Lawsuit By Noted Artist Against Her Former Gallery Serves As a Reminder of the Important Duties Galleries Owe To Artists
05/15/2020Abstract artist Howardena Pindell has sued several individuals and entities related to the G.R. N’Namdi Galleries, which, beginning in the late 1980s, represented her work in spaces located in Detroit, Chicago, New York, and Miami. The case raises a host of legal issues that are, unfortunately, all too common in the realm of artist-gallery relationships.
Ms. Pindell’s allegations, first asserted in late January, seek to paint a picture of an enterprise in which the galleries’ principals, George Richard N’Namdi and his son Jumaane N’Namdi, used a web of corporate entities for their own personal gain, and in the process breached their duties to her. See S.D.N.Y. Docket No. 1:20-cv-00818-PGG. She says they failed on many occasions to provide accurate accounts of sales and inventory of her works at the galleries, and that payments owed to her were late or not received at all. She describes situations in which works are unaccounted for; situations where it is still unclear whether works were sold or not; and situations where works were sold at extremely low prices without her authorization. She also names a Texas-based collector, Arthur Primas, as involved in the galleries’ misconduct; she alleges that he and the gallery defendants had a longstanding scheme in which Primas would buy her works at low prices from the gallery defendants and then resell them for far higher, splitting the profits with the gallery defendants.
The artist brings a variety of claims, including replevin, conversion, breach of fiduciary duties owed to her by the gallery as her agent, and violation of the New York Arts and Cultural Affairs Law (“NYACAL”) § 12.01. She also asserts claims under similar provisions of Illinois, Florida, and Michigan law which provide certain protections for artists. The various claims are asserted against all of the named N’Namdi entities, with the complaint urging that the court should “pierce the corporate veil” between the various defendants because there is effectively no real distinction between them. She seeks several forms of legal relief, including the recovery of certain physical works of art still allegedly in the defendants’ possession; lost revenue caused by the purported breaches of fiduciary duty; recovery of the proceeds from the sales of certain artworks; and damages for unjust enrichment, emotional distress, and punitive damages.
Interestingly, Ms. Pindell initially asserted federal racketeering (RICO) claims, but dropped those claims in her newly amended complaint filed in mid-April. In a letter to the court, her counsel explained that, in light of the current pandemic crisis, the plaintiff had reevaluated “the risks of complicating the proof of a relatively straight forward case” versus the potential reward of suing under RICO. This is consistent with the fact that, in recent years, we have seen a trend toward the use of RICO claims in art disputes (see here and here for examples). In some cases, successful RICO claims can result in larger potential recoveries (for example, a plaintiff may be eligible to recover treble damages); but they can also be complex to litigate, as compared to common-law claims like the conversion and breach of fiduciary duty theories Ms. Pindell will pursue going forward. Her decision to drop the RICO portion of her case is indicative of how litigants may be already changing their strategies to adjust to the realities of litigating in the shadow of COVID-19.
As it now stands, Ms. Pindell’s allegations focus on certain duties owed by art galleries to the artists they represent. Some of these duties arise out of long-established case law regarding “agency,” while other obligations are enshrined in or strengthened by state statutory regimes, including NYACAL. Ms. Pindell’s lawsuit serves as an important example of why it is so important that artists and galleries understand their rights and obligations to one another. This is particularly true in today’s difficult economic climate, which, as we noted recently, may lead to an uptick in artist/gallery disputes. For more analysis of legal issues involved in the artist/gallery relationship, see the recent article we co-authored in Artnews (link here). Moreover, the artist’s decision to name Primas as an additional defendant is a cautionary reminder that collectors and buyers can be drawn into an artist-gallery dispute, and should be wary of situations where a gallery seems to be offering an artist’s work on terms that are too good to be true.
Another issue that may become important in Ms. Pindell’s case is whether some of her claims may be barred by relevant statutes of limitations. Some of the issues described in the complaint date back as early as 2009. Unfortunately, situations like this are not uncommon in dealings between artists and galleries; often, an artist and gallery may have a years-long relationship under which parties might let problems “slide” for extended periods of time in hopes of keeping the peace or working things out. But when the issues finally become insurmountable, those delays may complicate the availability of legal relief.
Finally, it is noteworthy that this particular case takes place against a cultural backdrop in which African-American artists like Pindell, who were long undervalued by the art world establishment, have, in recent years, begun receiving more well-deserved attention, acclaim, and market success (see here, here, and here for just a few of many recent articles discussing this trend). Pindell’s complaint alleges that other African-American artists or their estates, including the estates of Al Loving and Herbert Gentry, also had similar problems with the N’Namdi defendants; she cites this alleged pattern of conduct in support of her request for punitive damages. (Indeed, Loving’s estate actually sued several related N’Namdi defendants back in 2005 over disputes involving art and proceeds allegedly owed to the estate; the parties engaged in discovery and litigated for years before settling the matter. See Loving v. N'Namdi, S.D.N.Y. Docket No.: 05-Civ. 7966 (JGK).)
These dynamics are of course, important in placing this dispute in the context of larger conversations occurring in the art community regarding diversity and representation. They also are indicative of the fact that the power dynamics in artist-gallery relationships can change over time. When an artist first begins selling with a gallery—especially an artist who is not yet well-established or whose work has not yet been embraced by the market—the gallery may have relatively more bargaining power and the artist may feel less able to assert his or her rights vis-à-vis the gallery. Over time, as an artist begins to experience more success, resulting in higher demand and higher prices, he or she may feel better-positioned to challenge longstanding practices or issues with a gallery.
The Pindell case is ongoing, and the N’Namdi defendants and Primas have signaled their intention to seek dismissal of the claims. We will continue to follow the dispute as it unfolds.
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