Yesterday, Jamillah Ausby of Brooklyn, New York wrote, “My husband, the abstract artist Ellsworth Ausby, passed on March 6th. I have a lot of his art which I would love to sell. He wanted exhibitions in Europe, Africa, and all around the world. His one request was to divide the money between his three daughters and son. I plan to clean out his studio, take photos, set up a web site and hopefully I’ll find a dealer or a gallery to sell his work. What do you suggest?”
Thanks, Jamillah. Ellsworth’s work explored the relationship of man and the universe. He was also a popular art instructor with a BFA from Pratt. His paintings were exhibited at the Whitney Museum of American Art; the Boston Museum of Fine Art; the National Museum of Fine Arts, Lagos Nigeria; The Aldrich Museum of Contemporary Art in Connecticut and the State Museum of New Jersey. He is listed in Who’s Who in America, Who’s Who in American Art and Who’s Who Among Black Americans.
Jamillah’s situation is similar to many artists’ beneficiaries when the main thrust of the life’s work was in academia. Their credentials may be great, but their prior interaction with the commercial gallery system may be limited. Often, it’s difficult to understand that dealers are not necessarily looking for depth or creativity. They’re looking for marketability. This often includes:
— A large and consistent opus of the artist’s work.
— A degree of exclusive access to the work for a period of time.
— The potential of higher and higher prices.
This often means that your new dealer would like to take control of the work. To this end he might try to buy or option it all. If the amounts of money are significant, I suggest you get a lawyer with knowledge of the shenanigans of the art world. A cautious art executor should read The Legacy of Mark Rothko by Lee Seldes.
Further, your idea of putting up a memorial website — heavy on Ellsworth’s story and passion, light on commercial considerations — will keep his flame burning bright. The memorial website is the statue of the 21st Century.
Take your time. Send out letters to prospective dealers and refer them to the website. Ask their advice and opinion. In the event that none show interest, archive the work in a clean, dry environment. Further fame and acceptance may become the task of another generation.
PS: “Full lasting is the song, though he, the singer, passes.” (George Meredith)
Esoterica: On hearing of Ellsworth’s death, Andrew Thornton, a former student of his wrote, “Professor Ausby was my first painting teacher at The School of Visual Arts. I spent many hours in the studio with him, learning about cast shadows, mixing paint, and ‘Ausby’s Black’ (a rich shade of black made with alizarin crimson and phthalo green). We kept in contact. He wrote countless recommendation letters for me. Finally he gave me a stack of twenty signed letters with the recipient line left blank. He said, ‘Thornton, don’t use ’em all up in a week.’ ”
by Jackie Knott, Fischer, TX, USA
Specific estate planning is one of the greatest kindnesses we can do for our families, part of which is the art we leave behind. Having seen heirs exploited in the past, this family will want to approach any plans cautiously. You can’t undo an uninformed or poorly advised decision. Legal considerations must be part of the decision process. One consideration beyond his works is Mr. Ausby’s studio and materials. Maybe a museum would be interested in preserving his studio intact? Donate his materials and supplies to art students where he taught? To me Mr. Ausby’s style translates particularly well to his public work, particularly his Metropolitan Transportation Authority station platform art in New York City. What a fine thing to leave to the city in which he worked.
Invest in your legacy
by Betsy Bauer, Santa Fe, NM, USA
My college painting teacher once advised me when I got older, if the funds were there, to think about providing money for your art to live on after your death. She did not have children and had taken a life insurance policy out that stated the money would be used to maintain and preserve her art and legacy as an artist. Even if people are not the Andy Warhols of the world, it’s still possible to set up a simple plan regarding an artist’s work.
Everybody needs a Johanna
by Charles Peck, Punta Gorda, Florida, USA
This is a common problem here in south Florida. Quite a few retired folks who have been painters much of their lives and often with little or no recognition. Their children find they now have hundreds of paintings to deal with. Funny thing is that one of the shining stars of painting that I credit with founding one of the main streams of modern Art (and meaningful use of the brush stroke as a vehicle of communication), Expressionism, only is known to us by the 10-year effort of his sister-in-law — Johanna van Gogh — to get his work known and she had several things working in her favor not the least of which was an inside track on both knowledge and connections with dealers. The key is still persistence and focused effort.
Story needs a happy ending
Besides The Legacy of Mark Rothko by Lee Seldes, I’d also recommend reading Matisse – Father and Son by John Russell. The lessons of the Matisse book are similar to those of the Rothko book, though a bit more subtle. In both books one comes away with the sense of the necessary evil art dealers can represent. Many of the same elements of dependency and exploitation seen in the pimp-prostitute relationship are inherent in the artist-gallery/dealer relationship. I’m fully aware of the benefit to the artist in having a strong gallery representation, but an artist will always be at risk if he or she believes a gallery operates on the basis of altruism or philanthropic motives. With few exceptions, art dealers rarely place the interests of the artist before the base goal of gallery profits. Good luck to Mrs. Ausby. My fondest hope is that some day we might read a book called “The Legacy of Ellsworth Ausby” and find it has a truly happy ending.
New world class museum
by Jo Bain, Bella Vista, AR, USA
The widow of the east coast painter Ellsworth Ausby might want to contact Crystal Bridges Museum of American Art here in Northwest Arkansas. The daughter of Sam Walton of “Wal-Mart” fame, Alice Walton, is building a world class museum. Check out the site, as you will be hearing much in the future, providing you are not already aware of this museum nearing completion in Bentonville, Arkansas. Many of my artist friends are taking classes to be docents. American Art and Artists are featured. Alice Walton has already acquired some fabulous works. The opening is scheduled for 11/11/11.
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No loss of sleep
by Rick Rotante, Tujunga, CA, USA
Many worthwhile artists will come and go without recognition in their respective lifetimes. I feel I will fall within this category knowing what I know about the business of art and how little I enjoy playing “the game.” I’ve told my wife, upon my death, to burn everything I didn’t sign and to give away anything else she can’t sell. Unless you reach enormous fame in your lifetime, posterity will care little for your contribution. It’s a sad realization that no longer causes me loss of sleep.
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Archiving worth the effort
by Joe Hutchinson, Santa Fe, NM, USA
That was good advice that you gave to Mrs. Ausby regarding her husband’s art archive. It reminded me of a recent conversation that I had regarding the estate of a former student of mine, Janet Brooks Gerloff. She became an ex-pat and lived in Germany and developed an exceptional creative career prior to her death. This month she would have been 64 years young if cancer hadn’t cut her down.
Her family is storing a number of paintings and drawings and doesn’t know how to proceed with the estate. I forwarded your letter. Estates bring up additional problems and artists should be aware that, when they die, they put tremendous burdens on their family to straighten out problems left behind in the studio. As well, inheriting art work can also be expensive (in some cases, taxable) so records are important and a digital file will help.
I have evaluated art estates before and have come to the conclusion that artists don’t keep good records of their work.
Rule 1) Maintain one’s art records with digital photography. Once photographed, the art can be stored on a computer or CD-ROM’s according to date, subject, et al. It is also a great resource for developing one’s web site. The photography part is a breeze, take the art outside in the sunlight and take a picture. Expensive setups are not needed.
2) Hire or ask a knowledgeable person to evaluate each piece to get an idea of its worth. It should be done with the original work.
3) A record should include: the title, medium, size, and date completed.
4) A digital photo is also a good way to record the individual piece and any additional information should be added: (collection of —; exhibited at —-; included in a catalog; retail price, if available; and any notes).
5) The record should be dated and signed by the evaluator.
6) Make copies for everyone involved. (For inheritance tax records I recommend evaluated the work at a low, rather than a high value.)
It is worth the effort — the value of any work is increased by its provenance.
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Advice from attorneys
by Francesca Owens, Spoleto, Italy
First I send my thoughts to Ellsworth’s family. I want to share what I am in the process of dealing with my own legacy. I have been working on setting up a non-profit organization to be the vehicle to hold my art activity during my life, after my passing and hopeful for my artist legacy.
One of the problems is the family sells the art for almost nothing and then, after in time the prices grow without the family being involved. I have 2 daughters and possibly a sister’s daughter who I want to be involved in my art legacy.
This is the feedback I received from attorneys and business professionals:
1) Create the non-profit with a thorough enough scope to grow bigger later. Going back and changing your objectives later is near impossible so be thorough for the non-profit vision to have levels.
2) Have the original pieces continue to be owned by the family in some contract form. Then lease to the non-profit the permission to use for free the exhibition and possibly the resale of limited edition reprints for the benefit of the non-profit.
3) By keeping the ownership of the originals outside the non-profit, ownership is maintained by the family.
4) Don’t break up the exhibition by selling it. It can be of more value as a traveling exhibition. There is a serious challenge going on with museums and their budget. They usually want a really expensive exhibition but can’t afford it, unless they crimp on other less expensive exhibitions.
5) This became an opportunity for talented artists. If you package your exhibition correctly, numerous places across the country will pay to rent it at a very affordable price. The proceeds go back into the not-for-profit to grow the non-profit.
6) The images of your art can be placed on trinkets for sale at these exhibitions. Meanwhile the originals are under the family’s control.
7) A couple of closing thoughts… did the artist want to leave an art legacy? Do you have a family friend or family member who wants to invest emotional with passion needed for this plan to work? Can the family members wait for gains years and accept not reaping the benefits now? Can the heirs get along to make this work?
In my opinion, Ellsworth’s images are very marketable. I live in Italy in an apartment above the famous deceased artist Sol Lewitt’s continuing art studio. A crew from Holland showed up this week to film a movie about his life.
Sol Lewitt passed the 8th of April 2007 and the filming began last week. They are filming his study for this documentary. Based on this, I would suggest to his wife to get some film people in there when she is ready to start documenting his life’s story. Call in some local camera people and newspaper when she is ready.
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Don’t forget copyrights
by oliver, TX, USA
There may also be more than a little value in the copyrights of the work. These rights last many years after the death of the artist — in the United States the length of time is 70 years if created after 1978. Copyrights of course govern things like books, catalogs, giclee’s, posters, t-shirts, postcards and jigsaw puzzles, etc. Copyright forms once the work is done (term of art fixed in a tangible medium of expression — so even notes and drawings immediately get a copyright).
With respect to reproduction rights, long term royalties are perhaps a good way to go and these are easily and presumptively divided from the “original” painting. The best thing you can do here is get really good master photographs of the work suitable for reproduction uses, and though perhaps better to clarify though most may argue unnecessary that the copyrights are not included with the painting. Though some may argue that the rights are separate and that you can demand access for some reproduction, actually getting access can be problematic and sometimes expensive, though it is true, most owners will be happy to do so because the reality is such reproduction can and usually does increase the value of the original.
From what this posting informs and depending on how exactly the request was made to have the value of the art divided between his children, it is possible that he created a trust. This is perhaps the easiest legal entity to create and it would be very prudent to gain a little more understanding of this possible aspect. “His one request was to divide the money between his three daughters and son.” Was this formal, was this make sure you are taken care of as wife first, but to leave as much to my children equally as possible, was it formal or private talk between husband and wife? There are lots of specialty rules in various jurisdictions on estates etc., but it sounds like the writer of this post is trying to do the best in this regard. That said, if you believe there was a trust created or honor bound to create such a trust you may wish to create a more formal document that all your children and you agree is appropriate since given the post instructions in this regard may not have been as clear as would have been optimal.
To the extent possible and legal, you may also want to have some sort of agreement with a primary dealer or broker on the timing of release of the art works or right of first refusal to be the primary dealer. Remember, as owner or as trustee you may have broad discretion on when to sell the works and if too many works come on the market at the same time it may depress the prices. But of course you have storage and maintenance to consider while you hold and enjoy the works and there may be other considerations in your overall situation.
It is a difficult time and at the time of the death of a loved one or spouse can be both emotionally and financially difficult and expensive. Estates and grieving can sometimes take a while so unless there is a real pressing need go slow on making final decisions and my best suggestion is to get good legal advice from someone knowledgeable in the area. Remember, too, the pieces you like now may not be the ones you remember later and may not be from the style or period that the market decides is best. Really evaluate the need for those good photographs. They can be expensive up front but can be helpful down the road — and will be good for the website if you step down (and you will want to for performance reasons on the web). Most attorneys will give a little time on an initial consultation for free — spend a little time and gather some opinions. Find someone you like and take their advice, talk to whomever you are having help with all of the other estate matters and ask if they feel comfortable in advising or would like to get additional help and information. You may be also clarifying title to house, retirement funds, clearing up credit cards, phone bills, mortgages etc. and very routine estate items. Copyrights can be a little different, trusts are a little more common, but can sometimes be missed. Robert, of course, gave some good advice on the pragmatics of dealers, storage and etc. Sympathy on the loss. Hope this was helpful. Incidentally, I’m an inactive copyright attorney, now an artist.
Perfect day – Narragansett
oil painting 12 x 16 inches
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