that really heartbreaking.

SW: If I could grab a hold of graduating artists, I would tell them not to get caught up in these sort of paradigms that we’ve created, that we’ve been talking about, that really have nothing to do with art. They’re not organic. They’re constructs, and there is no timetable. If it takes you ten years to produce one masterpiece, then that’s the way you work. We could sit here and go down the list of some of the greatest artists of all time who produced very few pieces and there are some who produced tons of work. There is no right and wrong, and yet I think that the constructs of the art world, or as I call it now, the art-industrial complex, make these kids feel like they have to have a show, they have to be in a gallery right away, that’s going to somehow change their life. And then they are going to have to have a show every two of years, whether they are ready or not. People need to figure out how to develop a practice that’s going to nurture them throughout their entire life, and that’s a very personal, private thing. The art world has intruded and just eaten young people alive. I think social media plays into this too, the need to be famous. Making art and fame need to disengage.

MF: It’s a long game. Whether as adults or as young people, we are so used to wanting some instant gratification. It is like baking cookies. You can’t take them out of the oven too soon, even though you’re hungry, and you just have to let it develop. People develop differently. Some people are very prolific, some people are slower, some people start with one medium, and then they give that up because their true medium is something else. And you can’t know that by rushing it. You have to give yourself time, under the correct guidance, no matter how many years it takes. And the other thing I’d say beyond that is that as an artist or a gallerist, you have to diversify your revenue streams. The days of being a gallerist where you sit in there and you put stuff on the wall and that’s how you make your living by selling that stuff is probably not going to be happening right now. It’s true for artists too. Just going in your studio, making work and selling it isn’t going to be enough.

SW: You teach and I do a lot of consulting with people who I don’t represent.

MF: That adds to it, it takes the pressure off and it’s a very practical form of income for me. And it informs what I do as a gallerist. The other thing I would say is, as a gallerist, don’t feel that that you have to do everything that everyone else is doing. When I started, I thought I had to frame all my artists’ shows, I had to do all these art fairs, and before you know it, I was spending so much more money than my gallery was generating. You may have to start small, do little by little. You may want a bigger space. You may want a fancier website, you may want to do the fancy art fair, but just because you think you can or you have the credit to do it, it’s not necessarily a good move. You have to grow as naturally as possible.

Both of us combined have had a lot of years of experience and have seen the old way of doing it and the new way of doing it and the way we haven’t even discovered yet. Gallerists, whether they have a bricks-and-mortar space or they don’t, have to be nimble and have to be able to pivot. They have to be open to letting old ways go and embracing new ones, even if though they’re not comfortable, and even if it means embracing a technology that they don’t understand.

SW: Which may be a metaphor for getting older. Don’t just walk around saying to “those young people,” you have to figure it out, you have to keep moving.

MF: As gallerists, we hopefully have a whole knew generation of collectors who have been raised to look at the world differently and we can’t dish them out the way that we think they should be. are. If they follow Instagram feeds and that’s how they buy art from the artists that they follow, alright then, that’s not the wrong way to do it.

SW: To make someone happy is the right way for them, frankly, and I totally agree.

MF: We have to be adaptable and changeable and that’s the bottom line.

MF: The generation before us got into it for a lot of the same reasons we got into it and that’s because we love it, we love the art. Very few people get into it because they think it’s a great financial opportunity. I think they have a genuine knowledge and love for the artists and that artists’ process. I think the biggest difference is that when they were doing it, there was one way of doing it, and they did it that way. Now when you enter, there are many ways to engage with it and there’s not one right way. And I don’t think there’s an end goal either. I don’t know what the best scenario is. I don’t know any more.

SW: Maybe we’ll be selling art from, instead of a food truck, an art truck. I said to people when I was doing this transition, that I was going to do pop-up shows when I had a show that was crying out to be seen. And I firmly believe this that would be very normal. Right now it’s not as much the norm, but I think in a year it’s going to be.

MF: Even in New York there have always been event spaces, dedicated spaces for exhibitions, retail pop-up that could easily be gallery exhibitions. That’s what their business model is, to take people like us, or fashion brands that are just starting, and do a pop-up – whether it’s one day, 24 hours, or a week or a month. So they understand that there’s a need for that and we’re happy to do that.

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Letting Go of Brick-and-Mortar at Christie’s Education


Letting Go of Brick-and-Mortar:
the Future of the Gallery

Wed., September 21st

Panel Discussion and Dialogue: 7.00-8.30 PM
Wine and Cheese Reception: 8.30-9.30 PM
Christie’s Education – 1230 Avenue of the Americas 20th Floor, New York, NY 10020

Register here or use the order form below.

 

Gallerists are under unprecedented market pressures leading many to move on from the brick-and-mortar gallery convention. Prominent amongst these are Nicole Klagsbrun and Jay Gorney, who will present on alternative entrepreneurial and curatorial models. Noted art market analyst and journalist Josh Baer will provide historical contextualization and structural insight. Richard Lehun, founding member of the Stropheus Art Law Collective, will present on the opportunities and challenges created by these new art business practices. The event will be followed by a reception with a selection of curated wines.

Panelists

Nicole Klagsbrun, moved to New York from Belgium in 1982 where she became director of the Olsen Gallery. In 1984 Klagsbrun co-founded Cable Gallery. In 1989 she started her eponymous gallery in Soho, which made the move to Chelsea in 1998. Nicole Klagsbrun Gallery represented noted artists including Jimmie Durham, Candida Höfer, Elaine Reichek, Billy Sullivan, and Mika Rottenberg. In 2013 Klagsbrun gave up the gallery model to work from her office on 26th Street.

Jay Gorney, a native New Yorker, worked at the Sidney Janis and Hamilton galleries, opening Jay Gorney Modern Art in 1985 in the East Village. During its 13-year run, Gorney represented Martha Rosler, James Welling, Gillian Wearing, Haim Steinbach, Jessica Stockholder, Catherine Opie, Sarah Charlesworth and Allen Ruppersberg, among others, and mounted major exhibitions of the work of Richard Prince, Michaelangelo Pistoletto, and Joseph Kosuth. Gorney moved his gallery to SoHo in 1987. In 1999 Gorney joined forces with John Lee and Karin Bravin to form Gorney Bravin + Lee, which showed artists such as James Siena and Justine Kurland. As director of Mitchell-Innes & Nash’s Chelsea space from 2005–2013, Gorney built a program centered around mid-career and younger talents, including Virginia Overton, Chris Martin, and Pope.L. In 2013 Gorney transitioned out of the physical gallery and is currently an independent advisor and curator, and the special advisor to the estate of Sarah Charlesworth.

Josh Baer, is an art advisor, curator and art market journalist. He began his career in 1979 as director of the influential White Columns, and ran his own gallery from 1985-1994. After closing the gallery, Baer decided to focus on private art advising, teaching and writing. It was the same year that he launched The Baer Faxt, and started teaching arts-administration at The Fashion Institute of Technology. Later he became a bi-weekly contributor to New York Magazine. Baer advises collectors and curates exhibitions for leading galleries and auction houses from his office in downtown New York.

Dr. Richard M. Lehun, Esq. is responsible for artist-gallery, consignor-auction house, agency, and other fiduciary relationships at Stropheus Art Law. He completed a doctorate in fiduciary law from McGill University while cross appointed as a Visiting Researcher at Harvard Law School. Lehun has a Magister in Aesthetics from the Goethe Universität, Frankfurt am Main, and a fine arts diploma from the German Film and Television Academy Berlin (dffb).

Letting Go is a collaboration between Christie’s Education and Stropheus Art Law.

 

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Martin Shell: Commercial Leases in the Art Context


Commercial Leases in the Art Context: Survival Guide

{Audio transcript} It’s a pleasure to be here. As my introduction discussed I’m in real estate litigation, and I do a lot of landlord tenant litigation. So, from that fire I have some tidbits that I think can help anyone who is negotiating a lease. We’ll start with the premises that you have made it to Williamsburg, you’re ready to set up shop, and the landlord hands you this piece of paper. Now, certainly let’s start with the premises that you want a lease. A lease gives you the right, legal right, to occupy the space. If you don’t have a signed writing, a contract, a lease (it can have many names), you arguably have no right to be there, and it would be very easy for somebody to remove you. So, if you’re confronted with this situation, you certainly want to say to whoever is about to give you the space: “I want a lease.”

Leases start out as a general form. The form is about six pages that’s been used probably for over twenty years. But, of course, in New York, things aren’t that simple. So, the six-page lease attaches to a forty-eight page rider. The rider is attached to the lease and you have to worry about all the terms and conditions in there. So, I think it’s helpful to go through a couple of those terms and how they may affect you in a court at some point.

So, let’s just talk about who is going to be signing this lease. You have the owner of the premises – the landlord – and you. Now, you do not want to sign any lease individually. Why? Because you are individually liable for all the money due under that lease. It’s much better if you have a company that is responsible, because then that company can shelter you from liability. And there’s the magic takeaway term called a ‘Good Guy Guarantee.’

You want a Good Guy Guarantee that states you are agreeing to pay the landlord a certain amount of money should, unfortunately, things go bad and the landlord wants to remove you from the premises. In that case, at least you are not on the hook for the whole term. Most leases are five years, could be ten years. If you enter into a lease in year one, and unfortunately things don’t go as planned and you have to leave, you are liable for the remainder of those four years, depending on the length of your lease.

Now, it just so happens in New York, that most likely a landlord will find somebody else to take over that space. However if they can’t, and there’s no obligation, repeat no obligation that the landlord does that, you are on the hook for those remaining years. It’s far better to have a company on the hook, that you could potentially put in bankruptcy and not care about, than you individually. Thus, the Good Guy Guarantee. Basically the way it works is, you would say to the landlord, “look, when I leave I’m going to be kind. I won’t owe you any money, but I’m going to leave before the lease ends and you agree not to come after me individually.” One good takeaway.

Another thing is, any lease is going to require you to give a security deposit. Footnote here: generally, security deposits are one to two months, maybe three months. Security does not apply to rent. A lot of people think, oh, I’m going to leave, I’m going to just use my security deposit. Doesn’t work that way. Security deposits are for your destruction of the property. So when you leave, if something has to be cleaned up, that’s what the security deposit is for. Otherwise, the landlord is supposed to return it to you. In practice, I understand a lot of times it does get applied to rent, but that is actually not the way it’s supposed to work.

You certainly want to make sure that the amount of rent is clear in the lease. So, if you’ve agreed to pay $1,000.00 a month, you want to make sure the lease says $1,000.00. The lease is also going to have an escalation clause. Every year the lease money due is going to go up; you’re going to have to pay more rent. So, you want to make sure that’s correct.

The next big thing on the lease is the use of the lease. And, in this particular instance, you’re going to be using it for commercial purposes. So, it is important when thinking about commercial purposes that it is used for such. That means you generally cannot sleep there. You don’t get to sleep there, you don’t get to have your friends sleep there. It’s not your apartment; it’s used for business purposes.

If you’re not using the lease the way it’s supposed to be used, you may be considered in breach of the lease. Now, the takeaway with this is, whatever the use clause says, you want it to be as broad as possible. So let’s say you’re an artist and your going to make, going back to my high school days, wicker baskets. I know every professor I had used wicker baskets, but you don’t want it limited to just wicker baskets. Because, let’s say the world doesn’t want to buy wicker baskets. You want to make something else, so you want broad use terms. You want to say, I want to use this place to create art. The landlord shouldn’t care.

Let’s talk about another big provision in leases: assignment and sublease. Every lease includes such a provision, and in general, every lease says you cannot do either without the Landlord’s consent. Let’s talk about it – what is an assignment? An assignment basically says that somebody else is going to come in, take over the space and pay the rent for you. Rather than the rent coming from you personally, it’s going to come from the person who’s taken over. That person is called the assignee, you are the assignor. Generally, that’s not allowed without landlord consent.

The other big thing is called the sublease. That is, when I rent out the space to someone else. They pay me and I’m still generally paying the landlord. Assignment and sublease both kind of overlap, because the principle is the same. You’re no longer occupying the space, and somebody else is there, and it becomes their burden to pay. However, the kicker is, if they don’t pay, you’re still on the hook to pay. It doesn’t necessarily matter.

Now, in general, both of these are not allowed. And people get into trouble with this all the time. Especially with services like Airbnb. You think, oh great, I’m going to leave for the weekend and get somebody else in here. Generally it’s not allowed, and if the landlord wanted to enforce the terms of the lease, that would be considered a breach. So, without going into great emphasis on AirBnB, my general recommendation is it’s probably not the best idea with a commercial space.

Let us talk a little bit now about defaults, which is how you end up in court and potentially talking to somebody like me. So, generally it’s a failure to pay, usually rent. Now let’s talk about this, because this is another important takeaway. Under New York statute, if you fail to pay your rent, a landlord may send you a three-day notice. Only three days. You have three days to pay your rent or they’re going to take you to court and then they’re going to (again, this goes against your record, because this is a public record) try and collect the money from you in court.

So, what do you do? You want to negotiate a longer cure period in your lease. You don’t want just three days to pay rent on demand. I would argue you want 30 – 60 days, try and get as many days as you can. There is no set rule here, but hopefully you can negotiate something longer than three days.

Now, regardless of what you negotiated, if you haven’t paid your rent, you are likely going to get some sort of notice. That notice may be called a demand for payment, or it may be called a ‘Notice to Cure.’ You have a period of time in which to cure. So you have to pay your rent. What happens if you don’t? You are going to get a legal action brought against you. You’re going to be served with papers. Here’s a very important thing: the landlord cannot lock you out without a court order. So, he can’t scare you and say, “I’m changing the locks, you didn’t pay the rent.” I would love it if landlords did that because then you could sue them for damages.

Rest assured, you cannot be locked out. It is a very lengthy process before you would actually be removed from the premises. Probably takes two or three months. But, taking that a step further, once you fail to pay your rent and are now in court, the landlord sued you for a very important non-payment of rent. Generally, what’s going to happen in court is the judge is going to want you to enter into some sort of settlement. The agreement is likely going to provide for a longer term to pay the rent. Most landlords are not going to kick a tenant out immediately for failure to pay rent. There’s going to be some sort of extension of time period.

If you fail to pay during that period, you will be removed from the premises. A lot of tenants that I get will ask, “Can I avoid that?” The answer is no. No landlord is going to agree and just say, “I got it, I took you to court, you failed to pay your rent, I’m just going to give you another chance and start the whole proceeding over again.” Doesn’t work that way. The landlord wants the space. More importantly, they want their money. Unfortunately, that’s the world we live in.

So, you’re going to set up some sort of payment plan and if you pay you’ll be allowed to stay. Let’s say you don’t and you can’t agree on the payment terms and you just can’t afford to pay. Ultimately, you will be evicted. How does that process work? Very quickly, it works in this sense. The judge enters a judgment of possession for the landlord and claims a warrant of removal shall issue. Then the landlord has to go to a marshal. The marshal goes to court and submits the paperwork to get the warrant of removal issued by the court and the judgment of possession. Only a marshal can do this. The landlord cannot do this personally. The marshal then comes, puts a notice on the door, and says you’re going to be evicted. And generally – I think it’s six days – the marshal says, “I’m coming back in six days to remove you.” You have now six days to try and make some sort of stay, which you could do by paying the rent at any time to stay longer, or, ultimately, you may be locked out of the premises.

But, keep in mind, once the marshal comes, you definitely want to come see me, if you want to continue to stay in your space.

Now, some overview of the notices that we’re talking about here. You have:

The Notice to Cure starts everything (or, demand for payment). So, you want to try to comply with that. At the very least, you want to call your landlord and say, “I know I haven’t paid, I need more time.” I think a lot of time, the reaction is to run for cover and think nothing’s going to happen, and bury your head in the sand. Generally, it doesn’t work. The landlord is going to come after you, unfortunately. They are either going to want your money or somebody else’s money, right. So I recommend trying to make a deal.

After you get this Notice to Cure, what will likely come down the pipeline is a Notice to Terminate. This is a very important one: Notice to Terminate. You don’t want one. If you get a notice to terminate and it becomes effective, you’re going to have no rights. The court is not going to be able to help you do anything to continue to stay in that property. I’m going to talk about the notice to terminate again in a little bit, because it comes up again, but I just wanted to mention that.

Then after this notice to terminate, you get some court papers. The court papers that are filed are called the Notice of Petition, followed by a Petition. You get served with the papers. Ultimately, then there’s the Warrant of Removal that gets served on you by the marshal. It’s quite an extensive process.

In Kings County, I can tell you that it could take anywhere from three to four months to get an eviction. Manhattan’s a little quicker, and generally you can get evicted in about two months. Now, you only get evicted – very important here – for a breach of your lease. So, obviously a non-payment is the most frequent, and the courts are familiar with this and there are procedures in place to offer forgiveness. So if you’re not paying your rent, what may happen is that a landlord goes to court and asks for non-payment of rent, and the judge is going to encourage you to work out something to allow you to stay.

There’s also a breach which doesn’t involve non-payment. These are a bit harder to deal with, and let’s just talk about some of the things that result. You’re paying the rent but you can still be in breach of your lease. How can that occur? Number one: you’re assigning your lease or subletting your lease. This happens all the time and all that I can say to you is the best advice is don’t let your landlord know.

Okay, and if your landlord doesn’t know it’s not going to hurt you, but if your landlord knows and doesn’t like it? Well, landlords like to be in the business of being a landlord. They don’t want tenants to be landlords. So if you have a landlord that thinks, well, I’m charging $2,000.00 and now your subleasing and making $1,000.00, well, I want that money. And by the way, most leases will provide a provision that allows them to recover such money, even in a court of law. So, assigning and subleasing generally constitute a breach.

If you fail to get the necessary permits to operate your business, that is a breach. If you fail to maintain insurance – big one. Landlords want to know their space is correctly protected with insurance. They usually require proof of insurance every year. If you don’t provide them that, that is called material breach, and it could result in removal. If you’re serving food and you need a health permit, for example. Or, if you alter the premises without consent. In fact, I’m in a landlord / tenant trial right now where the commercial tenant painted the facade white and the landlord is incredibly upset.

So, you don’t want to make alterations without the landlord’s approval. Now, these are all breaches that don’t include payment. What is going to happen in these sorts of breaches is very similar to non-payment of rent. You’re going to get a notice to cure. It’s going to give the time period that is provided in the lease to fix the situation. Obviously, from a tenant perspective, you want as much time as possible. Let’s say you cannot fix the cure within the time frame. If you cannot do so that is going to allow the landlord to terminate the lease.

Remember I discussed this earlier: termination of the lease is a bad thing. The court can’t do anything for you once your lease is terminated. So, it’s very important to extend your cure period. The courts allow that by something called a Yellowstone Injunction. The takeaway here is that you can extend your cure period. You want to make sure your cure period is extended before your lease is terminated. You go to court and say, “I got this notice to cure, I’m going to fix this, I’m going to get insurance, judge please don’t let them terminate my lease, I want to stay in possession,” and the court will grant it, almost always. As long as you can fulfill the requirements, you’re going to get it.

The requirements are very low, for a reason. The judges in the courts want to give tenants the ability to cure. But if you don’t do it, if you fail to cure in a timely fashion without it being extended and the termination notice is triggered, then you’re not going to have any defense. You will ultimately have to be removed. So, the Yellowstone Injunction is very important.

I wanted to mention one other thing, one final little tidbit to take away from this is to negotiate attorneys’ fees. Obviously, we all like to get paid. So, every lease includes a provision where if the landlord has to remove you, pursue you, they get their attorneys’ fees back. So even if you owe $10,000.00 in rent, now you are going to have to pay their attorneys’ fees as well.

What you want to always include is reciprocal attorneys’ fees. You always want to have a good offense if they’re pursuing you, and you can countersue them for something. Say the landlord breached the lease and didn’t provide some sort of service that he was supposed to. Then you could try and get your attorneys’ fees back. It provides leverage down the road.

So when you’re negotiating your lease, I’ll leave it at this: try and get your attorneys’ fees reciprocal, as long a cure period as possible, a Good Guy Guarantee, and don’t sign the lease in your own name. And if you want more tidbits, call me.

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Interview: Ed Winkleman


 

Selling Contemporary Art: How to Navigate the Evolving Market

Hi, I’m Richard Lehun. I’m here with Ed Winkleman at Bruce Silverstein’s Chelsea Gallery. Ed has just released his follow up to his best seller, How To Start And Run A Commercial Art Gallery. Ed, can you give us some context on the new book?

Ed Winkleman: Selling Contemporary Art, How To Navigate The Contemporary Market was just published by Allworth Press in September 2015. The book is the second in a series of books, hopefully. I started talking to my publisher about a revision to my first book about two years ago, and we decided rather than rewrite that book – because not a lot has changed in that field – it would be interesting to do a follow up that was more the graduate level, more about the strategies, than the simple logistics that are discussed in the first book.

RL: It’s a big commitment to write a book. What was it that motivated you to choose to do this right now?

EW: Well, to talk about the themes of the book, it may help to say that I realized a little into it that what I was doing was both deconstructing my first book, as well as trying to answer the question is whether “the Leo Castelli model” is still viable. The Leo Castelli model is essentially the model that I used to write the first book, and Leo Castelli [1907-99] was a New York art dealer who didn’t innovate much about the way that one sells art, he sort of consolidated it and set it up as a set of best practices. And virtually every young dealer who was influenced by Castelli, approached their gallery thinking that that’s simply the way it’s done.

And a lot of the dealers operating right now began their galleries thinking indeed, the Leo Castelli model is the way that it’s done. But the various themes I’m looking at in the new book begin to pull that model apart. And so, as I was writing each chapter I was thinking in the back of my mind, “How does this affect what I wrote about in the first book, is that model still viable given these things that are evolving and changing?”

RL: Is the Castelli model sustainable in light of market developments?

EW: The Leo Castelli model is a phrase that somebody coined long before I started using it as a framework for my book. Very specifically, that author used it to describe a gallery approach which included: discovering artists that very few other people knew about, building and protecting a market for those artists, and with the centerpiece of that model being that there was loyalty between the artist and the dealer, that they were in it for the long haul, and the hope was that they would grow old and rich together. And that arrangement, that gentleman’s agreement, if you will, was the heart and soul of what people meant by the Leo Castelli model.

Very specifically, that permitted a dealer to invest a lot of money up front in an artist, to help create a market for them, take some risks, do some shows that wouldn’t necessarily pay for themselves, because the thought was that “we’ll be together many many years from now, and what we’ll do today will benefit us down the road.”

One of the things I discuss in the book a fair bit is how there is a threat to that model coming very specifically from the rise of the mega-gallery. And the idea of whether or not artists and dealers are loyal to each other in the same way they were when Leo Castelli built his gallery.

RL: You extensively discuss issues of globalization. Can you give some examples of the challenges?

EW: In the chapter on globalization, I discuss several strategies a mid-level or a small gallery might take to deal with the ongoing globalization of the art market. One that I spend a fair time on is collaboration. And collaboration is being explored more and more by galleries in both a defensive, as well as an offensive sort of way.

A gallery from Paris that I know teamed up with a gallery in Berlin, very specifically to keep bigger galleries from poaching their artists. And the idea is, “if I have an artist, and I have a gallery in New York, my artist really wants international attention, and so a big gallery in London starts to show that artist, if that gallery has more resources than I have and one day open up a space in New York, I might lose my relationship with that artist.” So, the strategy is to team up with a smaller gallery in London and kind of share that artist with them, knowing that they don’t have the resources to come to New York and eclipse you entirely, that you can have this mutually beneficial relationship move forward.

A really good example is the Paris gallery Jocelyn Wolff, who collaborated with a bunch of friends and other dealers on a space called KOW in Berlin. I think that initially they were very tightly collaborating on that. I believe that Jocelyn pulled back a little and isn’t as involved, but they have shared artists. And that model is a really good example for other galleries to follow. And again it’s a defensive move so that the bigger galleries in Berlin weren’t giving the Paris gallery these artists a show here and there, and the next thing you know, representing them exclusively.

We’re seeing a lot more of are two galleries proposing and then presenting an art fair booth in collaboration. And another example would be, one gallery has a very well established artist and one gallery has an emerging artist, there’s a very interesting dialogue between the two of them. These types of proposals are very popular with the selection committees of the fairs. And it’s a win-win for the galleries participating. They split their costs, and they double their exposure, and so they get into these bigger fairs. And there were a few art fair directors that I interviewed for the book who say that that is actually a very popular thing among the selection committees. So, it’s another strategy in terms of collaboration.

There’s another idea about collaboration that I think we’re going to talk a little bit later – joint events between galleries. It’s happening because galleries in small pockets of the world feel the need to attract an international audience, to let that audience know that they exist. Perhaps, they meet some of these international collectors at the art fairs that they get into, it’s really important to them to bring those collectors back. The most successful of these is Gallery Weekend Berlin. It brings collectors from around the world. And there was a joint event in collaboration among galleries there that were just not seeing those collectors any other time of the year.

RL: Can you discuss the impact of the mega-galleries, and the stage of the phenomenon that we are at right now?

EW: So, the phenomenon is something that’s constantly ongoing. It impacts on each individual artist. Art is very often a slow boil. An artist may take decades before they’re making the work that will enter the canon and be culturally very significant. The mid-level gallery system has, for the last 40 or so years, provided the support system for artists, so they could experiment at a pace that didn’t necessarily have to match the goals of a mega-gallery, the goals of the art fairs, etc. There was a built-in capacity for galleries to have some artists who weren’t necessarily covering their costs, but they believed in their work. The artists still participated in the system, still get regular exhibitions, still get press, opportunities for sales.

And the rise of the mega-gallery has started to make that model or that support system pull apart at the seams. It doesn’t make any sense if profit is your goal or your need, actually, as costs continue to rise. More and more, because of the pressure of the mega-gallery, dealers are finding out that they do not have the time to have the conversations with those artists to discover whether or not they fit into the category of the slow burning sort of “future artists in the canon.” The financial pressures don’t really permit that to happen much anymore either, and the number of dealers I respect who have closed their galleries recently have cited exactly that: their inability to have that relationship with artists. And that is part of the reason they got into the business in the first place.

RL: Do you believe that these developments [of galleries closing due to financial pressure and inability to have relationships with artists] are inevitable?

EW: A lot of the people that I know who opened galleries, not because they every thought they were going to get rich, but because they believed that art dealing was a calling for them, are saying “Okay, this isn’t the business for me anymore.” I don’t think a lot of them are looking forward to becoming more corporate. I think they’re hoping that it is a blip, that it will sort of fade and they’ll figure out a way to survive, kind of continuing to do what it is that brought them into the business in the first place.

RL: Can you give an example of how these challenges are affecting established gallerists?

EW: A really good example of a dealer who found herself in that situation was Nicole Klagsbrun. She had a great line in the press release she sent out about why she was closing the gallery that she had had for over twenty years which was “I’m not sick, I’m not broke, this just isn’t interesting for me anymore.” And, Nicole is the textbook example of someone who had a great eye, and an amazing conceptually rich program. But she felt that in order to continue to succeed and to not lose her artists to bigger galleries, she needed to do the sorts of things that she wasn’t interested in doing. She needed to operate more like a corporation, and lose the ability to talk to her artists, to be in studios the way that she wanted to. So, it wasn’t a financial issue for her. It was really that this model, this business, had evolved to a place where it wasn’t what she wanted to do anymore. She has since gone on to a number of projects and collaborations.

So I do see a big trend in dealers who say, “You know what, the brick and mortar sitting there, while I compete at the art fairs really doesn’t make any sense to me anymore, but I have the passion, I’m still very interested in these artists and their projects and I will find a way to kind of bring their projects to the public.” So, there’s a chapter in the book on the post brick and mortar dealer, and there are a few examples of high profile dealers who are doing very interesting things in that vein, and with more time would have added Nicole to that list as well.

RL: How can gallerists best respond to these challenges?

EW: The second part of the book looks at things the dealers actually have control over. And it begins discussing a conversation I’ve had for a number of years with the art dealer Elizabeth Dee, who has been an inspiration to me in the way she has approached things since the recession. The only way that galleries can deal with the paradox that they are faced with now is to not let somebody else define what success means for them. So very specifically, what I try to communicate in the second part of the book is that there are people who are defining success on their own terms, and those are the only terms that should matter to anybody who is an entrepreneur and starts their own business. And letting the system define what success means to you, especially in something that can be as individualistic as running a gallery, just makes no sense to me. I think people have gotten caught up in the glamour and the press, and all the rest of that mega-gallery system, and let that led them to make decisions that they would have never made were that not happening.

RL: How has the rise of the mega-gallery affected collectors and connoisseurship?

EW: It is definitely having an impact on connoisseurship, if only in the way that it’s eliminating the need for individual collectors to develop connoisseurship. In regards to the buying strategies at the emerging level, the prices are so low, it’s a no brainer, just buy a bunch of them, your are not really going to lose that much. In the mid-level where the prices have risen, this is real money for you now; you want an assurance that you are making a smart investment. At the blue chip level, and this is the level where the mega-galleries are operating at, the assumption is that most of these artists, if not all of them, are already in the canon. They’ve been vetted and your money is safe buying that work. So, if all you do is buy from mega galleries, you don’t really need to develop your own eye, you don’t need to study art history. Every choice you make seems, at the moment at least, to be a sound investment. Some of the mega-galleries’ artists won’t pan out, it’s just not possible that they all will, but the majority of them probably will. And so, the mega-gallery existence itself has eliminated the need to go out and learn and study on your own. Of course, at that price level, not a lot of collectors can actually buy consistently from the mega-galleries, and so I am kind of optimistic that the mid-level galleries will continue be a force. And the mid-level galleries can only continue to exist if connoisseurship remains in place and part of the collecting culture.

One other thing about mega-galleries is that I have to praise them for the quality of the exhibitions they create, as well as the fact that they have increased the overall size of the contemporary art world to an unimaginable size. I’ve seen a few mega-galleries do what I think is the right ethical thing, which is to collaborate with the smaller galleries from whom they’re poaching artists. I won’t name names, but one of the mega-galleries is really great at this. They will let the smaller galleries who discovered and nurtured and actually built the market of the artists that they’ve poached, have access to that work over the course of several years. That money is the only thing that helps the smaller galleries survive. So that mega-gallery is doing both, the program that they want and charging prices that they want. By letting that smaller gallery have some of that access, they’re keeping that mid-level gallery healthy. And if that happened more then the mid-level gallery system could keep doing its job of finding the artists and feeding them up to the mega-galleries – that’s all fine – but when the mega-gallery just cuts off the connection of the artist and that smaller gallery, that’s where the real existential threats starts to come in.

RL: Is the poaching of the Mega-galleries dis-incentivizing the mid-level gallerists from investing in artists?

EW: Zooming in and looking at the gallery system holistically, there’s no question in my mind that young gallerists will continue to pop up constantly. We’re not going to see the death of the gallery system below the mega-gallery any time soon. And the mid-level of the gallery system will probably continue in much the same way. What I do see the mega-galleries influencing are the type of people who will be willing to be a mid-tier gallery. I do think what I would call the true believers may make career changes. They won’t sit there knowing that every time they discover an artist, the artist is just going to be poached, and the payoff and the investment they put into it is never going to come back to them. I can’t see sensible people doing that unless they are extremely wealthy, and it’s more a hobby for them than an income.

RL: Are art context ethics strained by the market developments?

EW: Ethical standards are not universal; they’re unique per industry by definition. So, when we talk about ethics in the art market, I like to bring that point to the forefront very clearly, with regards to what defines honesty in the art market, and what could make somebody be honest in a way that the book discusses – being required to reach the mega-gallery stature – is treating your collectors the same way you’re legally obligated to treat your artist, which is to ensure that everything you do is in their best interests. Now, I don’t believe in New York State you have the same legal obligation to collectors as you do to artists, because you’re acting as the artists’ agent, but I think the dealers who still treat their collectors that way benefit from that.

RL: Are art fairs now a necessity for even the most idealistic of gallerists, in order to remain financially sustainable?

EW: How essential are art fairs to any given gallery success varies depending on who you are talking to. And the more I think about it, the more I talk to dealers, I think it relates very specifically to their goals. Very few galleries that I talked to don’t feel the pressure to do fairs. They all are hearing from their artists that their artists think they should be doing fairs, even if they are not doing them. And a lot of galleries will tell me point-blank the fairs are the only way they survive. They’re not making anything close to enough sales through the gallery itself, even through their online efforts, as they need to pay the rent, their overhead and themselves and everything else. So yes, we have reached a point where a lot of galleries do rely on sales they make at the fairs to sustain the business, no question whatsoever. But again, I know a lot of galleries who don’t do fairs, and I think they just manage the expectations, whether they’re losing artists, or are more ambitious than other galleries, is another question. That model is viable, you can eschew the entire art fair system, but you’ll probably will never get really wealthy doing that, unless you have a niche market where the whole world has to come to you. If you’re playing the same game across the board with everybody else, the art fairs are almost critical.

RL: Are galleries providing ambitious content, while blue-chip galleries monopolize the earnings at the art fairs?

EW: There is a phenomenon happening lately, where the big art fairs, very expensive air fairs, that a lot of smaller galleries clamoring to get into are only benefiting the big galleries that are doing them. Partly because it comes to the fact that to get into fairs you have to impress the selection committee, and to impress the selection committee you have to bring something that stands out. Very often galleries translate that into something spectacular, maybe a site-specific installation, or something like that, which really doesn’t have much of a market. Annette Schönholzer, former director of Art Basel, talks in my book about a gallerist virtually in tears at the end of the fair because they had brought something and it didn’t sell, and what were they going to do, this was all the money they had. They’d rolled the dice on this one thing. And she replied, “Well look what you brought? Did you think that was sellable in any context? Why would you think that was sellable here? We only let you in with that because you said that was what you wanted to present.” And her point was that the fairs can let you present it, but they can’t sell it for you. I mean that the younger galleries are expected to bring the new sensational, and literally just to bring the street-cred to the fair, while the bigger galleries get to cash in by more or less selling the brand names that they’re known for.

RL: How can gallerists best respond to this?

EW: The best advice to a gallery who wants to get into the big fairs but doesn’t want to lose their shirt on it, is to propose a booth of one of your artists who is sellable at the time when they’re about to have a major museum show or major magazine cover. That’s the key. Don’t think too much about making a big splash. Time it so that the selection committee has heard of that artist, their show’s coming up and it would be embarrassing for them not to have that artist in the fair. Be a little more strategic, but definitely don’t do the spectacle if you can’t afford to do it. That is a bad way to go.

RL: In the book you cite Tom Weinrich about the breakdown between art criticism, scholarship, and market value. What does this mean to you?

EW: Very specifically, when a gallery would get a New York Times review on Friday, that Saturday they would be flooded with new people. They would come in with clippings of that review, and they would generally sell a lot more that day than they had sold throughout the run of the show. That phenomenon has more or less evaporated. And I think to a large degree when that was really important, when a review would help bring the crowds in and help sell the show there weren’t as many channels to learn about art as there are today. I think The New York Times and Art Forum and ARTNews in America were the only ways that collectors could learn about what was perceived as good. Now they can get information constantly. Those reviews aren’t as critical, so they are not leading directly to sales the way they used to. That has done two things, I think; it’s made the dealers care less about those reviews, and it’s sadly made the collectors also care less about those reviews. And so I am a little concerned about the role that art criticism can play in the art market. Most art critics would say they don’t have a role in the art market. But the fact that they’re talking about their lessening influence suggests that they would pride themselves if they did have an impact in the art world.

RL: Has your relationship with art criticism changed?

EW: My relationship to art criticism has unquestionably changed over the past 20 years. I, in addition to being an art dealer, also do a little art collecting, and I don’t know that I necessarily pay much attention to art criticism when I’m buying. I’d like to flatter myself with saying that’s just because I’ve developed my eye, but that’s the same argument I hear from every collector. With regards to being a dealer, my relationship and thoughts about it are exactly the same. It’s still really important to me that there be a historical record of the exhibitions that we do. That the dialog be out there, that people debate the work that the artists are presenting, and art criticism, really well-written art criticism, is still the best means of having that conversation.

RL: What can you tell us about emerging trends of post brick and mortar gallerists?

EW: There are some great examples of what I would call post brick and mortar dealers, and some of the things that they share as key characteristics. First and foremost, they still have the spirit of a gallerist. They approach presenting artwork the way gallerists present artwork, in a space. They usually kind of sweat the details about the entire experience for the viewer. The other thing that perhaps separates them from a private dealer or an advisor is that these folks still have a boatload of credibility in the commercial art market. No matter what they do, and no matter how they frame it or contextualize it, the bigwigs in the commercial art world still pay attention, because of their track records.

RL: What are Jeffrey Deitch, Mari Spirito and Jay Gorney doing right in your eyes?

EW: The Characteristic that defines Jeffrey Deitch is his own personality. He is larger than life and he’s interesting in and of himself. So, what he’s interested in, a lot of other people find interesting. And he’s got the track record to prove that what he’s interested in is going to be fabulous and worth your time.

The major characteristic of Mari Spirito, other than she is brilliant, is that she’s a true believer. She will find and show the great artists that took her years to develop and discover. And she’s in the trenches. She will show historically very important work; but also some brand new artists coming from someplace nobody knew there was an art scene. So, Mari is a total true believer.

Jay Gorney for me is probably the most interesting, in that I think he’s going to start changing the perception of what somebody can do as a dealer post brick and mortar. Not only is he curating really great exhibitions that are selling very, very well, he’s being accepted into art fairs because of his history and because of his knowledge. The art fairs are still saying that if you don’t have a space we won’t let you in. Jay Gorney is going to break that down, and this is going to have a big impact and implications for other dealers.

RL: Excellent. Do you want to add anything?

EW: No, except these were really great questions. Your attention to this is really impressive. Thank you.

RL: Thank you Ed, thanks for this wonderful conversation.

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Art Advis­ing 2.0 : Ver­tigo & Accountability – Part II


The rise of the art advi­sor tracks the glob­al­iza­tion of art busi­ness. Art advi­sors act as a bridge to new classes of col­lec­tors, but the role is often not clearly defined. Gal­lerists, deal­ers, art fairs and col­lec­tors encounter a het­ero­ge­neous pro­fes­sion.

This event, held on April 1st, 2015 at Sotheby’s Institute of Art, explores cur­rent eth­i­cal and busi­ness ques­tions that art advis­ing cre­ates and the legal oblig­a­tions that their rela­tion­ships rely on. Art Advis­ing 2.0 — Ver­tigo & Account­abil­ity is a col­lab­o­ra­tion amongst Sotheby’s Insti­tute of Art, the Asso­ci­a­tion of Pro­fes­sional Art Advi­sors, and Stro­pheus Art Law.

Moderator: , Chair, Committee on Fine Arts, New York State Bar Association, Entertainment, Arts and Sports Law (EASL) Section, Attorney and Faculty at Sotheby’s Institute of Art

Panelists:
Sean Kelly, Sean Kelly Gallery
, Attorney at Stropheus Art Law
, Executive Director The Armory Show
, Megan Fox Kelly Art Advisory

A dedicated audio recording of Noah Horowitz’s comments precedes his text. A video of Megan Fox Kelly’s PowerPoint presentation can be found in the section on her presentation below.

Part I of this event is here.


Noah_webDr. Noah Horowitz

All right, I’m scared. The obligations are really serious. I’m going to principally speak from my capacity at The Armory Show, which I think which is may be most relevant. But, just to set the stage, I think there are a few, large picture items that Judith addressed, Sean addressed a little as well as Richard, that I think are worth hitting a little off the bat.

All of this growth, the reason there are 150 plus people probably here right now in the art advisory business probably has to do with the tremendous growth of the art market in its own right, and the rampant professionalization that we’ve seen in that space over the last 20 or 30 years or so. Sean mentioned through the outset of his career, really the art market, even in the 80s and early 90s was very small. He knew most people professionally implicated. Now that’s certainly not the case.

There are good things and bad things that happen with that. I’m a proponent, and I think most people in this room probably believe we’re in a better place because of those changes. That being said, it’s brought a lot of additional variables and uncertainties into the equation.

Art advisors in the simplest sense, in my estimation, generally provide a great deal of value. Again, [art advising] is not my professional occupation. That being said, I, like many people, probably have a lot of people asking them questions about the value of artworks and how to conduct themselves in the market.

One thing that struck me from early on when I was still in London, a friend of mine who is not a collector but a guy who’s made a fair amount of money on Wall Street had bought a winter home in the Swiss Alps and there was a gallery there who was trying to sell him a Damien Hirst print. He came up to me – and the gallery had given him the print, and it was already hanging in his living room – and basically he had very proudly shared with me that they had asked 16,000 Swiss Francs for it, and he had negotiated a thousand francs off of that price, and I said, “wait a minute, let me check Artnet quickly just to see if I can help you there.” And really you could see that the artwork – it was an edition of a 150 or so – I think five or six had come up in auction in the last year. The highest price achieved was $5,000 and four others were all bought in, with estimates from $4,000 to $6,000. I told him to offer the gallery $3,000, and that they’d be lucky if he bought it for that amount. He felt bad, he offered it at $5,000, and the email, which has since been deleted from my account, which is the problem with emails these days, was one of the funniest emails I’ve ever read. He forwarded to me from the gallery owner, who just absolutely lost it, and inserted a number of fiery words, which I won’t repeat here, into their response. Suffice it to say, my friend didn’t buy the work, and was already thankful for it.

The following year he went back to – I was with him, and we were skiing, I said, “Oh, let’s check out that gallery that you were talking about, just to see” – and the gallery was closed. So, the point there is: this was just 101 checking prices on Artnet, this wasn’t doing anything like Richard was referring to. I think that if advisors can help, great, the more efficient market in that sense, then that’s a good thing. And people like this, who are essentially trying to rip people off, shouldn’t be in business, and that’s a good thing as well.

There are other good things as well that art advisors provide beyond the obvious – certainly in my capacity as a fair, or really in the most basic capacity – any effort that we can make in our business to help raise people’s education about an appreciation of artworks is fundamentally a good thing. People often wonder why artworks are worth what they are and fundamentally it’s because there’s some knowledge about them. There’s an educational and an informational structure around them that creates that value. And if art advisors, like the great dealers and scholars over time, can help provide a baseline of that knowledge, that’s fundamentally a good thing.

That being said, the whole role and scope of the business have changed immeasurably. One bit of advice that I give to any dealer that comes and shows with us at The Armory that’s not from New York or the U.S. is that you’ll probably meet more art advisors at The Armory than any other fair you go to, and that’s generally true. We have an enormous volume of advisors at the fair and for a lot of our foreign dealers – I think that 55% -60% of The Armory galleries are coming from overseas, they’ve never seen anything like this. They’re used to dealing with some advisors – a lot of collectors with museum people – but the sheer number of people that are representing other people is very overwhelming to them, and a lot of them don’t know, frankly, how to deal with that.

We commissioned Clare McAndrew, who does a report for TEFAF, to do an exhibitor survey for us this year and a VIP survey, and actually we got responses back from that today, and discovered that 15% of the VIPs at The Armory Show claim that they are art advisors or consultants, which is maybe a little bit less than I thought it could actually be. Fifty to fifty-five percent said they’re private collectors, about 20% said they were art world professionals, which is basically, other galleries, dealers, curators, etc. The third biggest category was at 15%, which was art advisors and consultants.

That being said, when I talked to our VIP team to prepare for this – and I remember this in the office, when we were doing the Show this year – the number of new VIP requests we received from art advisors this year was just through the moon. I had them pull stats, and basically I’ve been told that 50% of new VIP requests to come to The Armory this year was from art advisors and consultants. Now that is a huge number of people who are writing to our vip@thearmoryshow account, trying to get access to our fair.

From my vantage point as director of the fair, in many ways this is a great thing. We can, through a single art advisor, speak to multiple different clients. And as our industry has become globalized and become faster and more people are in more places and less people can actually come to the fairs, having a really qualified art advisor at a fair like The Armory or any fair, auction or in any gallery for that matter is a good thing, because you don’t ever quite know who they’re representing, and they can speak to a client and buy on behalf of a client or take something back in six months and you might end up selling something without a client and that’s a good thing.

The problem is that it creates a lot of question marks and inefficiencies that our staff in particular – and I’m sure it’s the same in many other galleries and auction houses – have difficulties dealing with. When people write to us and request passes, we try to ask a number of questions. Where are you based? Who are your clients? How much money do you or they spend on art etc., etc.? And we do our best to filter and provide access accordingly. That doesn’t always go to plan.

One of the things I discovered this year – I don’t even know how I discovered it, I think I was just on Facebook or something – but all of the sudden there was some art advisory firm offering up free Armory VIP tickets on Facebook and Twitter. I then put that into our VIP account and I found a long correspondence where there was a big email chain from January or February where they introduced themselves as a new art advisory firm. We were told that they were buying 5 to 7 million dollars of art for their clients, annually and they basically listed every major art fair and every major artist under the sun as who they’re buying for. And yet, there they were, hawking Armory VIP passes on Twitter.

Now I have no problem with people offering passes to qualified people, but when Sean Kelly, who exhibits with us comes up to me, “Why on the bloody earth is this student asking me – at 12:30 PM of opening day of the fair – for information about Antony Gormley or something like this for his student project, that doesn’t help me do my job, and doesn’t make him particularly happy either.

Judith: Hopefully, not one of my students. [Laughter in the audience]

Noah: I think it was. [More laughter in the audience]

And I think that there’s a large misperception about why fairs ask these kinds questions, I’m not sure why the other auction houses and others ask these questions to is: Who are your representing? What are their names? Yadda, yadda, yadda. And I can totally appreciate and certainly understand certain aspects around client confidentiality and not wanting to show your hand. At the same time, unlike auction houses, we don’t take a commission on sales. We’re just a facilitator between buyer and seller, and the more information we have about who you’re bringing to the fair, the better job we can do in terms of filtering and tiering access to art dealers. Because what we want to create is a steady flow of qualified clients coming into the fair throughout the course of the week. And we don’t know that it becomes convoluted. People can get upset with us because they have too many students coming in when they should be dealing with high level advisors and high level museum trustee collectors.

So, that’s just something I’d say on that.

I think the other side of that as well is that I’m a believer fundamentally in business in life, that the more information you can put out there the better it is for everybody. I think that advisors are always worried somehow we’ll get a client’s information and then in the following year, they’ll be in our VIP system and they’ll get a VIP pass directly and they won’t have to mediate through an advisor. At some level of course, that’s true. But at the margin I think that the more collectors feel, or anybody feels in terms of going to galleries and going to fairs, the more likely they are to purchase work and be an active and serious participant. So, I don’t believe that advisors should be screening or as controlling. Maybe their business can benefit in the long term by having more actively engaged clients who are more comfortable going to fair and galleries generally.

Big picture thinking, I think that one thing that’s a concern, certainly to me wearing a bit more of an academic hat, is a lot of criticism around the fact that with this huge influx and increase in art advisors representing collectors nowadays there’s a risk, perhaps, that collectors are not thinking for themselves as much, or in fact, that collections are getting built in a like-for-like fashion.

As a result, you have certain people with certain kinds of tastes who are building collections and advising on behalf of collectors and somehow, things are starting to look the same. I think that’s a legitimate risk. I don’t think that it’s attributable uniquely to the advisor business, but it is something in our general business that needs to be addressed. And so I just sort of throw that out there, maybe that’s an interesting talking point.

Generally, what I’d say as a final note is any effort to create a more professionalized association for or professional networks for advisors, which is something that Megan will address, is a good thing for the market. Speaking on behalf of the fair, the more associations that we can liaise with and coordinate with in lieu of one by one basis individual collectors is certainly a beneficial thing, and I’d like to think there will be more such developments to come. And this is something more for the future, as the business increases; we’ll see more associations that are working in a more professional capacity. And that, by the way, is a good thing.

So I think I will stop there, and I think we will have fun conversations after.


Megan Fox Kelly6168

Megan Fox Kelly

The Association of Professional Art Advisors (APAA) is a not-for-profit organization comprised of leading independent art advisors, curators and corporate art managers. The association set standards of professional practice which all of its member advisors follow. To date the APAA has more than 100 members who are advisors and curators, building and maintaining art collections for both private collectors and major corporations. As advisors, we are objective advocates who work solely for our clients, and unlike art dealers, do not maintain inventories for sale nor represent artists. APAA members are active in all sectors of the art market, purchasing art for their clients at galleries, auction houses, fairs and online. Our organization conducts periodic member surveys which assess the total dollar values members spend on behalf of their clients in various sectors of marketplace.

Below is a breakdown of the APAA members purchasing activity in the fine art market from 2010-2013.

• 36% of APAA’s members purchased nearly $640 million in works of art at galleries between 2010 – 2103 — an 80% increase over the amount purchased between 2005 through 2010.

• 33% of APAA’s membership purchased nearly $194 million worth of art at fairs between 2010 and 2013.

• 18% of APAA’s members purchased nearly $192 million worth of art at auction – a 4% drop from 2010.

• 8% of APAA’s members purchased $829,000 worth of art on-line in 2013 –a first time measurement.

APAA’s code of ethics is a guide for best practice and is signed by ever member on an annual basis. It is covered by several key principles:

• APAA advisors are not dealers, and as such, they do not maintain inventory for sale, accept artwork on consignment or act as private dealers in any transaction.

• APAA members maintain lawful practices, complying with state and federal laws in taxation, exercising due diligence in researching the provenance of recommended acquisitions, and refusing any requests by clients or vendors to subvert the law in any fashion.

• APAA members should not perform services that would be, or appear to be, adverse to the interests of his or her client unless those services are fully disclosed to the client and the client provides advance consent to the services in writing.

• APAA members do not accept financial compensation that creates a conflict of interest between the member and their client.

• APAA members do not solicit or accept compensation from service providers or vendors.

Advisors are not dealers, and as such, they do not own or represent inventory. While dealers advise clients and museum curators advise their patrons, they are different from professional art advisors who are hired to assist their clients (private or institutional) in building and caring for their collections, or helping them to sell their collections. An art advisor has a fiduciary duty to represent their client’s best interests at all times, not their own interest or the interests of a dealer, artist or auction house.

An advisor’s fees should be completely transparent. Fee arrangements remain at the discretion of the advisor, provided the advisor is always paid from one source, preferably their client. The advisor can be paid either salary, retainer, hourly fees, fees based on percentage of sales, or a combination of these payment methods. A good advisor will also disclose his or her fee arrangements to dealers and auction houses with whom they interact on behalf of their client. Therefore, they become a facilitator on behalf of the client and the dealer, auction house, or artist with whom they are working, rather than an obstruction.

Advisors should always maintain written agreements with their clients that outline the nature of the advisor’s work on the client’s behalf, and that contain a clear recitation of how the member will be compensated. Invoices to clients should clearly delineate the amount of compensation due to the advisor.

Furthermore, an advisor does not perform services that are averse to the interests of their client and avoids conflicts of interest, including direct and indirect financial interest in a transaction involving their client. If they find themselves in such a situation, they must disclose the conflict to the client.

An advisor is an expert in their field and does not provide advice in areas that are outside of their expertise. Instead, an advisor can bring in outside expertise to assist their clients. When completing any project for their client, an advisor’s research is careful, informed, and performed at the highest level. They must exercise due diligence in verifying the accuracy of information supplied to their clients, regarding works of art including: the date of a work, its provenance, exhibition history, and publication records. An advisor is careful to not provide services regarding stolen works of art.

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Art Advis­ing 2.0 : Ver­tigo & Accountability – Part I


The rise of the art advi­sor tracks the glob­al­iza­tion of art busi­ness. Art advi­sors act as a bridge to new classes of col­lec­tors, but the role is often not clearly defined. Gal­lerists, deal­ers, art fairs and col­lec­tors encounter a het­ero­ge­neous pro­fes­sion.

This event, held on April 1st, 2015 at Sotheby’s Institute of Art, explores cur­rent eth­i­cal and busi­ness ques­tions that art advis­ing cre­ates and the legal oblig­a­tions that their rela­tion­ships rely on. Art Advis­ing 2.0 — Ver­tigo & Account­abil­ity is a col­lab­o­ra­tion amongst Sotheby’s Insti­tute of Art, the Asso­ci­a­tion of Pro­fes­sional Art Advi­sors, and Stro­pheus Art Law.

Moderator: , Chair, Committee on Fine Arts, New York State Bar Association, Entertainment, Arts and Sports Law (EASL) Section, Attorney and Faculty at Sotheby’s Institute of Art

Panelists:
Sean Kelly, Sean Kelly Gallery
, Attorney at Stropheus Art Law
, Executive Director The Armory Show
, Megan Fox Kelly Art Advisory

A dedicated audio recording of Sean Kelly’s comments precedes his text. A video of Richard Lehun’s PowerPoint presentation can be found in the section on his presentation below. Due to a technical malfunction, we regret that a secondary audio source was used for the first eight minutes of the recording.


New York Art Law Attorney Judith B. Prowda

Judith B. Prowda

Welcome everyone to this evening’s program, Art Advising 2.0. Vertigo and Accountability. I’m Judith Prowda, and I welcome you here this evening to this panel discussion and dialogue. I thank our illustrious panel for participating, and special gratitude to Richard Lehun for planning this panel with me.

Art advising is not a recent phenomenon. The existence of the art advisor dates back at least to the 17th century. Diego Velázquez traveled to Italy in order to acquire works by Titian, Tintoretto and Veronese for King Philip VI of Spain. New and vastly rich industrialists in the 19th century, perhaps more competent in their business acumen than art expertise, also relied on intermediaries, sometimes artists, to cultivate their tastes. Alfred Barnes, for example, depended on William Glackens to educate him and to build his fabled collection. See Georgina Adam, Big Bucks: The Explosion of the Art Market in the 21st Century 93 (Lund Humphries 2015).

In the last century, prominent dealers such as Lord Duveen of Millbank, known in this day as “Napoleon of the art dealers,” guided an impressive roster of clients – Morgan, Frick, Mellon, Altman, Huntington, just to name a few – in forming their prestigious collections. A consummate salesman, Lord Duveen not only ferreted out the most exquisite masterpieces in all of Europe, but he also designed his clients’ homes, consulted with them on their dinner parties, and even kept his vault stocked with their favorite cigars. He was also known to rhapsodize about the paintings his clients acquired long after the deal. As Andrew Mellon remarked, “My pictures never looked so marvelous as when you are here!” See Michael Peppiatt, ‘Duveen’: The Art of the Deal, NYT, Sept. 19, 2004.

There has been a radical shift in the art world in recent years. According to the just released TEFAF report 2015, the global art market topped 51 billion Euros in 2014, an increase of 7% year on year, and its highest recorded level. The sheer magnitude of the global market has made it all but impossible to keep pace. With over 180 major art fairs with an international element, not to mention hundreds of smaller regional and local fairs, plus biennials, triennials and auctions crowding the art world calendar. And this does not include online art sales, which according to the online TEFAF Art Market Report is conservatively estimated to have reached 3.3 billion Euros, or around 6% of worldwide art and antique sales by value. See TEFAF Art Market Report 2015, prepared by Dr. Clare McAndrew. It is a full job simply to navigate the boom. Hence the rise of the art advisor.

Today, art advisors are valued as much for their access to galleries and high quality pieces, as for their advice on what works to acquire. See Mary Rozell, The Art Collector’s Handbook 30-31 (Lund Humphries 2014); Mia Fineman, Art Advisers, NYT Oct. 15, 2006. This is especially so in the primary market, which is largely based on trusted relationships. Top tier galleries with waiting lists for their star artists can be as highly selective as they choose. A trusted advisor can assure a dealer that their prized inventory will be placed in the right collection (the operative word being placed). And that their client will not flip the work either at auction or through another gallery.

At the same time, a well-connected advisor can act as gatekeeper and bridge for dealers to new classes of collectors, who may have money but not necessarily the knowledge of time to build a collection. See Daniel Grant, When Art Buyers Need Help; High-End Purchasers May Have More Money Than Knowledge, WSJ, Feb 2, 2015. For all these reasons, art advisors wield enormous power in the market, and the profession is growing.

There is no professional certification to become an advisor. So reputation is key, as everywhere in the art world. Art advisors practice in different ways. Some dealers are advisors and some banks have specialists who advise their collector clients. The profession is self-regulating.

The Association of Professional Art Advisors (APAA) is the main trade association. Membership is by invitation only. The APAA has its own Code of Ethics. Art advisors who are also dealers are not eligible for membership in the APAA due to potential conflicts of interest.

As in all business relationships in the art world, transparency is key. The best advisors, like the best dealers, desire to establish long-term relationships with their clients, not one-off deals to make a profit.

Who are the art advisors? What qualification does one need to become an art advisor? Who hires art advisors? People who wish to buy for personal enjoyment or to build a serious collection for their future legacy? How does one go about finding the right advisor? And how do advisors work? How are they compensated? Where do they look for art – galleries, art fairs, auctions, online, directly from artists’ studios?

Along with the rise of the art advisor is the emergence of complex legal and ethical issues. For example, and these are but a few: What are the pros and cons of using an art advisor? Shouldn’t people trust their own taste in acquiring art? Is art advising more common in the United States than in other parts of the world? How is art advising understood abroad? How are art advisors paid? Percentage of the purchase price? Retainer? Hourly fee? Isn’t there a potential conflict of interest if an advisor is paid a percentage of the purchase price when they’re negotiating the price on behalf of a collector?

Suppose an advisor has more than one client who wants to purchase a certain artist or a specific work. Who gets it? If an advisor is a dealer, wouldn’t there be a tendency to sell from their own inventory rather than putting their client’s interest first? What about double dipping? That occurs when an art advisor receives a fee both from the collector and from the gallery. Under what circumstances, if any, is this okay, legally and ethically? These are just some of the important questions we will explore this evening.

I’m grateful to my employer, Sotheby’s Institute of Art, for graciously hosting this event, as so many other events I’ve organized in this beautiful space, which is my second home.

This program is part of an initiative to create dialogue amongst lawyers, artists, emerging and established art professionals working in the primary and secondary market. In the past year and a half we have held programs on Gallery Ethics and The Rise of Art Fairs, both in collaboration with the New York State Bar Association Entertainment, Arts and Sports Law Section, of which I am Past Chair.

We have posted an audio podcast and transcript of these programs on the Stropheus Art Law website and will do the same for tonight’s program. Our next event will be on the topic of the online art market.

To explore the complexities on the role of art advisor, let’s begin with the perception of a gallerist, Sean Kelly. We will follow with attorney Richard Lehun, who will explore the nexus between legal and ethical questions. Noah Horowitz will examine how art advising has impacted the global art business and the art fairs in particular. Megan Fox-Kelly will end by exploring legal best practices for art advisors and the role of the Association of Professional Art Advisors.

Thank you very much. Please join me in welcoming Sean Kelly.


New York Gallerist, Sean Kelly

Sean Kelly

Good evening and thank you all for joining us this evening. I would like to start out by thanking Sotheby’s Institute, Judith and Richard, for their invitation, and express how happy I am to be on such an illustrious panel with Megan and Noah. I want to point out a couple of facts before I start. This evening is being bracketed by two Kelly’s so it’s going to be good night for them. And we are going to conduct the rest of the meeting downstairs in the bar afterwards.

I have a confession to make, I actually know nothing about this topic whatsoever, and the only reason I’m here is that I got the invitation, I noticed the date was April’s Fool’s Day, and I assumed that it was a joke, so I said “Yes.” Now, I found that it wasn’t, so I’ve done some research. So, I’m going to through some stuff out there just to get us going, and let the experts really attack the topic.

I wanted to pick up on a few things that Judith had mentioned, and there’s one particular theme that I want to illustrate for you more broadly. I don’t want to talk too much about the specifics of art advising or art consulting, I think Megan’s going to talk to that point more fully.

I wanted to start out by picking up from something that Judith said, acknowledging the very important role of artists historically in this field. One of the more maverick and interesting artists of the 20th century, Marcel Duchamp, actually was working as an art consultant and he was the person who brought Brâncuși to America and sold most of the Brâncuși’s in America that you see. Certainly the ones in Philadelphia – the bulk of his own work in that great museum [Philadelphia Museum of Art]. He was also instrumental in the Société Anonyme which ended up becoming the Museum of Modern Art. So, Duchamp’s role as an art advisor, and that of many other artists, has been very important in shaping our culture profoundly.

More recently, those of you who knew Herb and Dorothy Vogel and the incredible collection that they formed, or have the pleasure to be invited to their very small apartment to see their very large collection, were probably regaled with the fact that when they started out, the person who took them around the galleries and introduced them to the artists was Richard Tuttle. So, they too were being guided by an artist.

So, there’s a very long and important tradition that establishes the role of both professional and more informal art advising. The Vogel collection of course ended up going to the National Gallery of Art [in Washington, D.C.].

The historical role of dealers, curators, museums and advisors as taste makers is well-documented and one of the things that struck me when I was thinking about this topic was that when I started working as a gallerist – and I want to make a distinction between being a dealer and a gallerist, but that is not the topic of the evening’s conversation, but I think it’s an important distinction – when I first started working as a gallerist, some 25 years ago, I knew most of the significant players in this field, in my world, having come from being a museum person. And at that point the art world was rather like a country stream. It’s now something more akin to the Rio or the Nile, and it is a raging torrent. And there are now approximately 500, depending on whose advice you take from this, 500 to 800 galleries just in New York City alone. So it’s an enormous amount of professionals selling art, an enormous amount of art students leaving art schools every year, an enormous amount of everything to service that market.

Judith pointed out that the global art market last year is estimated at 51 billion Euros in 2014, there are about 180 art fairs around the world, there are biennials, there are triennials, there are auction houses.

One of the major points I want to make about this – and I will come back around to the art consulting and art advising – is that digital markets are in decline. Last year, the top 10 Hollywood movies grossed $2.5 billion. When you think about that in contrast to the amount of money passing through the art world, it is fairly insignificant. So, Hollywood is in decline, the music business is in decline, why is the art world in ascendency? It’s because we’re an analog business, they’re digital businesses, and we still control our product, to put it bluntly. And most other people can no longer do that in a global market and we are existing in a global market. So we are in a happy position of being in a growing market when many other arts producers and content providers are in a diminishing market. And I think that’s going to be a key issue in talking about these topics as we come back around.

We exist in an increasingly valuable and increasingly complex environment, which is populated by hundreds of thousands of art professionals that simply didn’t exist three decades ago. They weren’t there; they are now. The rise of the professional art advisor and consultant and dealer for that matter – we are all self-regulated – there are no regulations that exist for us outside our own professional organizations, whether it’s the APAA or the Art Dealers Association of America (ADAA) – which I sat on the Board of until recently.

There’s a high degree of moral responsibility because we’re self- regulated, which leads to, amongst our less scrupulous colleagues – and there are less scrupulous colleagues in all walks of life – to potential conflicts of interests. It means that we have to address issues of lack of clarity and transparency in our business. It means we are very reliant upon trust and knowledge and personal relationships, and we’re still in the rather archaic environment of doing business by a handshake and relying on principles and morals when many of our colleagues in all walks of life are heavily regulated.

One could conjecture in that environment – and I’m giving just a very brief view of it – that it would be good to have a road map or a GPS system for an increasingly complex world. I think that one would be encouraged to think about good art advisors, and there are many, as being your GPS system or your road map – or a bridge between the work, your artist, the dealer and your wall.

I’d like to stress that like anything else, there are good and bad art advisors, just as there are good and bad members of every community. Those who work in their client’s best interest are really invaluable, not only to their clients, but to us as gallerists. They are an invaluable link for us in building professionalism in an increasingly plural, complicated and increasingly vast market, frankly.

Part of the reason I was interested in participating on this panel this evening, was to be able to listen to my colleagues talk about and explore the specific role of art advisors, and their responsibilities in light of that world, and in light of the world that we need to navigate in. And of course to really talk with the audience, rather than at the audience, and answer questions from the audience – and at least be able to communicate with the audience – about all of our experiences in dealing with situations that art advisors have been involved in, certainly in the last 25 years that I’ve been a gallerist.

Those are the issues I’d like to raise, and I’d like us to think about as we listen to the rest of the panel and take questions and attempt to answer them for you. Thank you.


 

New York Art Law Attorney Richard LehunRichard M. Lehun

My presentation today is going to try to highlight some of the often-misunderstood issues regarding art advising and the status of being an agent. I’m also going to introduce the concept of fiduciary obligations via agency for art advisors.

Many of you may not be that familiar with the concept of fiduciary obligations, but it is a fact that all who are engaged in art advising are actually de facto subject to them, to the extent that you are acting as an agent of a client. This will give us an opportunity to run through some of the considerations that are actually structuring and framing your practice, even if they may be legal, and somewhat removed from everyday understanding.

Agency relationships are at the heart of the art world. Notable examples of agency relationships are in the representation of artists by galleries, the representation of consignors by the auction houses, and the third most prevalent form of agency, which is our topic tonight, the relationship between the art advisor and the buyer.

The single most important thing for art advisors, collectors and gallerists to understand is when advisors are acting as an agent they are legally obligated to be their client’s fiduciaries. Whether it is in a contract or not, whether in contemplation of the parties or not, or no one has raised the issue, the law imposes those obligations. We’ll get into them in a moment to understand more of what that means, but that’s the first take home message. Whether one is aware of them or not, they are simply de facto operative before a court and in law.

Fiduciary obligations order unique and valuable social relationships and are found in many settings where trust is critical. They’re found in doctor/patient relationships, lawyer/client relationships, amongst partners and in corporate governance. Fiduciary duties are imposed by society to balance power differentials. Society has legal structures that anticipate a situation where an advisor has superior knowledge, superior access to information, and may be able to make decisions in their own judgment for a client. A client doesn’t have access to the same type of empowerment, and the law has regimes to increase the security of the dependent party, of the vulnerable party.

Relationships of trust in the art community are inseparable from fiduciary obligations. Now, we have to pause for a moment and think very clearly about what is special about this fact. When fiduciary obligations are active – and they’re active by law – they’re not active by choosing them or not choosing them; they’re simply there. They change the nature of the obligations that people owe to each other in very unexpected and dramatic ways. Instead of being equal parties to a contract, fiduciary obligations create two distinct roles: the fiduciary, that is, the person who has power over another (the art advisor) and the entrustor or principal (the buyer).

It is central to understand that even if you come together under a contract – that is, an agreement that is to benefit each party – when fiduciary duties are present, they can trump any agreement.

I’ve stressed it, but I’ll stress it again, because it’s one of the core factors that gives fiduciary obligations the scope and breadth of their impact – fiduciary obligations are made by judges and courts. By default, fiduciary obligations trump contracts and other non-legal binding agreements. Fiduciary agreements can also be found between an art advisor and client even if both have explicitly disclaimed them. The court may step into a transaction, into a contractual situation, and say the contract between an art advisor and a client is unconscionable, it simply doesn’t have validity because it injures the basic right of a client to certain fundamental and legal norms. It’s important to understand that the courts determine when these fiduciary duties exist and determine their breadth and depth.

As a fiduciary, an art advisor must be loyal – in a moment we’ll get into exactly what that means, but we have to concentrate on the top level concepts first. An art advisor must be free of conflict of interest. Secondly, not only does a law impose this duty of loyalty, it also understands that this duty of loyalty has to be tempered by circumstances, which means that a court can step in and say that an art advisor has not exercised due care. This means that an art advisor has to be prudent in the eyes of the court.

Being prudent means being vigilant – independently vigilant – about conflicts of interest and transparency. Waiting for a client to pose questions is no defense against potential breach of these fiduciary obligations. This is independent of whether a client understands these obligations, is aware of them, demands them, or not. The onus is on the art advisor as the fiduciary to understand these concepts, and legally these rights belong to them even if the client is unaware of them.

Now that we’ve covered briefly the advisor as an agent and fiduciary, let us turn to the devil in the detail. What impact does this have on art advisors in their day-to-day practice?

When an art advisor is in an agency relationship with a client they must represent only that client’s interests. An art advisor cannot pursue any other interest whatsoever by law, and is under a complete obligation to maintain transparency. The client is not obligated to ask for this, or to provide for this, or even to know this. The law imposes this as a default, no matter what an art advisor thinks, has done, or practiced to date. And there is no easy legal argument that can be brought if there is a difficult situation with a client to defend the fact of not having maintained that loyalty.

It’s not a contractual situation, where the advisor can say: “well the client didn’t pay me, therefore I breached confidentiality or I breached conflict of interest provisions.” That’s irrelevant before the law. Because the fiduciary obligations trump whatever contractual issues are at hand, and ignorance is no defense, the advisor is obligated to be professional. The operative assumption by the law is that the client is vulnerable, and it is all but impossible to reverse or change that legal frame.

A key aspect of the fiduciary obligation of an art advisor is the exclusion of third parties and third party interests. The law imposes a fiduciary duty on the art advisor not to do or agree to do anything that would benefit anyone else other than their client. An art advisor cannot generate or intend to generate any profit, any benefit, for anyone but that client without disclosure or agreement on the part of the client.

Excluded third parties that can receive no legal benefit from the actions of an art advisor without full disclosure and agreement on the part of the client include: artists, gallerists, other collectors other clients, other art advisors, museums, framers, art handlers, and other service providers, etc.

The client – again, to stress this important dimension – is not obligated to ask for this, to ask for the exclusion of this. All art advisors are obligated to understand this and practice this by law.

A further deep responsibility of an art advisor as an agent and a fiduciary, is to have no undisclosed profits. In fact, the law mandates that art advisors are obligated to turn over any undisclosed profits. Every undisclosed profit an art advisor makes is automatically owed by law to the client.

Again, the client is not obligated to ask for this, not obligated to enforce this, nor make this an explicit provision of their relationship with the art advisor. If the matter ends up in court, an art advisor’s default fiduciary obligation will force full disclosure and the disgorging of all undisclosed profits.

The exposure to this liability lasts years after the transaction. Therefore, years after a transaction, if for whatever reason a client is not satisfied or has the intuition that there was some conflict of interest or some breach of trust in a transaction, that client can go to a court and force full disclosure of all people connected to a transaction and the disgorging of any undisclosed profits. Even if they were unrelated, and even if the client benefitted.

This is one of the curious things about fiduciary obligations. Even if an art advisor argues, “Well, if I give that hidden advantage to somebody, it will close the deal, my client will be happy, they’ll get the work that they want, but I’m not going to disclose this, because it would reveal to much information, or potentially compromise someone else’s interest.” That is no defense because of the legally imposed obligation of the singular loyalty to the client.

Even if a client agrees to allow an art advisor to generate a benefit for someone other than the client. For example, you (the art advisor) come clean or you actually included a high level of detail in your discussions with your client about how many other people are involved in the deal, what possible benefit that could accrue to them – even there, you don’t necessarily have a defense, because the law imposes an additional burden. You must have acted fairly from the perspective of an independent legal review, regarding the disclosure to the client of the existence of any potential actors who are gaining a benefit, and all other relevant information so the client can make an informed decision.

Even if everything looks great, and everyone is in agreement in the moment, a court can reverse everything and take away any benefit that has accrued to the art advisor and return it to the client, even years after the fact, in cases where the court does not agree with advisor’s and the client’s understanding of fairness. Counter-intuitively, the court may not necessarily take away any benefit received by the client and return it to the art advisor.

Fiduciary obligations take you off the rails of contract. All art advisors are fiduciaries when they’re agents of their clients. This is independent of whether you have a contract or not. So, an art advisor who breaches fiduciary obligations is liable for any unfairness or any lack of transparency, well after the transaction is over.

In closing, I want to note that fiduciary obligations on art advisors are to balance what are called “agency costs.” Agency costs arise when the art advisor or agent takes discretionary but imperfectly observable actions that impact the client.

The fact of operating within the confines of typical art world discretion subjects the art advisor to moral hazards and conflicts of interest, and fiduciary duties are precisely there to address wrongdoing, if it becomes manifest, or if there’s an intuition on the part of a client that it could be present.

In sum, despite not being well-known, fiduciary obligations and the agency relationship are at the core of art advising. In fact, the art advising profession is defined by them, whether art advisors are familiar with this fact or not. The vast increase in the role of art advising means that many people interacting with the profession are doing so without understanding how exposed they are. We hope, with this panel, that we can increase awareness and foster dialogue around this important issue.

I thank you for your attention, and I look forward to your questions later on.

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Art Advising Panel Discussion at Sotheby’s Institute on April 1st


Art Advising 2.0 :
Vertigo & Accountability

Wed., April 1st
Panel Discussion and Dialogue: 6.00-7.30 PM
Wine and Cheese Reception: 7.30-8.30 PM

Sotheby’s Institute of Art, 570 Lexington Ave, New York, NY

Register here or use the order form below.

The rise of the art advisor tracks the globalization of art business. Art advisors act as a bridge to new classes of collectors, but the role is often not clearly defined. Gallerists, dealers, art fairs and collectors encounter a heterogeneous profession. This event explores current ethical and business questions that art advising creates and the legal obligations that their relationships rely on.

Panelists

Dr. Noah Horowitz, Managing Director of The Armory Show and author of Art of the Deal: Contemporary Art in a Global Financial Market (2014). His writings and interviews on contemporary art and economics have appeared in The New York Times, The Observer, artinfo.com, Das Handelsblatt and ArtTactic. He holds a PhD from the Courtauld Institute of Art.

Megan Fox Kelly, board member of the Association of Professional Art Advisors. She specializes in, and is a frequent speaker on, advising private collectors, museums, foundations, estates and trusts on buying and selling post-war and contemporary art.  She is a U.S.P.A.P. certified appraiser, has a Certificate of Appraisal Studies from New York University, and holds an MA in the History of Art from Brown University.

Sean Kelly was trained as an artist, became a Curator, Museum Director and Director of the Bath International Festival in Britain. He moved to New York in 1989 and opened his eponymous gallery in 1995. A successful and edgy visionary with a political sensibility, Sean Kelly represents a paradigmatic group of contemporary artists including Marina Abramović, Antony Gormley, Rebecca Horn, Joseph Kosuth, James Casebere, and Kehinde Wiley. He is a member of the Art Dealers Association of America and is on the advisory boards of a number of educational and arts organizations worldwide.

Dr. Richard M. Lehun, Esq. is a founding member of the New York Stropheus Art Law collective, responsible for artist-gallery, consignor-auction house, agency, and other fiduciary relationships. He completed a doctorate in fiduciary law from McGill University while cross appointed as a Visiting Researcher at Harvard Law School. Richard Lehun has a Magister in Aesthetics from the Goethe Universität, Frankfurt am Main, and a fine arts diploma from the German Film and Television Academy Berlin (dffb).

Moderation

Judith B. Prowda, Esq. is an attorney, mediator and arbitrator focused on art law, copyright, entertainment and commercial law. She is Senior Lecturer at Sotheby’s Institute of Art and author of Visual Arts and the Law: A Handbook for Professionals (2013). She is Past Chair of the Entertainment, Arts and Sports Law Section of the New York State Bar Association, and is Chair of the Section’s Committee on Fine Arts and Co-Founder and Co-Chair of the Committee on Alternative Dispute Resolution. In addition, she is a member of the Art Law Committee of the New York City Bar Association.

Art Advising 2.0 – Vertigo & Accountability is a collaboration amongst Sotheby’s Institute of Art, the Association of Professional Art Advisors, and Stropheus Art Law.

 

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15 Minutes on Mediation of Arts related Disputes


 

I’m . The topic of my presentation is Mediating Arts Related Disputes. Mediation is a creative and powerful dispute resolution process that has become increasingly common in the arts context. This is not surprising, in light of the unique characteristics of mediation. It is the only resolution process whereby the parties remain in control, not only of the outcome but the way in which the outcome is obtained.

Mediation Distinguished

Let’s begin by distinguishing mediation from other forms of dispute resolution.

What is Mediation and How Does It Compare with Arbitration?

Mediation is a private, confidential, informal and non-binding alternative dispute resolution process whereby a neutral third-party assists the parties in resolving their dispute.

Arbitration is similar to mediation in that it is also a private, confidential alternative dispute resolution process. In addition to being more formal than mediation, there is another key difference. In arbitration, a third party neutral (either a sole arbitrator or panel of 3 arbitrators) decides the outcome of the dispute. Arbitral awards are final, that is, non-appealable, and rarely subject to judicial review, unless there has been fraud or other defect in the arbitral process. Compared to mediation, arbitration is often lengthier, more formal, more adversarial, more demanding of the neutral party in terms of time and labor, and therefore more expensive.

How is Mediation Different from Litigation?

Litigation

Litigation is generally something people try to avoid. Not only is litigation expensive, time consuming and emotionally draining, it can destroy long-standing relationships between disputing parties, if not the business itself, as it plays out in public. The court’s decision is public, as well as the pleadings and testimony. As a result, litigation can have a devastating effect on the reputation of the parties. Moreover, the outcome of litigation is unpredictable, since the decision is in the hands of a judge or jury. Courts adjudicate largely in black and white, and are limited in their ability to find creative remedies. One party will generally win and one will lose.

Mediation

How does mediation compare with litigation?The distinctive characteristics of mediation are also its advantages. I will go through several advantages of mediation and discuss how mediation can help parties resolve their dispute.

Control over the Mediation Process

As I mentioned, a unique feature of mediation is that it permits the parties to remain in control. To begin, the parties can select their mediator based on expertise and style and decide what approach makes sense. The parties also determine whether the mediation will be conducted in joint session with all the parties and representatives present, or include private confidential meetings – caucuses – with each side separately.

Mediation is voluntary. Even though participation in mediation may sometimes be court-mandated, the parties are not obliged to agree to anything, and there are no penalties for failing to resolve their dispute. Just as parties can initiate mediation at any stage of the litigation, they can also suspend it at any time and proceed to trial.

At the least, the mediation will have provided an opportunity to narrow the issues and identify the interests at stake.

A mediator can be very effective in simplifying and organizing the case so that it can proceed more efficiently even if it is not resolved during the mediation. As a neutral third party with no stake in the outcome, the mediator can be an effective “agent of reality” by helping the parties to weigh the uncertainty and risks of not settling.

Creative and Durable Solutions

Mediation can foster creative solutions because the parties can take into account real business interests, including non-monetary considerations, and identify impasses to reaching a settlement. Rather than focusing on past conduct, the parties may be motivated to explore new options for mutual gain and search for ways to settle a dispute in which their real interests are not mutually exclusive or truly adverse. By shifting the focus of the discussion away from the “position” or “side” each party has adopted, and instead looking to their needs and objectives, the parties may be able to find “win-win” resolutions.

Moreover, a settlement achieved through mediation may lessen the likelihood of another dispute arising between the parties, while creating a process for them to work through future problems should they arise.

Cost and Time Effectiveness

Mediation is far less expensive than litigation. Often a dispute can be resolved in a single session. By resolving the dispute early in the litigation, or even before a lawsuit has been filed, the parties can save exorbitant sums in court costs, attorneys’ fees, discovery, and other related expenses.

 

Less Stressful and Emotionally Burdensome

Mediation is far less stressful and emotionally burdensome than a trial, which involves publicly reliving an upsetting experience or exposing a negative business decision that gave rise to the dispute in the first place. Resolution of the dispute through mediation, especially at an early stage of the litigation, allows parties to return to their business and personal lives and avoid the disruption of a protracted litigation.

 

Confidentiality

Turning now to the confidential nature of mediation. Whereas litigation is public, mediation is confidential. Parties to a mediation may therefore be open and candid about their concerns and positions in a closed, safe environment. Any statements, proposals, or offers made by the parties are not admissible as evidence in any subsequent arbitral, judicial or other proceeding. There is no public record of what was discussed during mediation sessions. All records, reports or documents received by the mediator while serving in that capacity, as well as the mediator’s notes, are confidential. Confidentiality rules also apply to any other persons attending the mediation.

Because of the confidentiality rules in mediation, some of the adverse side effects of litigation are diminished, such as damage to the parties’ reputation due to media coverage, as well as the time and stress involved in witness preparation, testifying in open court, depositions, and other disruptions. These considerations are often critical in art-related matters. The mediation process provides ample protection from having to reveal confidential information to the other side simply by advising the mediator during the separate caucus. Confidential information may include a party’s honest assessment of the strengths and weaknesses of its own case as well as the party’s final settlement position. The mediator may not repeat a confidential statement to the other side without authorization by the party affected.

Privacy and Opportunity to Listen and Be Heard in a Closed Setting

Since mediation sessions are private, no one other than the parties and their representatives is permitted to attend. The parties are therefore free to express their anger and hurt feelings directly to one another or simply to vent.  They may benefit from hearing the other side’s version of the story, perhaps for the first time face to face, and may be able to identify areas of agreement and disagreement quickly.

The value in having one party listen and respond to the other party’s concerns, or to receive an expression of regret, remorse, or appreciation cannot be overstated. These interests are no less real because they are not strictly monetary or economic. Parties often feel a sense of catharsis after expressing themselves in the presence of a neutral third party—similar to having their “day in court”—and are more willing to resolve their differences, clear up misunderstandings, and search for common ground.

 

Preservation of Relationships

Mediation is especially suitable in situations where the disputing parties have had a long-term personal relationship, or an ongoing business relationship. Close collaborations are prevalent in the art world – for example, between an artist and dealer. If the parties are able to resolve their dispute through mediation, there is real potential that they can preserve their relationship rather than destroy it through litigation. Potential settlement terms may include a joint press release, a non-disparagement agreement, a confidentiality agreement, or a contract for future business.

 

Pre-Mediation Contract

If the parties decide they would like to mediate a dispute, they should enter into pre-mediation contract.  This simple contract should include the following provisions.

  • The mediation should be confidential and non-binding.
  • The parties should agree on who will conduct the mediation and how the mediator will be paid. The mediator’s fee is typically split between the parties.
  • The parties should agree on the length of the mediation. Most mediations are scheduled for either a half-day or a full day.
  • The parties should agree to mediate in good faith until either party reasonably determines that it is fruitless to continue. At that point, they can decide whether to suspend mediation and resume at a later date. Alternatively, they may decide to proceed in court or before an arbitrator or panel of arbitrators.

Mediation may not be appropriate in some cases

Despite the considerable advantages of mediation, it may not be appropriate in some cases. For example, in situations where the parties may wish to establish or follow case precedent, or enforce a judgment against a third party, they will need to go to court. Due to the private and confidential nature of mediation, there would be no public vindication (unless parties agree to publicize). While some mediators may be more evaluative than others, the role of a mediator is not to offer an opinion but rather to facilitate the negotiation. Mediation would not be appropriate in cases involving deliberate bad faith, counterfeiting or piracy.

How does mediation work in practice?

Scenario of an Artist-Gallery Dispute

Let’s consider a hypothetical scenario of an artist-gallery dispute.

Hypothetical Contract Terms

Assume that Artist and Gallery A sign a written consignment agreement with the following terms.

  • Gallery A will have exclusive agency, that is, serve as Artist’s only dealer, for a period of 2 years. They will split the sales proceeds 50/50.
  • Once Gallery A has been paid for the sale of a work, it will remit 50% of the sales proceeds to Artist on a quarterly basis.
  • Gallery A agrees to exhibit Artist in 2 group shows the first year and 2 group shows and 1 solo show the second year.
  • Artist agrees to produce 15 new works of art the first year and 20 the second year.

First Year

During the first year, things are going smoothly. Artist’s works are selling well. The press is favorable. Collectors are interested. Gallery A is prompt about sending 50% of the sales proceeds to Artist quarterly, as required under their agreement.

Second Year

During the second year, however, Gallery A periodically gives advances to Artist totaling $50,000 and uses Artist’s 50% share of the proceeds generated by the sales of his work to repay itself for the advances. Artist abruptly terminates his representation by Gallery A, with $30,000 of the advance payments still outstanding, and decides to work with Gallery B instead. Artist seeks recovery of several paintings delivered to Gallery A on consignment, but Gallery A refuses to return them, asserting a security interest in the works against Artist’s debts. Moreover, 1 of the paintings is missing. Artist sues Gallery A for recovery of the paintings and the fair market value of the missing painting.

Gallery A counterclaims for breach of contract, claiming that Artist violated the terms of their exclusive agreement by entering into a consignment with Gallery B.

 

Comparing Approaches

Litigation

If the case were litigated, the court would look at New York’s Arts and Cultural Affairs Law as well as common law claims, such as breach of fiduciary duty, breach of contract, negligence and fraud. Significant time would be devoted to analyzing the facts and applicable causes of action and commencing a public adversarial proceeding. There would be discovery, itself a very time consuming process, before the court could schedule a hearing or trial. The more valuable the artwork, the more likely the attorneys would require depositions on both sides, as well as testimony from experts, and all the while legal fees would continue to spiral.

As the case proceeded, the public and adversarial nature of the dispute would distract and consume the time of both Artist and Gallery A and tarnish the reputation of the individuals and business involved. Meanwhile, as the controversy wended its way through the legal system (which could take months or even years), Gallery A’s clients might decide to take their affairs elsewhere, bills could go unpaid and employee morale would decline. Artist would also be upset and preoccupied with the uncertainty of litigation. Possibly his relationship with his new gallery would suffer.

Based on these facts, Gallery A would likely be required to return the paintings pursuant to New York’s Arts and Cultural Affairs law and then file a separate lawsuit against Artist to recover the monies owed. There is the missing painting claim to decide as well. As is often the case, neither side would be satisfied with the outcome. An appeal would always be a possibility, causing another round of strain and uncertainty.

Meditation

If this dispute were mediated prior to filing a lawsuit, there would be no public record. The parties would stay focused on their real interests and bring a resolution at a fraction of the cost. The confidential nature of the mediation process would shield the parties from public and media exposure, reputation damage, and disruption of business that necessarily result from the demands and stress of litigation. Gallery A could avoid the embarrassment of losing Artist to another gallery and for losing a painting consigned to it. Artist could avoid the public’s awareness of his finances and breach of an exclusive agreement with Gallery A.

A mediator who is a good facilitator would encourage the parties to consider creative solutions and to generate settlement options. For example, Gallery A might return a painting of equivalent value that it had purchased from Artist. Perhaps Gallery A could share commissions with Gallery B for works purchased by Gallery A’s clients.

Conclusion

Properly conducted, mediation allows parties the opportunity to resolve their dispute quietly and efficiently in terms of time and expense, while taking into account their individual interests and circumstances. Creative solutions, such as the hypothetical agreement between Artist and Gallery A, would simply not be possible in court. Mediation is particularly relevant in the art world context where relationships are complex and discretion is highly prized.

Thank you for your attention.

Further Reading

Judith B. Prowda, Visual Arts and the Law: A Handbook for Professionals (Lund Humphries, London 2013)

Judith B. Prowda, The Art of Resolving Art Disputes: A Case for Mediation, Chapter in All About Appraising: The Definitive Appraisal Handbook (Appraisers Association of America, 2d Ed. 2013)

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