The end stages of anyone’s life are likely to be somewhat chaotic. Ailments consume one’s thoughts, strength wanes, memory fades, and the ability to take care of ordinary activities, albeit work or just shopping for food, declines. Those with jobs are apt to retire – the business will go on – and devote the remainder of their lives to a less stressful existence. In 1996, multimedia sculptor Nam June Paik (1932-2006) suffered a stroke that largely curtailed his ability to create new installations, but his career was far from over. Exhibitions of his work were being planned, new pieces were still being fabricated and existing works continued to be put up for sale at galleries. What’s more, a series of sculptures purportedly by Paik, but which the artist denied were his, were put up for sale, leading to two lawsuits against Paik, which his lawyers chose to settle, because Paik was not deemed mentally competent to testify at trial. “You can see this as people taking advantage of a senile artist,” said Paik’s nephew and estate executor, Ken Hakuta. “He was sick.”
The lawsuits were eventually resolved out of court. Had Paik maintained a documentary record for all his work – “So-and-So Gallery or studio assistant is authorized to produce this-many pieces, to be titled this, this and that and sold for these prices,” signed and initialed by all parties involved – the confusion might have been resolved more quickly and with less expense. Good recordkeeping, unfortunately, is not one of the characteristics of highly successful artists. Diminished brain function, however, may prove catastrophic for an artist whose business is run completely out of his or her head. “Just getting old is hard,” said Dr. John Zeisel, director of the Woburn, Massachusetts-based organization Artists for Alzheimer’s. “Bills don’t get paid; things don’t get put away. Most creative types have things lying around anyway and, when they develop dementia, it becomes much harder to organize.”
Among the problems that may occur are:
• Artworks that have been loaned to a gallery, collector or museum and are forgotten. The recipients may construe the loans as gifts, sometimes selling the works.
• Artworks consigned to a gallery and forgotten. Galleries, too, sometimes forget to pay artists.
• Images that are licensed for commercial use, also forgotten. “Postmortem royalties, with few exceptions, tend to taper off,” said Elliot Hoffman, a lawyer with an arts practice in New York City, “but sometimes royalty payers forget to pay the artist or the artist’s estate or heirs. Sometimes, they just stop paying and wait to see if anyone complains.”
• Elements involved in the process of creating a multiples edition, such as mock-ups, proofs, maquets, molds or drawings, are overlooked by the artist but are subsequently used or sold by the publisher, fabricator or foundry.
• Artworks that are not documented with photographs or written information (title, size, year, medium), which may pose later problems of attribution. Artists are generally thought to be the best judges of their own work (although there are instances where some have been less than truthful, denying early pieces they now dislike or, in the case of Giorgio di Chirico, intentionally misdating works) but, when the artist suffers memory loss (as in the case of Nam June Paik) or dies, the problem of attribution is magnified. Determining when a work was created and by whom becomes a more drawn-out and expensive process.
“Artists, by definition, are not business-minded,” Hoffman said, which is neither true nor a definition, but thee have been numerous instances of artists neglecting to keep good records on their artwork, loans, licenses and consignments, leading to headaches and lawsuits during an artist’s lifetime and beyond.
If artists kept better records on their work and careers, there might be less need for lawsuits, authentication committees – art fakes hardly would be profitable – and catalogue raisonnés. Toward that goal, the Joan Mitchell Foundation (155 Avenue of the Americas, New York, NY 10013, 212-524-0100, www.joanmitchellfoundation.org) has established a grant program enabling artists to document their work. The foundation will underwrite this process by hiring an archivist and paying for a computer (if need be) and the creation of an image and text database rather than providing money to an artist directly. “If you just give artists money, they might not spend it on archives,” said Carolyn Somers, executive director of the foundation. “While they are alive, artists can do their own catalogue raisonné.”
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