The Bacon Estate (2)

On February 6, 2002, the High Court in London dismissed the claims brought by Brian Clarke against the Marlborough Gallery, on behalf of the Estate of Francis Bacon, who had decided not to pursue the matter. The Judge, Mr Justice Patten, was told that the parties had managed to resolve their differences, and would not require the court to conduct an estimated three month trial of the issues, which had been set to start on February 18,2002.

Bacon died in 1992 and his will named Clarke as one of two executors of his Estate, responsible for managing his affairs and ensuring that Bacon’s friend John Edwards received the artist’s assets remaining; after all expenses and taxes had been paid.

The first legal issue arose when the High Court ordered the removal of Clarke’s co-executor, who was a Director of the Marlborough Gallery. There was an apparent conflict of interest between the duty of the executors (to maximise the value of Bacon’s estate) on the one hand, and the duty of Marlborough’s Director (to act in the best interests of the Gallery), on the other hand. It would have been unfair to both the Gallery and the Estate for the Director to continue to act in both capacities. This decision left Clarke as sole executor, and he had no such conflicting interests, being a friend of Bacon in his later years and wishing merely to do his best for the Estate.

As the nature and extent of Bacon’s dealings with the Marlborough Gallery over five decades (from around 1956) began to emerge, Clarke’s concerns over the artist/gallery relationship began to develop. Eventually, Clarke’s concerns drove him to launch proceedings against Marlborough Fine Art (London) Ltd and Marlborough International Fine Art (Liechtenstein); he sought clarification of the nature and extent of the contractual relationship between the artist and gallery over 40 years. The Gallery resisted Clarke’s claims that it had dealt with Bacon inappropriately.

One of the major issues in the case was whether or not Bacon was subjected to undue influence by the Gallery, and this and other issues were complicated by the paucity of clear documentary evidence of the terms of the contract between them. The particulars of claim served by the Estate asserted that ‘the artist was bohemian lacking in business and financial experience without the benefit of any independent advice’; which claim the Gallery disputed.

The Estate also asserted that the Gallery owed the artist a high duty of care, attention and transparency in its commercial dealings with him, and had failed in these respects; for example; by paying Bacon £6,000 for a work and re-selling it for seven times as much; the absence of clarity as to whether works were ‘bought in’ by the Gallery and then re-sold for a profit it determined, or were sold by the Gallery on behalf of the artist as his agent; and that many paintings were unaccounted for. Marlborough strenuously resisted all such claims, and contended amongst other things that Bacon’s works were purchased ‘in arm’s length’ transactions.

Late last year the case took a dramatic turn when the High Court allowed Clarke to include in his claim a specific allegation: that, when Bacon was considering changing his dealer (from Marlborough to the Pace Gallery, New York), Marlborough unduly influenced the artist to continue with it by suggesting that he might then experience difficulties both in accessing money in his Swiss bank accounts and in his future dealings with the UK’s Inland Revenue (see AM 253).

This latest assertion appears to have flowed from a recent dialogue between Clarke and the well-known art historian Michael Peppiatt (a friend of Bacon), in which they had discussed Peppiatt’s recollections of his liaising with Arnold Glimcher, the Chairman of the Pace Gallery, New York around 1978. Peppiatt had evidently acted as honest broker, relaying to Bacon that Glimcher was interested in representing him and attending a meeting which was then arranged between the artist and Glimcher at which sale prices and Bacon’s shares thereof were discussed. Nothing came of this exchange and Bacon remained with Marlborough.

Days before what became the final High Court hearing on February 6, Peppiatt formally clarified to Marlborough’s solicitors that in his discussions with Clarke he had not encouraged Clarke to believe that there was any substance in the suggestion that Bacon had been blackmailed by Marlborough. And it was this event which triggered the settlement of the dispute and the formal dismissal of the Estate’s claims; the terms of the settlement are not public knowledge.

At the heart of this sorry saga lies the absence of clear documentation recording the nature and extent of the respective contractual duties and obligations of artist and gallery. For the past 25 years or so (and throughout roughly half the length of Bacon’s contractual relationship with Marlborough) this column and other informed commentators have increasingly and continually stressed the need for such clear documentation between artist and gallery; covering, amongst other things:

  • parties’ names and contact data
  • dealer’s engagement (exclusively or otherwise) to promote and represent the artist by one or any combination of:
    1. selling work
    2. arranging commissions
    3. arranging showings
    4. arranging lectures, talks and media appearances
    5. publications
  • which works are included: all; only paintings; only works on paper; sculpture alone, and so on; existing and/or future work
  • copyright: who owns it, manages and licenses reproductions and on what terms
  • moral rights: who can allow works or reproductions of them to be altered or amended in some way
  • geography: the limit of the dealership’s territorial representation (worldwide; only EU; EU and North America and so on)
  • length of representation: whether for a fixed term (normally no more than two years) or periodically renewable with written notice on either side
  • sales: pricing strategy: timing of release into primary marketplace; gallery’s commission; VAT arrangements
  • consigned works: details of finished or future works to be deposited with (consigned to) the gallery for sale/not for sale
  • bought-in works: how many and which ones will or may be bought in by the gallery; prices including discount to the gallery.

Crucially, such deals also need to clarify: when and how the artist will be paid, and for statements of account to be given by the gallery; details of all transactions including names of purchasers, prices, commission, and so on, and whether cash advances or stipends are to be set off against future income: the artist’s rights to have access to the gallery’s accounts and records, for the purpose of independent auditing (if ever required by the artist).

Finally, agreement as to what should happen to the works, benefits and obligations covered by the deal in the event of the artist’s death or the dealer’s bankruptcy or ceasing to trade. Sadly, the creation and regular updating of such documentation or similar records continue to be avoided by many artists and their dealers/galleries – often in the belief that they are unnecessarily bureaucratic and time-consuming matters. In truth, they are necessary ‘good housekeeping’ chores; every good home should have them.

© Henry Lydiate 2002

 

 

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.