All Artists Die - Plan What Happens to Your Work

December 2022, by Daniel Grant

The end of a famous artist’s life might be thought of as a time of tributes and celebration. But that was not the case for Robert Indiana, best known for his image of the stacked letters LOVE. 

He died at his island home in Vinalhaven, Maine, in 2018, a few months short of his 90th birthday. A day before his death, a lawsuit was filed by the artist’s agent, the Morgan Art Foundation, against his studio manager, Jamie L. Thomas, and against another company, the New York-based American Art Image, which Thomas allowed to produce allegedly unauthorized editions of the artist’s work. 

American Art Image was accused of copyright and trademark infringement. Indiana, described in the lawsuit as “bedridden and infirm” and intentionally isolated by Thomas, had a new will drawn in 2016, superseding his 2013 will, which turned over power of attorney to Thomas. 

“It is our contention that Indiana was in poor health, and he had a difficult time reading,” said Luke Nikas, one of the lawyers representing the Morgan Art Foundation. “He was not aware that he had assigned power of attorney and not mentally competent” to provide informed consent to what was being done in his name. 

Fraud? Forgery? Shortly after the artist’s death, an FBI agent arrived on the island to investigate Indiana’s death, ordering an autopsy, and Maine’s attorney general then brought a case claiming the estate paid excessive legal fees during litigation. There were lots of charges and countercharges. It took three years to conclude most of the lawsuits. 

When multimedia artist Nam June Paik (1932-2006) suffered a stroke in 1996, it 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. His lawyers chose to settle the lawsuits, 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.” 

Maintain Records

The lawsuits were eventually resolved out of court. Had Paik maintained a documentary record for all his work — signed and initialed by all parties involved — the confusion might have been resolved more quickly and with less expense. 

Diminished brain function 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.”  

Problems that may occur are: 

  • Artworks loaned to a gallery, collector, or museum are forgotten. The recipients may construe the loans as gifts, sometimes selling the works. 
  • Artworks consigned to a gallery are forgotten. Galleries, too, sometimes forget to pay artists. 
  • Images licensed for commercial use are 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, maquettes, molds, or drawings, are overlooked by the artist but subsequently used or sold by the publisher, fabricator, or foundry. 
  • Artworks 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 de Chirico, intentionally misdating works), but when the artist suffers memory loss (as in the case of 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.  

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