Splitting With One's Dealer May Feel Like a Divorce

09/14/2011 05:18 pm ET | Updated Nov 12, 2011

The arts are more and more described as a business, yet so many artists and dealers refer to their relationship as a marriage. Similar to romantic link-ups, artists and dealers often claim to have met through mutual acquaintances; contented artists talk of being listened to, or taken care of, by their dealers; they invite each other for dinners, parties, even vacations; their break-ups are likened to a divorce. Supporting the entire affair is the sale of artworks.

Severing the artist-dealer relationship is often the result of hard feelings on at least one side -- the dealer isn't promoting or selling work, the dealer does not pay promptly after sales take place, the dealer isn't showing interest in the artist, the artist made private sales, the artist isn't producing high quality work -- and produces hurt feelings on the part of whomever has been left behind. Often, there is a complicated mix of reasons that an artist and dealer split up.
Sculptor William King left the Zabriskie Gallery in New York in part because "the gallery had a low ceiling, and I expected higher prices and more sales," but the precipitating event was the dealer's "refusal to give my girlfriend a show." He went to dealer Terry Dintenfass, who agreed to exhibit the work of his girlfriend. On the other hand, painter Jacob Lawrence ended his relationship with Terry Dintenfass because "I wasn't getting paid the money I was owed, I didn't get quarterly statements from her, and she was generally hard to work with."

One way in which artists often judge the solidity of their relationship with their dealers is the number of telephone calls from their galleries. "Artists want to hear regularly from their dealers," Curt Marcus, a New York art dealer, said. "It's important that they know they are being thought about." Both Gregory Gillespie, a painter, and Faith Ringgold, a painter and sculptor, said that they are called by their respective dealers at least once a week, relaying information on prospective buyers, past collectors, a new show, asking how's the work coming along, how's the family -- the specific content may not be as important as the ongoing connection.
Painter Richard Haas noted that a sign of how his relationship with a dealer "is fizzling out" is that "the dealer is calling you most of the time when you're in the middle of it; when you find yourself calling the dealer most of the time, you're not in the middle of it anymore. There are not enough phone calls, not enough visits to your studio; you don't get invited to dinner. You know you're at an end."

Many artists approach their relationship with dealers cynically. "You get priority treatment from dealers when your work is selling," said painter and collage artist Nancy Spero, "and dealers have no time for you when sales are slow. In other galleries, the attention you get is based on where you are in the pecking order of artists that the dealer represents."

Haas said that the relationship between artists and dealers is based "on mutual needs, but those needs keep changing, and one is seldom in sync with the other." For Haas, who is best known for his murals, dealers lose interest because they are "object-oriented," whereas his living is based on commissions, which are more difficult to arrange than private sales. Painter and photographer William Christenberry left the Zabriskie Gallery "as a matter of conscience" after he had been awarded a commission from the federal government's General Services Administration in 1979, "and the gallery wanted a substantial part of the fee as their commission. They hadn't help me get the commission, as a lot of other galleries do, and I didn't think they deserved any of it." Painter Peter Halley left dealer Larry Gagosian in New York because of the requirement that Gagosian be his exclusive agent. Dealers elsewhere in the United States and in Europe did not want to share sales commissions with the New York gallery, resulting in lost sales. "Seventy-five percent of my market is in Europe," Halley said. "My collectors are not likely to come to New York to buy. Dealers in Europe chafe under the requirement that they pay half of the commission they earn to my New York dealer." To his mind, Gagosian would prefer to forego sales than to lose his commission.

At times, the point of contention is whether or not the artist feels free to develop artistically under the existing relationship. Jacob Lawrence noted that he ended his association with Elan Gallery because the dealer, Charles Allen, "wanted to buy all the work he showed, which put me in the position of creating for him. He didn't come out and say, 'I want you to paint in such-and-such a way,' but it still felt that way to me and I wasn't comfortable with that."
Similarly, Faith Ringgold, who was represented by New York art dealer Bernice Steinbaum from 1985 to 1993 before joining ACA Galleries, said that she "wanted a gallery that was more high-powered, that could get better prices and place my work in better collections. But it wasn't just the money; I wanted my entire career to move forward, and I sensed a tendency on Bernice's part for me to stay where I was."
Ringgold noted a mounting number of suggestions for, and outright criticisms of, her work by Steinbaum. "We weren't agreeing on anything anymore," she said. "It was just a constant aggravation that kept me from concentrating on my work. The only thing I could do was leave her gallery." When she decided to leave, Ringgold had her lawyer contact the dealer and arrange the split-up.
Most artists announce their decision to leave in person, sometimes in a letter, and hope that the break-up with the dealer will be painless and amicable. "I tell my artist clients, 'Don't go away mad. Just go away,'" Jerry Ordover, a lawyer who often represents artists, said. "When you start thinking about leaving a gallery, do it in steps: Start by reducing the size of the inventory; take back works that have been there two or more years to start with, then take more recent pieces. You don't want to leave hostages with a dealer whom you've just told you're leaving. You might find the works get kicked around, or you're told they are lost. Next, you want to get all the money owed to you, little by little if not in a lump sum. You want to settle the money part while the two of you are still on good terms."
Complicating the break-up may be the question of money owed to the dealer for advances against sales (sometimes called stipends) or the costs of advertising, framing, restoration, the purchase of materials or the publication of a catalogue. An artist may not have the cash to immediately cover the debt and attempt to repay the dealer through works of art. When Jacob Lawrence left Terry Dintenfass, she had some graphic prints of his and he owed her some money; they agreed to let her keep the prints in exchange for wiping out the debt.
The problem isn't always resolved as easily. "If there is an agreement that money owed should be recompensed in art, you want to know how that art is selected," Martin Bressler, a lawyer and vice-president of the Visual Artists and Galleries Association, said. "Does the artist pick? Does the dealer? Do they pick together?" When Hirschl & Adler Galleries in New York decided to end its relationship with painter Joe Zucker in 1993, following a private studio sale that the artist had made to a collector, the gallery refused to return 26 of his works until $36,000 in advances plus interest had been repaid. Zucker filed a lawsuit and, in 1996, the New York Supreme Court ruled against Hirschl & Adler. The artist and gallery eventually settled the debt by selecting four works (the gallery chose from a sample of works that Zucker selected).
Ending a relationship amicably is important not only since the dealer may be in possession of an artist's work but because "the art world is small," said painter Nancy Hagin, who left Terry Dintenfass in 1980. "It's not like I'm never going to see her again. I see her again and again and again." Within a small art world, an incensed dealer may begin denigrating the reputation of an artist both to other dealers and collectors, adversely affecting the artist's career. Even though their formal relationship has ended, the dealer may still remain a source of future sales and commissions, and some artists may return to a former dealer. William King returned to Terry Dintenfass after his experiment with Virginia Zabriskie, and Gregory Gillespie was invited back by dealer Nina Nielsen in Boston a couple of years after she had "asked me to leave following a big blow-up we had."
The experience of ending a relationship is almost always unpleasant, artists and their dealers report, but it is an unpleasantness that everyone tries to get over quickly. Over the course of a career, an artist may change dealers any number of times, and knowing how to make a satisfactory exit must become one more skill to acquire. The dealer Betty Parsons "wouldn't talk to me for a few years when I told her I was going to show my work at the Janis Gallery," said painter Ellsworth Kelly, "but we patched it up and even took a vacation together." When Kelly left dealer Sidney Janis for the Leo Castelli Gallery, "there was some initial bitterness there, too, but that didn't last long and we remained good friends."
The agreements that artists and dealers make when they start a relationship should contain some strong sense of how it might end, according to Joshua Kaufman, a lawyer in Washington, D.C who noted that when he drafts a consignment agreement between an artist and a dealer, "I spend more time on the termination clause than on anything else. You don't want to leave this stuff up to when everyone's feelings are hurt."
The overall contract will indicate how long the agreement is in effect. Bressler said that the contract term should be a minimum of three years, if the gallery is the artist's exclusive agent, "anything less than three years doesn't give the gallery enough time to really promote the work." Far longer terms, however, may bind an artist to an arrangement that he or she has outgrown.
Some artist-dealer consignment agreements allow either party to terminate the contract at will if there has been a clear breach (for instance, artist isn't paid, shows don't take place, artist violates the exclusivity) or if either side is simply unhappy with the arrangement. Even if there is no specific termination clause, one cannot be bound by a contract indefinitely. According to Barbara Zucker, Faith Ringgold's attorney, "the contract may be terminable at-will" or, at worst, the statute of limitations will not permit the agreement to be enforced past one year.
Of course, when there is no written agreement between artist and dealer, either side may end their relationship at any time. However, the lack of some formal or informal (an exchange of letters) document may lead to other misunderstandings or even a drawn out legal action that promises to expensive and not necessarily conclusive.