In federal court in Manhattan on Tuesday afternoon, New York art dealer Jack Tilton, who once represented superstar artist Marlene Dumas, offered multiple revelations regarding a blacklist that the painter has been rumored to maintain, which forbids collectors who resell her work from buying new pieces of art.
In detailed testimony, Tilton explained his knowledge about how the list was administered and revealed prominent names that were on the list, including major collectors (like Richard Cooper and Daniel Holtz), dealers (like Marc Jancou), and David Zwirner, who began representing her in 2008.
On March 29, Miami collector Craig Robins filed an $8 million federal lawsuit against Zwirner, alleging that Zwirner had promised not to reveal that Robins had sold Dumas’ painting Reinhardt’s Daughter in 2004 and later reneged on this, landing Robins on the artist’s blacklist. According to Robins, Zwirner then promised — as a consolation for revealing the sale — to sell Robins works from Dumas’ current exhibition at his gallery, though he later refused to do so. (Robins alleges that Zwirner got his name on Dumas’ blacklist to win favor with the artist as part of his plan to add her to his roster.) The court session at which Tilton appeared was to hear a motion for a preliminary injunction filed by Robins’ legal team, which would prevent Zwirner from selling the Dumas paintings that Robins claims he was promised.
The irony is that Tilton’s testimony, secured via subpoena by the Robins camp — presumably to bear witness to the fact that Zwirner had informed Dumas of Robins’ sale of Reinhardt’s Daughter — suggested that Tilton himself may have actually told Dumas about Robins’ sale of that painting. It also emerged from Tilton’s testimony that Tilton proposed Zwirner’s name be added to the blacklist.
The Operation of the Blacklist
For art-world insiders, the particularly juicy revelations in Tilton’s testimony are the additional names that apparently figured on this blacklist. In questioning by lawyers for Robins and Zwirner, Tilton explained that the list (or lists) was regularly updated by Dumas’ dealers — Galerie Paul Andriesse in Amsterdam, Gallery Koyanagi in Tokyo, Zeno X Gallery in Antwerp, and himself in New York — when they learned that collectors had been actively buying and reselling works.
Tilton admitted that he had recommended several names which were added to the list, including that of New York dealer Marc Jancou, American collector Richard Cooper, and, possibly, Aspen, Colorado–based collector Daniel Holtz (Tilton referred to him as “Danny Holtz”), who is currently on the board of trustees of the Aspen Art Museum. Whether these names currently reside on such a blacklist is unclear from today’s hearing. Perhaps most surprisingly, when questioned by Zwirner’s lawyers, Tilton admitted that he had gotten Zwirner’s name added to the blacklist around March 2005, when the dealer mounted a secondary-market exhibition of Dumas’ work at Zwirner & Wirth, the New York gallery that Zwirner ran jointly with Swiss dealer Iwan Wirth.
Tilton’s testimony and exhibits presented by lawyers on both sides appear to confirm the existence not only of a blacklist barring certain collectors who had resold Dumas works on the secondary market from buying primary market works by her, but also of a somewhat murkier “greylist” which may have come with less restrictive terms. According to Tilton, the lists were treated in the same manner, but it now appears that Dumas’ Amsterdam studio manager Jolie van Leeuwen may have maintained more than one list of collectors.
Dueling Definitions of Confidentiality
Tilton, who represented Dumas from the late 1980s until she left him for Zwirner in 2008, testified that Robins came to him in 2004 with an interest in reselling Reinhardt’s Daughter, which Robins had purchased on the secondary market. The two took it to David Zwirner, who had a ready buyer, and completed the sale, according to Tilton, who said that price and the importance of confidentiality were discussed with Zwirner at that time. Zwirner, according to Tilton, agreed to those conditions. Tilton said that at a certain point after that Robins worried about Zwirner telling someone about the sale, so Tilton “had to reconfirm [with Zwirner in a telephone conversation], and he agreed.”
Confidentiality, Tilton explained to the court, is a “key element” in such transactions, because “collectors don’t want their business known” and “don’t want it in the press.” The limits of the confidentiality of those transactions have become central to the case. While Zwirner’s legal papers have contended that any unstated confidentiality in art deals is expected to last only during the duration of the transaction, Tilton maintained that any sale “should never ever be mentioned, forever.”
On questioning from Robins’ lawyers, Tilton said that he had discussions with Dumas in 2004 about blacklisting because collectors were wrongfully “capitalizing” by selling her work. According to Tilton, he and Dumas’ studio manager Jolie van Leeuwen exchanged e-mails about “who should be put on the blacklist, and who should not be.” One e-mail from van Leeuwen shown in court included the phrase “it’s very important to keep a blacklist updated.” Another e-mail from van Leeuwen, dated December 21, 2004, read, “[T]here must be an option to not sell to the wrong person… I insist on such a list from every gallery.” Tilton told Robins’ lawyer that he provided names for this list but said he never mentioned Robins. Asked whether he provided names at that time because he was fearful of losing Dumas as an artist, Tilton replied, “Partially, and partially to know what’s going on.” Tilton says he withheld Robins’ name because he “bought and resold on the secondary market, so I thought it was different.”
In response to a question from Robins’ lawyer about whether Tilton had concerns about losing Dumas in 2004, when Reinhardt’s Daughter came up for resale by Robins, Tilton said, “As the thing rolled on…prices [were] building up, and people were going after her.” At Zwirner & Wirth, David Zwirner organized a secondary market exhibition of Dumas’ work, in a show entitled “Marlene Dumas: Selected Works,” which from February 18 to April 23, 2005, and included a catalogue essay by Dumas. Tilton says that he realized that Zwirner was competing for Dumas. The show, Tilton says, included Reinhardt’s Daughter, and at the time of the show he received an email from van Leeuwen “saying, ‘Didn’t Craig Robins own this painting at some point?’” Asked by Robins’ lawyers about the nature of this inquiry, Tilton said that the studio wanted to put Robins on the blacklist for selling Reinhardt’s Daughter, and that in a series of e-mails with van Leeuwen, he was “philosophical” about the matter, and asked “was this really necessary?” He added, “Jolie was upset and hysterical that I hadn’t disclaimed to her that Craig Robins owned it before.” He said that among the “several” blacklists that were being circulated, he saw one with Robins’ name on it around that time, told Robins about it, and that Robins, upon being informed that van Leeuwen and Dumas were upset, became “very upset,” himself and “wanted to get litigious toward” Zwirner. Tilton claimed that Robins “wanted to sue” Zwirner, but that Tilton proposed that the parties work through an “alternative solution.”
Zwirner’s Alleged Promise to Robins
Much of this case hinges on a supposed meeting at Zwirner’s gallery in 2005 that, Tilton said, included Robins, Tilton, and Zwirner. According to Tilton, at the meeting, Robins “was upset about the blacklist” and “angry” at Zwirner, who admitted that he’d told Dumas about Robins’ sale of Reinhardt’s Daughter, apologized, and “decided a good solution would be to give [Robins] first choice [after museums]” should he show Dumas in his gallery, and that, according to Tilton, this meant one or more works, since Dumas’ works sometimes consist of multiple pieces.
During questioning from Robins’ lawyers, Tilton said that when Dumas’ studio asked him in an e-mail where Reinhardt’s Daughter was, he did not tell them that Robins had sold it, and that the studio had found this out through Zwirner.
And yet, on cross examination by Zwirner’s lawyer, Tilton admitted that, in an e-mail to Jolie van Leeuwen on March 25, 2005, “it’s implied” that he communicated that Robins had sold Reinhardt’s Daughter due to Robins’ divorce proceedings, and that Robins would be sending Dumas a note about his reasons for selling the painting.
Zwirner’s lawyer pressed Tilton about whether Dumas’ leaving him for Zwirner at the time of her retrospective in 2008 had upset him, and Tilton admitted he hadn’t been happy about it, but he said, “What can you do?” He added that the loss of Dumas didn’t impact him “terribly” financially, since Dumas’ “market exploded after I could make money.” He also questioned Tilton on the issue of Zwirner’s confidentiality agreement with respect to the sale of Reinhardt’s Daughter, and the agreement supposedly made in Zwirner’s gallery in 2005 with respect to selling Robins future works, emphasizing that they had never been documented in writing or recorded, which Tilton admitted was the case; Tilton says he was unable to find notes related to the meeting. Tilton was shown a March 27, 2005 e-mail from Robins to himself — in which Robins makes reference to having “serious concern” and wanting to “clear the air immediately.” Tilton admitted in this e-mail that it “appears” that Robins is explaining that he sold Reinhardt’s Daughter to pay for his divorce. The e-mail also refers to a trip Robins was making to Dumas’ studio on May 7 of that year.
Zwirner and Tilton’s Fight for Dumas
Tilton was also shown a document by Zwirner’s lawyers, apparently displaying the blacklist as well as the so-called “greylist” that was sent to him in 2005. Having established that Tilton had added Zwirner’s name to the blacklist, Zwirner’s lawyer asked Tilton whether he’d done so because he considered Zwirner a rival. “No,” Tilton replied. “It was because if you buy and sell.” He admitted he hadn’t recommended Robins for the same list, even though Robins had sold Reinhardt’s Daughter. Tilton claims his rationale for including Zwirner on the list and not including Robins was that Zwirner was reselling works acquired on the primary market by his Swiss colleague Iwan Wirth, whereas Robins was reselling a work, Reinhardt’s Daughter, that he’d acquired on the secondary market. In questioning from Robins’ lawyer, Tilton was asked if Zwirner had ever gotten upset at Tilton for having been put on the blacklist. “No, I guess not,” was Tilton’s response.
Tilton claimed that, although he still represented Dumas in 2005, he was unable to get primary-market work by her to sell, and was only dealing in secondary-market works by her.
In questioning from the judge, Tilton said that only the artist, to his knowledge, could remove someone from the blacklist, and that a gallery, to his understanding, could not do this. Tilton said that “to [his] memory” he has not advised Robins that he told Jolie that Robins had sold Reinhardt’s Daughter. Asked what the purpose of the meeting at Zwirner’s gallery was, Tilton said “that [Robins] would get first pick after museums,” and, when the judge pointed out that that meeting occurred when Tilton still officially represented Dumas, Tilton responded “Everyone was after her. I didn’t have primary work.” Tilton says the Zwirner meeting took place at the end of March 2005, but says he “[doesn't] remember” whether the meeting took place before or after the March 25 and 27 e-mails brought out by the defense, in which it is implied that Tilton informed Dumas’ studio about Robins’ sale of Reinhardt’s Daughter. The judge pointed to handwriting on the blacklist faxed to Tilton that dated it to March 20, 2005, and while Tilton said he didn’t recognize the handwriting, the judge asked, quite reasonably, if Zwirner’s name was on that blacklist, how could Tilton believe he could get Robins off it. Tilton’s reply? “If he started representing her” he could.
What emerges is a picture of a dealer in the process of losing an artist in 2005, representing her in name only, and with no primary-market work to sell. “You worked your tail off and got very little,” Tilton said of his situation at that time. In 2007, Tilton told Zwirner’s lawyers, he acquires a painting by Dumas called The Invitation, which he was given after having purchased a Philip Guston painting on Dumas’ behalf. Asked whether he could have sold this piece to Robins, Tilton called it “pornographic” and “next to impossible to sell.” Indeed, the work is listed as part of Tilton’s inventory, on Artnet.
Tilton, it emerges from his testimony, has had longtime business relationships with both Robins and Zwirner, both of which could presumably be affected by his involvement in this case. In questioning by Robins’ lawyer, Tilton said his business relationship with Zwirner goes back to when he was the dealer’s “first customer on Greene Street,” which would seem to date it to around 1993, when Zwirner opened his shop in SoHo. There is also the issue of whether the case could affect Tilton’s current business dealings with Zwirner. In questioning from Robins’ lawyer, Tilton said that he still has a business relationship with Zwirner, having consigned two Dumas works to Zwirner and received a commitment from Zwirner to sell two paintings from Dumas’ current show through him, including one to a client who is giving it to the Museum of Modern Art. Tilton claimed that the total of all of this business would be “north of $6 million.”
Judge William H. Pauley III, who has presided over the case, promised to “try to issue something quickly,” but he also put the art world’s worries in perspective. “I thought this would be 45 minutes, and now it’s going on two hours,” he told the court room. “It’s been a long day and I have a murder trial going on. Multiple murders.”
— Sarah Douglas