Rebecca Belmore -- Priceless Stories

Rebecca Belmore

Priceless Stories

“I AM WORTH MORE THAN ONE MILLION DOLLARS TO MY PEOPLE”

This single sentence was on a small sign carried by artist Rebecca Belmore as part of a performance piece which has become famous throughout the art world.  At the end of the performance outside the Vancouver Art Gallery, Belmore shouted “I quit.”  The question became, quit what?  Was Belmore quitting the performance, the art scene, being an artist or the court case with Pari Nadimi?  The sentence refers to a claim in court documents by Pari Nadimi Gallery (hereinafter “Nadimi” refers to both the gallery and the individual Pari Nadimi, Partner/Director and claimant in the suit, separate and apart) that Nadimi lost $100,000,000 as a result of Belmore ending her business relationship with the gallery.  The relationship was based on an oral contract between Belmore and Nadimi.  Nadimi brought a suit against Belmore claiming breach of contract in the amount of $750,000 as well as unspecified damages of approximately $250,000 for Belmore’s attempt to end her relationship with the gallery in November 2006.  

I have recently been witness to a series of heated discussions on my facebook page regarding an article I posted from the Globe and Mail. With the post, I indicated I didn’t know what to say about it.  Those of you that know me personally are aware that speechlessness is an unusual event for me.  I needed time to process.  The discourse on my FB page has, however, prompted a quick reply. I am limited to the public media on this matter.  The views expressed are my own.  They are in no way to be construed as a legal opinion.  I am indebted to the source material with which I write this article.  The sources are cited below and any misconstruction or misrepresentation of these works is the accidental fault of the author.  Though I have been asked to avoid the Ad Populum aspects of the case. This is impossible.  It is part of our legal system and at times a perfectly justified resource with that system. People use the media.

Pari Nadimi Gallery was established in 1998 and is described on their website as having “established a national and international reputation for its commitment to showing significant artists whose work is ambitious, challenging, intellectually motivated…represents some of the most distinguished Canadian and international artists.”

Rebecca Belmore is a Canadian Contemporary performance and installation artist of Ojibway descent whose international art career has spanned over 25 years.  She attended the Ontario College of Art and Design in Toronto.  Belmore was Canada's official representative at the 2005 Venice Biennale. Her work has appeared in numerous exhibitions both nationally and internationally.

In 2006, Belmore attempted to end the long-term relationship with Nadimi. This relationship was based on an oral agreement between Belmore and Nadimi.  The reason Belmore attempted to end the relationship was due to a breach of the terms of the oral contract by Nadimi.  Nadimi failed to pay Belmore for works that had been sold.  It became evident that the gallery had sold Belmore’s work and not paid her the artist’s share of the sale (50%), when one of the gallery’s clients- who had purchased a piece from the gallery- contacted Belmore with a question about the work.  It seems self-evident that any relationship between Nadimi and Belmore was an art based business relationship.  The entirety of their association was Belmore create works of art for sale and that Nadimi sells the works. Upon the sale of a work, each party was to receive 50% of the sale price.  Having failed to do this, Nadimi appears to be in breach of the contract.    Having discovered this, Belmore requested the return of all unsold artwork and any documentation regarding the sale of her work.  Nadimi refused. 

Though I am not privy to the exact terms of their specific agreement, generally, galleries take art on consignment and pay the artists’ percentage within a specified term after the sale of a piece.  This term is usually between 1 and 3 months.  These relationships are based on trust as the artist puts their property into the hands of another giving them power over the chattel (the works).  Whether one looks at this issue as a Bailiff relationship, a fiduciary relationship or a contract relationship, either party may terminate the relationship based on certain standards. Within this type of relationship, at no time does a gallery own the works of the artist. They have purchased no part of the work and therefore owe a duty to the artist to return the works if requested.  There is the issue of reliance and notice but a breach of this nature may discount these.

In 2007, Nadimi commenced a legal action , alleging the gallery had lost “potential” profits on the future sale of Belmore’s art.  Nadimi contends that Belmore did not have the right to end their relationship until the gallery had recovered all of its expenses and realized all of its 'potential' profits from selling Belmore’s inventory of work. Further, Nadimi claims that Rebecca interfered with 'potential' sales that were in progress at the time of the termination.  This claim appears to be based on a letter that Belmore sent to the Art Gallery of Ontario (which was in the process of acquiring a piece valued at $100,000) informing them of the situation between herself and Nadimi.

  The claim by Nadimi is for[1]:

•        damages resulting from breach of contract specified as $750,000,
•        recovery of marketing costs and other expenses,
•        recovery of revenues from 'potential' sales,
•        punitive damages for

o   Rebecca’s 'egregiously high-handed behaviour' and

o   'wrongful interference with the economic relations of the plaintiff.'

On October 30, 2008, Belmore made an application to the court for the return of artwork, documentation, and archival material.  Nadimi’s lawyers consented to the Order. Nadimi’s own lawyer was aware of the fact that Nadimi had no right to possession of the works of Belmore and further that Belmore had an absolute right to an accounting of the business dealing of Nadimi with regard to Belmore’s works in the gallery’s possession. Through these documents, it became evident that Nadimi had, in 2004, sold not one but two works without informing Belmore of the sale or paying her, her share.  This suggests that Nadimi held both their 50% share and the 50% share that rightfully belonged to Belmore. 

The lawsuit continues.  What is at stake is an artist's right to leave a bad relationship. This ‘bad’ relationship could be in the form of non-payment (theft), poor representation, poor accounting practices, personal grievances and the like.  If an on-going business relationship is not working, either party may end the relationship based on reasonable terms.  Business relationships rely on the transmission of money.  That is what any business is about.  Even Not-for-Profits need money to run their business. Based on Nadimi’s claim, the gallery was in possession of art, belonging to Belmore, in the amount of $1,500,000 (50% or the gallery’s share of the sales in the statement of claim).  Whether they could not sell the work, chose not to sell the work or sold the work and did not pay Belmore her portion of the sale, this is a ‘bad’ business relationship.  Any relationship where one partner takes 100% of the profits realized is a bad relationship.  Staying in such a relationship is bad for any business.

Belmore states that no part of her oral agreement with Nadimi required:

•        Nadimi’s permission to terminate the relationship,
•         nor did it include any provisions to guarantee the gallery any specific profit.
•        Further, there was never any requirement that any specific portion of Nadimi’s inventory of Belmore’s works had to be sold prior to either party ending the relationship.

It is important to remember that Nadimi commenced the lawsuit.  She is claiming the wrong.  This is about the money she feels she and her gallery are owed. Belmore is defending her right to possession of her property and the right to end a business relationship within the terms of that relationship. A great deal has been made about Belmore being in it just for the money.  Although she is an artist and therefore that is her business and the source of her income, she does not appear to have made a claim against Nadimi.  I am unaware of any pending claim nor if Nadimi has finally paid her out for the two works that initiated the breach. Belmore did allow Nadimi to complete two pending sales after November 2006. This allowed Nadimi to realize these “potential sales.”

It has also been suggested that Belmore’s newer works are ‘all about the case’ and ‘the money.’  I personally cannot see how an artist or any person could focus on anything else while in this situation.  An artist shows the world their vision.  It seems to me impossible to look around or beyond this behemoth obstacle. How could she help but have this influence her work.  Isn’t this why we find inspiration in an artist’s work?

The case brings forward a number of interesting legal issues:  

•       What are the ramifications of entering into any business relationship?

o   What are the terms of an oral contract?

o   How many breaches are necessary to warrant termination of a contract?

o   Can a party ever unilaterally end a business relationship?

o   Is reliance on a relationship enough to hold a party accountable?

•       Who owns the property rights in a consignment/steward relationship?
•       Who owns the intellectual property of an image ? (artist image or otherwise)

Though this is a case about an artist and a gallery that represented her, this case will potentially set new precedents in all business ventures.  This crosses over the art world into the world of business.  Based on the numbers, both Belmore and Nadimi have businesses, which run well into the six figures.  If Nadimi win their claim, this would set a standard whereby any business person could demand damages for “potential profits.”  This would suggest that there is no longer any risk in any business venture. Any and all partners, suppliers, distributors, even consumers could be held liable if we were to follow Nadimi’s reasoning.  Any business loss would suddenly be recoverable against those that were proximate to a business.   In the art world gallery create a space to display and sell works. 

Art galleries primarily run on a consignment basis.  They are acting as fiduciary for the beneficial interests of the artist.  The gallery has been given, by the artist, the right to sell the original work.  Generally, the artist maintains the intellectual property rights of the piece. Intellectual property rights give the creator or holder (of the right, not necessarily the hold of the original) exclusive rights to a work of the mind or intellect. This is separate and apart from the original work.  In art, this includes the right to copy, license, alter, sell or destroy. In this case, artists are concerned the courts will find that galleries have a right to their creations. This could spill over to IP rights that have formerly rested with the artist.

A final point that I find disturbing.  The gallery has positioned themselves very much like many other corporate entities.  They are presenting themselves as the poor victims.  They have engaged in this legal battle using the language of the injured party.  Their claim draws Belmore as the evil party in the proceedings.  They are suggesting they been hurt by her actions.  They are disregarding the withholding of artist revenue for years.  Nadimi is on the attack suggesting they have been wronged by Belmore’s departure.  Whether this is true or not, that Belmore will run out of steam, money or both and concede all or part of the demands made by Nadimi is frightening.  This case has been going on for almost 5 years.  Any artist not of Belmore’s status would have to have conceded long ago.  The financial burden on her art business, her personal finance and her life is unimaginable. 

Larger or more financially secure businesses often take this tact with smaller partners.  The smaller entities cannot maintain the court costs and must give up the case—even if they are in the right.  This is a problem with our legal system.  Money allows the more financially stable parties to, in affect, ‘buy’ a ruling that they are in the right even when this is clearly not the case.  I believe, Belmore is leading the charge against much more than even she recognizes.  Her art represents the struggle of the everyman/everywoman against the machine.  She deserves support to allow her voice to be heard.  Hopefully, enough people take an interest to ensure the right thing is done.

http://www.theglobeandmail.com/news/arts/the-story-behind-rebecca-belmores-i-quit-performance/article1719259/

http://www.facebook.com/pages/Rebecca-Belmore-Legal-Fund/156231281070631

http://www.londoncommunitynews.com/2011/12/million-dollar-message/

http://www.rebeccabelmore.com/home.html

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[1] It appears (based on a 2010 interview with the Globe) that in June 2010, Nadimi raised the amount sought for damages for wrongful dismissal from $250,000 to $750,000. Though I am unsure where this fits into the original claim or if it is represented by the damages for breach.

The Right to Rights

So, this has been bugging me the some time now.  It can not fit into a paper but I think it needs to be talked about.  Seems this may be the venue for me to release my frustration and flash some of my works. 

Recently there has appeared, in the media, a number of claims for violation against individual rights.  Specially, reports regarding the use of Airport Body Scanner, a ban on a breastfeeding mother and the infringement of the right to ride a bicycle without a helmet have all made the news.  One must first ask, “are these rightful claims of individual rights?”  I am a strong advocate for rights. Both, the creation and protection of human rights are essential in our society.  But sometimes, individuals and interest groups couch their social dissatisfaction in the guise of a rights-based legal argument. This is a detriment to the larger rights-based fights that need to be made. 

Describing norms as rights has dangers. The language of rights gives clear expression to fundamental freedoms. Rights are also associated with historical movements for greater liberty and equality, so assertions of rights in pursuit of justice can carry a resonance that other appeals lack. Fundamental rights, like the right to practice religion, freedom of speech, due process, and equal protection before the law, express in accessible terms the standards for minimally acceptable treatment that individuals can demand from those with power over them.  These rights are legally guaranteed powers.  Legal rights affect every citizen and legal entity in realization or defense of its just and lawful claims or interests (such as individual freedom) against the ‘whole world.' Rights dominate modern understandings of what actions are permissible in our institutions, forms of government, and contents of law. To accept a set of rights is to approve a distribution of freedom and authority, and so to endorse a certain view of what may, must, and must not be done.

Old Ways Carrying New

In the case of the Airport Body Scanners, privacy advocates and civil liberties groups claim that the scanners are breaching privacy laws.  They suggest the scanners are perform searches without probable cause and are illegal unreasonable searches that violate basic human rights. The BC Civil Liberties Association and other advocacy groups have called for a ban on airport body scanners suggesting the scans violate the human rights of groups such as the disabled, the transgendered, the elderly, various religious groups, pregnant women and children. I am not suggesting there is not a need for concern surrounding this issue.  In February 2010, it was revealed on the BBC’s Jonathan Ross show that naked images of Indian film star Shahrukh Khan were printed and circulated by a female airport security staff at Heathrow. Security staff did, it seems, violate privacy law and should be charged for such. But this should not be a rights based argument.  The peoples that need the ability to make this type of argument are being denied the ability to get on a plane because of their race or colour of their skin

PAINT, PAUSE, POSSESSION

Misuse of the rights argument happens too often and it softens the blow when the claim for actual violations occurs.  Leanne Scorah was denied entry to the play, As You Like It, because she had her eight-week-old infant son in a sling with her.  Ms. Scorah is accusing the house manager for Bard on the Beach of discrimination after she was ‘barred’ from attending a Saturday matinee performance. Scorah was told that all families with children under seven years old are “denied entry.” This is in accordance with the Bard's ticketing policy, which states: "In consideration of the actors and other patrons, infants and children under the age of 6 will not be admitted." Scorah is quoted as saying,  “We explained that our breastfeeding infant needs to be with its mother to stay alive, much like a person with special needs may need an oxygen ventilator, or insulin machine, or wheelchair…We strongly feel that this is a violation of human rights and discrimination against breastfeeding mothers.” There is no right to theatre admission.  These claims need to be reserved  for mothers who cannot afford to feed their children.  The mother who never sees her child because the state has removed it may have a claim; as may the child but if Scorah can keep her infant alive by not attending the theatre is that too great a price to pay?  Her claim of a human rights violation is hard to hear as I assume she could afford the tickets. I am not saying she does not have an argument but we need to be careful of the language we use.

Living in the Orchard of Life

Ron van der Eerden is fighting a $29 ticket for not wearing a helmet while riding his bicycle in Vancouver. Mr. Van der Eerden says the law is a violation of the Charter of Rights and Freedoms arguing that being forced to wear a helmet violates his rights concerning life, liberty and security. Mr. Van der Eerden represented himself during a hearing in Vancouver and the case was adjourned until September.  There is no right to ride a bicycle. Though I am an advocate for wearing helmets --they have saved my brain numerous times--I respect Mr. van der Eerden’s right to choose.  He is choosing to live in a city.  He is choosing to ride a bicycle.  He is choosing to break the law of bicycle riding in the city of Vancouver.  He could choose to live somewhere else where there are not rules regarding helmets and bicycle riding.  All of these choices that Mr. van der Eerden has suggest that this is not a rights issue.  The right to life, liberty and security are important.  They protect the right of all people to ride a bike down any street in the country safely.  They ensure that individuals can ride on buses and attend schools.  But there is a certain level of responsibility to the society you choose.  We sometimes forget our obligations within the society and focus only on what is owed us as citizens.  Mr. van der Eerden can not wear a helmet.  But there are costs associated with this and he should accept them.  A rights challenge in the courts should be reserved for violations that restrict his human dignity.

The charge of human rights violations needs to be reserved for times when limitations are forced on individuals that prevent them from riding a bus, practicing a religion or eating on a daily basis. This claim needs to be reserved when the minimal acceptable standard that individuals can demand from those with power over them is infringed. They are needed to ensure people are not denied their basic human necessities.  Using the language of rights violation to maintain our luxury existence is wrong.  There is no right to attend theatre or ride a bicycle or fly in a plane.  We may be uncomfortable or inconvenienced by these rules but we have no right to them.  Using this vocabulary detracts from the people, interest groups and nations that need the world to listen to their plight.  I believe mother’s have a right to breastfeed their children, but there is no right to do it in a private theatre.  I believe people have a right to move and travel, but they do not have a right to fly by plane or to ride bicycles in an unsafe manner. The right to exist with other humans on the planet is the territory of the human rights discourse.  To take that language on to defend our luxuries and minor inconveniences is wrong.  To fight using the tools of the subjugated for non-oppressive situations is taking these tools out of the hands of minorities and subordinated groups for selfish reasons—it dulls the edge of the actual discourse.  I am not against fighting for one’s due.  I only wish people were more careful with there vocabulary.

Encaustics in Indian Country

I have recently begun exploring the world of wax.  I am searching to find a way to add dimension and texture to work my 2D work.  Encaustics has provided some measure of the depth that I am pursuing.  I have tried a number of pieces; some successful, some not.  This piece Wanting and Wandering is now available at Elevation Gallery.
I am very excited about this pursuit because, in October, I will be attending a 3-day workshop by internationally renowned, encaustic artist, Debra Van Tuinen of Seattle, highlighting traditional encaustic techniques. There will be an exhibition, immediately following the course, entirely of encaustic works--those in the course as well as other including Arleigh Wood, Pascale Ouellet and others. Very excited to play in their playground.  Check out the Elevation Gallery Blog which has more information on the class and upcoming shows at:
www.elevation-gallery.blogspot.com