Grossman LLP | <strong >In Pair of Lawsuits, Robert Indiana’s Former Associates Are Vying for Control of the Late Artist’s Legacy</strong >
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  • In Pair of Lawsuits, Robert Indiana’s Former Associates Are Vying for Control of the Late Artist’s Legacy
    08/30/2018
    The future of the late pop artist Robert Indiana’s legacy hinges on the outcome of a pair of lawsuits that have been underway since his death in May.  On the one hand, a foundation with intellectual property rights in Indiana’s oeuvre claims that his long-time caretaker conspired with others to exploit the artist and profit from selling forged Indiana works.  The artist’s former caretaker denies these allegations, and the caretaker’s co-defendants have described the foundation’s lawsuit as “egregiously frivolous,” claiming for their part that the “malevolent” foundation failed to pay the artist what it owed him.  Ultimately, these lawsuits will determine who controls Indiana’s estate, which comprises roughly $50 million in artwork and property.     
     
    Probate proceedings regarding the estate were commenced in Maine shortly after the artist’s death in May.  Most of Indiana’s property and artwork was left to an organization to be run by Jamie Thomas, Indiana’s former caretaker.  The day before Indiana died, however, the Morgan Art Foundation (“MAF”), filed a lawsuit against Thomas and others that strenuously objects to Thomas playing any role whatsoever in managing Indiana’s estate. 
     
    MAF owns the intellectual property rights to many of Indiana’s most iconic creations.  Although Indiana skyrocketed to international renown after creating his 1965 “LOVE” print and the succession of related sculptures, MAF points out that his career suffered as a consequence of the over-commercialization of his works.  Indiana moved to the remote island community of Vinalhaven, Maine, in 1978, where he remained until his death earlier this year.    
     
    In the 1990s, MAF claims, it sought out Indiana with the aim of rehabilitating his artistic reputation.  MAF’s advisor, Simon Salama-Caro, purportedly held a series of meetings with Indiana in Vinalhaven where he laid out MAF’s strategy to “carefully educate the market and bring to the attention to art historians in museums the importance and quality of Indiana’s works.”  Indiana was on board, according to MAF, and the two subsequently entered into two binding agreements. 
     
    In a 1999 contract, Indiana granted MAF copyright, trademark, and other rights in certain images in exchange for 50% of the net income MAF received from the reproduction, promotion, and sale of these images.  A few years later, the parties entered into a second agreement that gave MAF the exclusive right to produce, fabricate, own, and sell certain Indiana sculptures largely based on these same iconic images.  Importantly, these agreements also gave MAF the right to sue for any infringement of the rights Indiana conveyed to the foundation.
     
    Eventually, MAF alleges, it succeeded in enforcing Indiana’s rights in the art market and obtaining for the very first time royalties for Indiana resulting from the permissible use of his images.  Indeed, MAF claims to be responsible for effectuating Indiana’s “comeback,” which culminated in a 2013 exhibition at the Whitney Museum, “Robert Indiana:  Beyond Love,” the first major retrospective of the artist’s works.   
     
    But MAF claims that Thomas and his co-defendants wrongfully interfered with their efforts to protect Indiana’s output.  In its lawsuit, MAF alleges that Thomas and his co-defendants deliberately kept Indiana isolated from his friends and associates, created forgeries of Indiana’s works, orchestrated the exhibition of the forged works in museums, and eventually sold these forgeries to unwitting buyers.  Indeed, in the period since the 2013 Whitney retrospective, MAF claims, Thomas perpetrated a series of “sinister” events that ultimately gave him total control over Indiana’s artwork and property. 
     
    Thomas is an unlikely figure to oversee the estate of a renowned artist.  MAF describes him as a “fisherman from Maine with no art expertise,” whom Indiana had originally hired to “run errands and do work around the house.”  According to the New York Times, Thomas first worked for Indiana in the 1990s, “one in a crew of young people who helped the artist stretch canvas and other tasks.” 
     
    By 2014, however, Thomas effectively controlled all access to Indiana, and he acquired power of attorney from the artist in 2016.  That same year, Thomas’s purported co-conspirators, American Image Art (“AIA”) and its founder Michael McKenzie, published, marketed, exhibited, and sold forged Indiana works.  MAF claims the total value of this scheme exceeds $30 million.  It alleges that Thomas, McKenzie, and AIA violated MAF’s rights to Indiana’s works and defamed MAF and Salama-Caro to prevent them from exposing their true designs. 
     
    Thomas answered MAF’s Complaint, largely denying its allegations.  And for their part, McKenzie and AIA present a starkly different picture of the events underlying this dispute.  They filed an Answer to MAF’s complaint earlier this month, and asserted counterclaims against MAF and cross-claims against Thomas.  McKenzie purports to have been Indiana’s friend and art publisher since the 1990s, and claims (as MAF does) to have “reintroduced Indiana’s artwork to an indifferent art world and an uninterested public[.]” 
     
    With respect to many of the works MAF characterizes as forgeries, McKenzie and AIA contend that these were not forgeries at all but the direct result of a successful partnership initiated by Indiana himself.  Moreover, AIA purports to have to paid the artist nearly $10 million in royalties under an agreement between AIA and Indiana.  According to McKenzie, Indiana was “afraid” of MAF and its “shadowy dealings,” and MAF’s lawsuit unfairly placed AIA “in the middle of a business divorce between an artist and a malevolent partner.”  Ultimately, McKenzie and AIA argue, MAF’s lawsuit is merely a tactic to distract from MAF’s failure to pay the artist what it owed him. 
     
    Indiana’s probate proceeding has now become intertwined with MAF’s New York action, and the Maine Attorney General’s office has stated that it will be monitoring MAF’s case.  The legal representative of Indiana’s estate, James Brannan, is seeking documents to determine the full extent of Indiana’s assets, which he believes “may have been conveyed away or otherwise misappropriated or sold without due compensation.”  Indeed, Brannan has pointed to MAF’s lawsuit as evidence that Thomas and McKenzie may have sold derivative Indiana works without properly compensating the artist, but also suspects that MAF itself may not have fully accounted to Indiana for what it owed him. 
     
    For now, the parties may be forced to arbitrate the New York action.  AIA alleges that its agreement with Indiana contains an arbitration provision requiring that MAF’s lawsuit be stayed.  The court has ordered the parties to submit briefing on the issue of whether arbitration is required, and it should issue a ruling later this fall.  We will be monitoring this contentious legal battle over one of the last century’s most significant pop artists.