Death of an artist

Dear Artist, 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?”

“Space Odyssey #14”
oil painting
by Ellsworth Ausby

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:

“Space Odyssey #6”
oil painting
by Ellsworth Ausby

— 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.

“Space Odyssey #4”
oil painting
by Ellsworth Ausby

Best regards, Robert 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.’ ”   Estate planning by Jackie Knott, Fischer, TX, USA  

“Don Siratt”
oil painting
by Jackie Knott

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  

original painting
by Betsy Bauer

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  

“Kevin is the Man”
acrylic painting
by Charles Peck

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 by Eric   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. There is 1 comment for New world class museum by Jo Bain
From: Dottie Dracos — Apr 27, 2011

The Crystal Bridges site is interesting, but it has a lot of bad links and bugs that need to be taken care of to be considered a respectable site.

  No loss of sleep by Rick Rotante, Tujunga, CA, USA  

“Bathe in Blue”
oil painting
by Rick Rotante

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.         There is 1 comment for No loss of sleep by Rick Rotante
From: Jeffrey J. Boron — Apr 15, 2011

Fortunately you won’t be part of the voting on that one Rick, it will be left to others who may very well be better judges. Course how we do our job in the meantime will probably have some effect on how the voting goes. Keep up good work! Jeffrey

  Archiving worth the effort by Joe Hutchinson, Santa Fe, NM, USA  

“Sunset Nocturne – Jon’s Bridge”
oil painting, 40 x 40 inches
by Joe Hutchinson

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. There are 3 comments for Archiving worth the effort by Joe Hutchinson
From: Deby — Apr 14, 2011

Your artwork is just amazing.

From: Anonymous — Apr 18, 2011

I agree. Love it.

From: Sheila Minifie — Apr 18, 2011

Not Anonymous…I forgot to put my name in! :D

  Advice from attorneys by Francesca Owens, Spoleto, Italy  

“Tiger flash”
watercolour, 18 x 14 inches
by Francesca Owens

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. There are 2 comments for Advice from attorneys by Francesca Owens
From: Marney Ward — Apr 14, 2011

Love the tiger, especially the way the cool background colours are worked into the lower part of the tiger, very impressive play of warm against cool for emphasis on the face of the tiger, who truly is “burning bright.”

From: LD Tennessee — Apr 16, 2011

O my, that tiger is amazing! Love everything about it :)

  Don’t forget copyrights by oliver, TX, USA  

mixed media
by oliver

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.    

Archived Comments

Enjoy the past comments below for Death of an artist

From: Gavin Logan — Apr 11, 2011

From: Susan Holland — Apr 11, 2011

What a thoughtful response to the widow of Ellsworth Ausby, Robert. And the counsel you give her about being unrushed, cautious with galleries, and selective about art-canny legal advisors is good for all artists and families of artists to know. Thank you.

From: Charles Peck — Apr 12, 2011
From: Eric — Apr 12, 2011
From: Alyson Stanfield — Apr 12, 2011

I very much appreciate your addressing this topic. I have had numerous queries from people in the same position as Mrs. Ausby.

I wonder: How difficult is it to get postmortem gallery representation? Seems like it would be next to impossible – unless there was a strong gallery track record throughout the artist’s life.
From: Jackie Knott — Apr 12, 2011
From: vancleve — Apr 12, 2011

I can recommend a gallery that might be interested in the paintings. Please contact me at

From: Fred Kelving — Apr 13, 2011

As difficult as it sometimes will be, I think that someone who is leaving behind considerable assets– and I’m going to include an inventory of paintings, should there be thought to be some significant commercial value– should do his heirs and assigns a favor and have planning in place. At very least, leave sufficient information that those who remain know where to begin. Personally, I like the final part of the wilderness sojourners saying, “…leave only tracks.” To do that, I think the artist with family should travel light, and dispose of as much as possible, as soon as possible. If you have to leave something– or want to– try to make certain it’s easily fungable, else you leave a further burden.

From: Dreamwalker — Apr 13, 2011

I am in a wonderful position, as both painter and art consultant for a new adult community soon to be built in Arizona, to fill the community center with all original art. I am determined to do this. My hope is to let the real energy of fresh work create an aesthetic and educational space. My budget is limited, in the light of the exclusivity of gallery art but I will make it work!

On that note, I am wanting to investigate the possibility of purchasing one of Ellsworth’s pieces. How do I do this. With many thanks for you continued inspiring support of the arts, Dreamwalker studio dreamwalker
From: Mary (Yurkutat) Weatherwax — Apr 13, 2011

Your Twice-Weekly is greatly appreciated. Thank you for taking the time to share it with us artists. Keep up the great work.

From: Eugene Kovacs — Apr 13, 2011

Today in our time to be an artist has no value and you are not even recognized as a person. It is not easy to be a teacher, because you cannot even live on that. Personally, I am with painters who have a long experience in painting and for the first time I can sell my paintings. Furthermore, it is for me a therapy and a pleasure.

From: Anonymous — Apr 13, 2011

An artist without a sales provenance is very difficult for a dealer to launch and build. The prestige of a fine public institution or modern museum counts for little, especially these days where so much work is in and out of fashion, taken down and put up only occasionally for retrospectives, etc. I’m a dealer and I feel sorry for those often excellent artists and their heirs who have never built a client base through effective commercial dealers. The amazing thing is that such work is often priced very high–beyond what a dealer would legitimately start it at.

From: Arthur Leeming — Apr 14, 2011

Interesting that, in Mr Thornton’s case, the sending of recommendations was important. Unfortunately, art is not something you can readily recommend. It is something that individuals, when they see art with their eyes, rings a bell in their sensibilities. However brilliant, or however flat, it just rings. Getting work in front of people is far more valuable than writing or receiving recommendations.

From: Tyler Noon — Apr 14, 2011

Whaddaya gonna say, “Herb Smirch is a great guy?”

From: Anonymous — Apr 14, 2011

I am also a gallery owner who sometimes deals in the work of recently passed painters. Estates need not now make the mistakes that a lot of them do. One is to withdraw all work from galleries at the time of death. This is not a good idea as continuity is more important. Prices can change, but not greatly. Another big mistake is when widows and heirs flood the galleries and auctions with a pile of work, often of poorer or dated quality. When this flooding persists, the long term maintenance of prices may be endangered. The slow, steady distribution of a passed artist’s work is the best way to go. The market can only take so many works.

From: Katherine Tyrrell — Apr 19, 2011
From: Jamillah Jennings — Feb 14, 2013
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oil painting, 12 x 16 inches by Elsie Kilguss, North Kingstown, RI, USA

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