SQUARE TIMES
The art world appears to be the most backward thinking, anti laissez-faire environment in which to implement projects; compared even to the accounting or legal realms. Information, contacts, and resources are guarded like state secrets. The de rigueur four white walls, bland and unimaginative, uniformly adorn all exhibition spaces the world over, institutional and commercial alike. That is, save for a few adventurous museums such as the Palais de Tokyo in Paris, and the Guggenheims in Las Vegas at the Venetian Hotel. Who could have imagined that innovation would arise not from the cottage industry, entrepreneurial gallery universe but from the staid world of art institutions? Considering the exclusive, high-end boutique atmosphere of most galleries and "alternative" spaces, I suppose it is no surprise indeed. Galleries went fleeing wholesale from the accessible Soho neighborhood in New York never casting a backwards glance at the ubiquitous, dreaded tourists and casual passers-by. The destination instead was shifted to the Chelsea district, well clear of the reach of public transportation, and replete with boundless garage spaces at the ready for Richard Gluckman (and the wannabes) to work his ho-hum, tiresome architectural legerdemain. What you have is akin to the Turbine Hall Syndrome, derived from the gigantism of the Tate Modern foyer in London-get big art to fill a big space for the sake of filling a space, irregardless of the content. Art that would not exist in such form other than to consume the sheer volume of the container. The more the merrier, and in the process feeding the market with plenty of fodder, I mean, masterpieces like 80 or 100 spot paintings.
TIMES SQUARE
I would rent a ground floor storefront situated squarely in the Times Square district to present a group show of emerging and under-recognized artists in all media, with a restaurant, separate but contiguous, that had the possibility of seamlessly becoming one joint space. This would in effect create a comfortable interior in which to view art and a social one to boot. Similar to the flickering figures across the facade of the NASDAQ building, and the video images that race across much of recent Times Square architecture, art would bulge from this storefront rather than the usual corporate blather back onto the street. The inside would be designed by Vito Acconci an artist that has radically shifted his practice over the years without paying heed to popular tastes, and constantly challenged himself and his public in the process. Acconci has suffered mightily in the eyes of the art market for assuming this activist position. Acconci Studio has recently designed ConTEMPorary, my new experimental space at 14 Charles Lane in New York's West Village, with the only parameter that there be no white walls (wending, maneuverable ones of steel mesh were utilized instead). Rather than the status quo of Tuesday to Saturday, 10 AM -6 PM hours prevalent on every continent where a contemporary gallery resides, this space would be open seven days a week, from 9 AM to 12 AM. This would intrinsically expand upon the micro-audience that typically attends any given contemporary exhibit. Instead of constantly devising ways to whittle down an audience as the galleries are wont to do, why not reach out to a mainstream audience and subtly introduce them to the world of art? The manner in which this could be almost effortlessly accomplished is not by convincing the public that art is solely for the committed, and knowable only to professionals, but gently coaxing people to trust their own intuitive reactions to things in and of themselves. Call me a cynical idealist. And by the way, there certainly would be no sign in sight that delineated this place as a gallery-nothing would more surely alienate and turn away the street traffic except maybe a banner announcing a site to volunteer for the inevitable war in Iraq.
Monday, December 16, 2002
Thursday, December 5, 2002
THE UNENFORCEABLE ANDREA ROSEN CONTRACT (ARTinvestor Magazine, Winter 2002)
A John Curin painting appeared in an advertisement for an upcoming auction at Phillips in an art magazine. When Andrea Rosen of the eponymous gallery got wind of the consigned Curin lot, she notified the auction house of a sales agreement in effect that every client of the gallery is compelled to sign prior to the purchase of any artwork. The contract states that each collector will: offer the work back to the Rosen Gallery should it be resold; not auction a piece under any circumstances; and, not exhibit it without written consent of the artist. Additionally, if the gallery declines to purchase a work prior to resale, the original buyer must forward to Rosen the name and address of the new collector. Phillips withdrew the Curin slated for auction. Andrea Rosen succeeded in not only restricting the free transfer of an artwork, but even further, prohibited the transfer itself. Signing of the so called "Sales Agreement" is now a trend that has been followed by Matthew Marks, and Barbara Gladstone galleries as well-a blow to laissez-faire economics that is as incomprehensible as it is unsound.
A legal analysis of the relevant case law and applicable statutes in New York State and on a Federal level reveal that the contract is on its face illegal and unenforceable in a court of law. A casual conversation with a staff member of the Rosen gallery disclosed an admission of this fact, which indicates that the intent to continue to proffer the document is plainly to intimidate gallery clients into falling in line if they wish to continue doing business with Rosen and her colleagues. Many unsuspecting collectors that have abided by the wrongful covenants unilaterally dictated by the galleries have in essence been robbed of the opportunity to achieve full fair market value for their artworks in the resale and auction markets.
The common-law rule against unreasonable restraints on the distribution of property invalidates unduly restrictive controls on future transfers but requires a case by case analysis that measures reasonableness of the restraint by its price, duration and purpose. The statutory rule provides that any restrictive transfer without delimitation is void if it suspends the absolute power of alienation for a period beyond lives in being at the creation of the covenant plus 21 years. Both the statutory and common-law rules attempt to strike a balance between society's interest to freely transfer property and the rights of parties to control future transactions. There is no consideration paid for by Rosen for the right to restrict subsequent sales; such alleged "agreement" is unlimited in time and could conceivably last forever; and, the purported purpose of protecting her artists' markets is not outweighed by the unqualified restriction on free trade. Such agreements have in the past been upheld if they facilitate a broader marketing of the art, rather than the Rosen case which only applies a prophylactic constriction of the marketing of the works. The Rosen Sales Agreement fails on all three fronts, not even taking into consideration the Draconian ban against auctioning. What has been upheld on previous contracts of this nature but missing from the Rosen version is a provision entitling the collector to offer the artwork to a third party and only then to provide the option holder (Rosen) the chance to meet the price.
The more patently offensive proviso calls for no auctioning of the art. Where auction restrictions have been upheld they have provided the collector with the possibility of proposing a price for the artwork to the dealer and if that price was not agreed upon between the parties, it was set forth that a major auction house representative set a price level. Rosen's proscription to auction hinders not only the buyer's ability to achieve the most for their art when they wish to sell, but also additionally, the artist's capacity to increase their market levels via public, open auction. Such clause is unreasonable under any interpretation of the law. Instead of buyers beware, sellers beware! Would anyone like to join a class action?
A legal analysis of the relevant case law and applicable statutes in New York State and on a Federal level reveal that the contract is on its face illegal and unenforceable in a court of law. A casual conversation with a staff member of the Rosen gallery disclosed an admission of this fact, which indicates that the intent to continue to proffer the document is plainly to intimidate gallery clients into falling in line if they wish to continue doing business with Rosen and her colleagues. Many unsuspecting collectors that have abided by the wrongful covenants unilaterally dictated by the galleries have in essence been robbed of the opportunity to achieve full fair market value for their artworks in the resale and auction markets.
The common-law rule against unreasonable restraints on the distribution of property invalidates unduly restrictive controls on future transfers but requires a case by case analysis that measures reasonableness of the restraint by its price, duration and purpose. The statutory rule provides that any restrictive transfer without delimitation is void if it suspends the absolute power of alienation for a period beyond lives in being at the creation of the covenant plus 21 years. Both the statutory and common-law rules attempt to strike a balance between society's interest to freely transfer property and the rights of parties to control future transactions. There is no consideration paid for by Rosen for the right to restrict subsequent sales; such alleged "agreement" is unlimited in time and could conceivably last forever; and, the purported purpose of protecting her artists' markets is not outweighed by the unqualified restriction on free trade. Such agreements have in the past been upheld if they facilitate a broader marketing of the art, rather than the Rosen case which only applies a prophylactic constriction of the marketing of the works. The Rosen Sales Agreement fails on all three fronts, not even taking into consideration the Draconian ban against auctioning. What has been upheld on previous contracts of this nature but missing from the Rosen version is a provision entitling the collector to offer the artwork to a third party and only then to provide the option holder (Rosen) the chance to meet the price.
The more patently offensive proviso calls for no auctioning of the art. Where auction restrictions have been upheld they have provided the collector with the possibility of proposing a price for the artwork to the dealer and if that price was not agreed upon between the parties, it was set forth that a major auction house representative set a price level. Rosen's proscription to auction hinders not only the buyer's ability to achieve the most for their art when they wish to sell, but also additionally, the artist's capacity to increase their market levels via public, open auction. Such clause is unreasonable under any interpretation of the law. Instead of buyers beware, sellers beware! Would anyone like to join a class action?
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