A ruling issued this week by the New York State Supreme Court draws the curtain on financing deals between dealers and artists and could have far-reaching implications for artists’ rights under New York law in the future.
The decision, written by Judge Louis L. Nock in favor of sought-after artist Diana Al-Hadid in her legal battle against gallery owner Marianne Boesky, which the dealer filed in early 2021, involved possession of a bronze sculpture Al-Hadid created as part of a 2011 agreement in which Boesky’s company agreed to pay the manufacturing costs for three works plus two artist proofs.
At the time Al-Hadid and the Boesky Gallery split in 2019, which Boesky said was because the gallery “could no longer collaborate with the artist,” one notable sculpture remained unsold.
According to Boesky’s original complaint, the manufacturing cost was $25,000 for each image, and an email from the gallery to the manufacturer stated retail prices of approximately $75,000 each. As part of the original agreement, once the works were sold, profits would be split between the manufacturer, the artist and the gallery in three ways. Boesky, who later bought the creator’s interest in the statue, claimed two-thirds ownership of the work.
According to the complaint, by the time of the split, Al-Hadid owed Boesky a “six-figure sum” for “manufacturing costs, rent for Defendant’s studio, framing costs, and crate costs.” (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, the two sides agreed to a confidential settlement, as well as mediation for any outstanding issues. But Boesky claimed that Al-Hadid did not agree to her mediation efforts, prompting the gallery to file the lawsuit in 2021.
But Judge Nock firmly sided with the artist, writing in an 18-page decision that their deal was “silent on the matter of ownership.”
The agreement, he wrote, “does not use any language that conveys or transfers any partial ownership interest in the sculptures to” [the gallery]nor does the terms clearly indicate any intention to do so.”
Rather than a transfer of ownership, the agreement was a consignment, where the gallery would attempt to sell the sculptures in exchange for a portion of the sales proceeds.
“Thus, the agreement is unequivocal in that no ownership interest in the sculptures is assigned or transferred to the plaintiff.”
Notably, Nock added that Al-Hadid successfully demonstrated that the gallery’s title claim †violates the law on art and culture”, which the artist refers to as the “ccreator of a work of art”, and thus the owner.
“This decision is a resounding victory for Ms. Al-Hadid and all artists, who protect their property rights in their own works of art,” the artist’s attorney, Wendy Lindstrom, told Artnet News. †The court rejected Marianne Boesky Gallery’s title claim under a profit-sharing agreement and found the gallery’s position to be completely unfounded. Of course, Ms. Al-Hadid is very proud to have her name on this decision, and we couldn’t be more pleased with the result.”
But Paul Cossu, a lawyer representing Boesky, said his client disagreed.
“The gallery has directly purchased an ownership interest in the artwork and has also advanced the production costs for the image. The court erroneously ruled that the gallery is not entitled to reclaim either the share of ownership that the gallery has purchased, nor the production costs advanced by the gallery. Allowing Ms. Al-Hadid to keep all of the final sale proceeds without paying the gallery its share would be unjust, both legally and morally, punishes the gallery for supporting the artist when the artist could not afford to sculpture, and does not reflect the agreement reached with the artist.”
He added that the gallery is now appealing the decision.
The auction record for a work by Al-Hadid is $62,500, according to the Artnet Price Database in 2014 in a Christie’s Dubai.
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