Financial Times, August 26, 2016
How an artist's legacy became big business
From Mark Rothko to Henry Moore, the stakes are high in an inflated art market
by Harriet Fitch Little
Before he killed himself in his Manhattan studio in February 1970, the artist Mark Rothko wrote a will that was firm in its wishes if not its wording: his estate should not, it requested, be atomised and disappear into the vaults of the very wealthy. To this end, Rothko had engaged three friends as executors, and set up a foundation. Yet following the artist’s death, and that of his wife Mary Alice a few months later, the executors did indeed break up Rothko’s estate, selling a large part of it to the Marlborough Gallery at extremely deflated prices, and giving Marlborough the right to sell other canvases on consignment for higher than normal commission.
The following year, Rothko’s 20-year-old daughter Kate sued on behalf of herself and her younger brother. A protracted court case revealed the cosy ties between executors and gallery. The case was won but the damage was already done. Many of Rothko’s paintings, including his daughter’s favourite, “Homage to Matisse”, had already been sold on and weren’t coming back.
A similar fate befell the legacies of other famous artists. Pablo Picasso died intestate in 1973 having been possessed by the superstition that making a will would hasten his demise. He left 45,000 works and seven heirs — a settlement that took six years and $30m to negotiate. Salvador Dalí, who died in 1989, had set up a foundation but left his affairs in such disarray (and therefore so open to forgery) that, 27 years later, the market for certain works of his still hasn’t fully recovered.
The story of Rothko’s “orphans”, as the critic Robert Hughes laconically captioned the artist’s heirs, fascinated the public of the time: it was “a betrayal the art world can’t forget” according to the New York Times; a “spectacular scandal” in People magazine. It was also, for some observers, the moment that alerted artists and dealers to the fact that legacy management wasn’t an abstract concept: securing an artistic afterlife was a business concern, and that business could go badly wrong.
Forty years after the judge in the Rothko case decided that each of the canvases sold to Marlborough was worth at least $90,000, Christie’s sold Rothko’s “No. 10” for $82m ($86.9m with fees) in a week when the auction house’s sales totalled more than $1bn.
As Andy Warhol once put it: “death means a lot of money, honey”. In today’s inflated art market, the significance of securing an artist’s estate seems all too obvious. But sky-high prices have increased tensions, too. Ugly and expensive infighting between inheritors and trustees has touched many estates since Picasso’s. More recently, a rash of authentication lawsuits has risked crippling some of the world’s wealthiest foundations: over the past five years the authentication committees attached to several major artist’s estates have stopped offering opinions on works brought to them because they are worried they will be taken to court over unfavourable rulings. Warhol’s was the first to fold, announcing in 2011 that, “We’d rather see our money go to artists than lawyers.” Keith Haring, Roy Lichtenstein and Jackson Pollock were among those who followed.
Loretta Würtenberger is director of the Institute for Artists’ Estates, an organisation founded this year that is the first to dedicate itself to questions of legacy planning and management in the art world. A copyright lawyer who has managed the estates of the Dadaist Hans Arp and his wife Sophie Taeuber-Arp since 2009, Würtenberger traces the importance of securing an artist’s estate back to the growth of art as an asset class, rather than to specific high-profile cases such as Rothko’s. “The artists of the 1940s and 50s, those were the first artists from the superstar point of view,” she says. “Having died away, you now have these huge rich estates. We’ve never seen that before.”
The Berlin-based institute has joined a field that has expanded rapidly over the past five years — a rather delayed response, perhaps, to the boom in the contemporary market that got under way in the 1990s when contemporary art started to regularly outsell Old Masters and Modern artists at auction. It’s an industry that is, almost by definition, playing catch-up: avoiding the arguments, lawsuits and questions over authenticity that have plagued art’s early “superstars” is something that requires advanced planning, and in many cases it’s simply too late.
For example, says Würtenberger, the loss of authentication committees is a trend that has worrying consequences. “It’s really a pity because an estate, especially if they do a catalogue raisonné [a publication that comprehensively lists all the known artworks by a particular artist] is the natural source of know-how for giving authentication.”
It is up to the trustees of an estate to ensure that this activity is sustained after the artist is gone. Würtenberger puts it like this: “You have this oeuvre, this bucket of gold which you try to grasp in its totality,” she says, lifting her hands, fingers splayed, to suggest something constantly at risk of disappearing.
Art’s value — both cultural and monetary — is established by it being seen, sold and talked about. With this in mind, galleries are increasingly taking on the representation of artists’ estates alongside their representation of living artists. At the international gallery Hauser & Wirth, which has approached the field with particular vigour, almost a third of represented artists are now estates or foundations — 21 in total. Seventeen of these were taken on in the past decade.
As Würtenberger explains, “The higher end of the contemporary art market has become so competitive, also for the art dealers of the big artists, that they are looking again into the estates to see what are the undiscovered treasures that they can bring to the surface.”
Adam Sheffer, president of the Art Dealers Association of America, says that talking to artists about estate planning and archiving is now a “standard part of the dialogue” at many galleries. “When you begin a career and you start to have work enter the market, you have to think about everything as specific as archiving, as keeping extremely careful records, because down the road when it comes to the value of your foundation and issues around authenticity, the earlier you start the better,” he says.
The sculptor Henry Moore was the first British artist to reckon with his legacy on an institutional scale. He set up the Henry Moore Foundation in 1977, creating a structure so rigid that he was obliged to become its employee and draw an annual salary for his work. According to his only child, Mary Moore, he found parts of the process a “real bore”: “In a way what you’re doing is turning yourself into an institution while you’re still alive,” she says.
Moore’s diligence was prompted in part by financial prudence — by the end of his career he was the world’s most successful artist at auction, and creating a foundation with charitable status could reduce his sizeable income tax bill. He was also keen to avoid the questions of authenticity that had clouded the legacies of artists he admired: “He thought about other sculptors like Rodin and Maillol who didn’t limit the editions of their sculptures, or various estates where the widows went on to create posthumous casts. He was thinking about these things all the time,” Mary recalls.
Since Moore’s death in 1986, there have been challenges — among them, a disagreement in the 1990s between the foundation and Mary Moore that went to court. Mary claimed ownership of the artist’s copies of her father’s statues and objected to extensions at the family home intended to make it more visitor-friendly. She lost the case.
In the years since, Mary has forged a good relationship with the foundation. She suggests that there will perhaps always be some points of contention when a legacy becomes as formalised as her father’s has. “In a way, you’re creating another heir, and that heir has rights and things that will represent it,” she says of the foundation. “I try not to be controversial, as it were, but simply helpful, to be able to inform or assist the foundation in any way I can to keep the authenticity and to keep the sense of the man.”
Twenty years after Moore’s death, the pay-off is clear. While many artists of his generation are still lacking a completed catalogue raisonné, Moore’s has been in place since before he died, regularly updated in the years since. The foundation has kept his workspace at the family’s Hertfordshire home, Hoglands, accessible and is the largest artist-endowed grant-giving organisation outside of the US. Its assets stand at about £85m.
Mary Moore, who grew up “thinking, eating, breathing, seeing sculpture every day” at Hoglands, believes that the maintenance of the physical estate has been critical to ensuring her father’s legacy. “The visual environment is actually telling you as much about the artist as the written word,” she says.
For artists of Moore’s stature, trustees can at least rest easy in the knowledge that they are building on solid foundations; the artist’s position is established, their prices presumably high. “It’s a given that you don’t have to really defend the artist’s reputation,” says David Nash, a gallery owner who has worked with estates including those of Willem de Kooning and Roy Lichtenstein.
But for those who fall outside this top strata, there are no such guarantees. “You can make a really bad decision for a dead artist,” says Mark Waugh, head of research and innovation at the UK-based Design and Artists Copyright Society, which has recently launched the legacy planning initiative Art360. “For the market to recover from a bad decision that someone has made, it’s like a forest fire. Everyone’s going in the opposite direction.”
Establishing which artists are missing from our collective memory because of problems with their estates is a tricky counterfactual. “It’s hard to think of somebody who doesn’t exist because they botched it, because we don’t even remember them,” says Barry Rosen, an adviser to estates including that of Eva Hesse. He does have one example: Scott Burton, a talented American sculptor and installation artist who died suddenly in 1989. His work had “everything going for it”, says Rosen. But Burton made the unusual decision of naming MoMA the residual beneficiary of his estate, leaving it unclear who was responsible for representing and promoting the estate (museums do not usually represent individual artists). David Getsy, a professor at the Art Institute of Chicago who is writing a monograph on Burton, says that as an early advocate of art as social practice, Burton’s legacy should be central to many contemporary trends. “It is very odd that Burton doesn’t have a place in that history and I see that lacuna as part of the impact of the confusion around the estate,” he says. Last year, the Art Newspaper wrote that Burton’s market had “tumbled” due to the inactivity and uncertainty surrounding the estate, reporting that the price for equivalent works sold at auction fell by two-thirds between 2007 and 2012.
More invigorating are the stories of artists rescued from obscurity by the exertions of their inheritors. Philippe Vandenberg was a well-respected Belgian painter, but an “artist’s artist” who had closed off his studio and distanced himself almost entirely from the art scene in the decades before his death in 2009. In the seven years since, however, his daughter Hélène Vandenberghe, an art historian, and her two brothers have crafted a reputation and market for their father that outstrips his reception during much of his lifetime. Vandenberg’s estate is now one of those represented by Hauser & Wirth, and he has had solo shows in Europe, America and Asia.
Vandenberghe is blunt about what would have happened without the inheritors’ intervention: “There would have been a big chance that my father would have disappeared.” The siblings’ strategy was to fashion their father’s studio, posthumously, into an extremely collaborative space. Contemporary artists have been invited to make work there in response to the surrounding art, sometimes resulting in joint exhibitions. As Vandenberghe explains, “If you as an estate stand between the work and the world you kill the work.”
For Patrick Moore, general manager of the Andy Warhol Museum in Pittsburgh, it wasn’t Rothko, Picasso or Dalí that prompted the realisation that estates mattered. It was New York in the 1980s, when the Aids epidemic started claiming the lives of his friends. Many were artists, and many were estranged from their families. When they died their work was thrown into skips. “Over and over again, their entire lives’ work were being discarded,” he says.
In 1991 Moore became project director of the Estate Project for Artists with AIDS, which provided advice and helped archive the work of dozens of significant artists and performers. “Art has a function in society of documenting its time,” Moore says. “While it seems in retrospect like that’s such a no-brainer that [these films] would be cherished as critical documents of the time, I know it could easily have gone the other way.” Moore’s career has taken him from working with some of the most marginalised estates to that of Andy Warhol, one of the richest foundations of all time, but he says the fundamentals are the same. “Every artist puts pen to paper or brush to canvas because they want it to survive and they want it to say something,” he says. As Mary Moore puts it, “When they start talking about Giotto and Cimabue, usually in their sixties or seventies, you know they’re thinking about posterity and they’re thinking about the whole arc of art history.”
For artists thinking about these questions now, the challenges have multiplied. No longer is it prudent to leave a body of work to one’s next of kin and hope for the best. But the resources have multiplied, too, and will continue to do so as the art industry strives to keep pace with the market surge of the past few decades. “We’re going to see much more professional estates in the next decade than we did in the last decade,” Würtenberger predicts. And, she insists, the basic principle that “quality will out” hasn’t been lost in the noise: “You can manage around an estate as much as you want, but if the art isn’t good enough, you can’t do anything about it.”
The ‘Keeping the legacy alive’ conference takes place in Berlin on September 14-15; www.artists-estates.com