A decision handed down this week by the Supreme Court of the State of New York lifts the curtain on funding agreements between dealers and artists and could have far-reaching implications for the rights of artists under New York law in the coming.
The decision, written by Judge Louis L. Nock in favor of wanted artist Diana Al-Hadid in her legal battle against gallerist Marianne Boesky, which the dealer filed in early 2021, concerned the ownership of a bronze sculpture that ‘Al-Hadid created as part of a 2011 deal in which Boesky’s company agreed to handle the manufacturing costs of three works plus two artist’s proofs.
By the time the Al-Hadid Gallery and Boesky went their separate ways in 2019, which Boesky said was due to the gallery “no longer being able to work with” the artist, one outstanding sculpture remained unsold.
According to Boesky’s original complaint, manufacturing costs were $25,000 for each sculpture, and an email from the gallery to the manufacturer listed selling prices at around $75,000 each. Under the original deal, once the works are sold, the profits would be split three ways between the maker, the artist and the gallery. Boesky, who later purchased the manufacturer’s interest in the sculpture, claimed ownership of two-thirds of the work.
According to the complaint, at the time of the split, Al-Hadid owed a “six-figure” amount to Boesky for “manufacturing costs, defendant’s studio rent, framing costs, and setup costs.” box “. (Al-Hadid is currently represented by Kasmin in New York and Berggruen in San Francisco. The artist also works with Galleri Brandstrup in Oslo, Norway.)
In 2020, both parties agreed to a confidential settlement as well as mediation for any outstanding issues. But Boesky alleged that Al-Hadid did not consent to his mediation efforts, leading the gallery to file a lawsuit in 2021.
But Judge Nock sided firmly with the entertainer, writing in an 18-page decision that their agreement was “silent on the question of ownership”.
The agreement, he writes, “does not employ any language conveying or transferring partial ownership of the sculptures to [the gallery]and the terms do not clearly demonstrate an intention to do so.
Instead of a transfer of ownership, the agreement was for a consignment, whereby the gallery would attempt to sell the sculptures in return for a portion of the proceeds from the sale.
“Thus, the agreement is unambiguous as it does not confer or transfer any ownership rights in the sculptures to the plaintiff.”
Notably, Nock added that Al-Hadid successfully demonstrated that the gallery’s claim of ownership “goes against the Arts and Cultural Affairs Act”, which designates the artist as the “ccreator of a work of art”, and therefore its owner.
“This decision is a resounding victory for Ms. Al-Hadid and all artists, protecting their property rights over their own works of art,” the artist’s attorney, Wendy Lindstrom, told Artnet News. “The court rejected Marianne Boesky Gallery’s claim for ownership under a profit-sharing agreement, finding the gallery’s position totally unfounded. Of course, Ms. Al-Hadid is very proud to have her name on this decision, and we couldn’t be happier with the outcome.
But Paul Cossu, an attorney representing Boesky, said his client disagreed.
“The gallery purchased a stake in the artwork directly and also advanced the production costs of the sculpture. The court wrongly held that the gallery was not entitled to recover either the share of ownership it had purchased or the production costs advanced by the gallery. Allowing Mrs. Al-Hadid to keep the entire proceeds of the eventual sale without paying the gallery its share would be unjust, both legally and morally, punishes the gallery for supporting the artist when the artist does not could not afford to make the sculpture, and does not reflect the agreement that was made with the artist.
He added that the gallery would now appeal the decision.
The auction record for a work by Al-Hadid is $62,500, set at Christie’s Dubai in 2014, according to the Artnet price database.
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