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.
[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.
