Mark Rothko was, in the opinion of many art critics, one of the foremost American artists of the late twentieth century. In fact, except for Jackson Pollock, he is considered by some to be the greatest American artist of the second half of the century.
This would probably surprise the average person unschooled in art, however. Rothko, like Pollock, was an abstract expressionist, and the paintings he created during the last twenty years of his life consisted entirely of large squares, rectangles, or oblongs of one color fading into a similar rectangles or a different-colored background. This can be seen in the titles of many of his works, such as “Orange and Yellow” or “Red, Orange, Tan, and Purple.”
If you’ve ever played the game “Tiles” on the New York Times website when they have the three colors of squares you have to match, it looks like an exhibit of Rothko’s artwork.
When Rothko died in February, 1970, his will was presented to the New York courts to allow his property to be disposed of. His will had been drafted by an accountant named Bernard Reis, who was also named in the will as Rothko’s executor — the person nominated in the will to oversee the disposition of his property.
Rothko left all of his estate to the Mark Rothko Foundation, a charitable institution he had established to take custody of his paintings. Under New York law, however, if someone gives all their property to charity, his relatives are still entitled to claim one-half of the property. Two of Rothko’s children sued, and over the next seven years, Rothko’s estate regularly generated court decisions in the battle between the Rothko family and Bernard Reis.
During the litigation, it came to light that Reis, in addition to being named the executor of the will, was also a director of the Rothko Foundation. Because the will said that all of Rothko’s property was to go to the Foundation, Reis and his fellow directors immediately began disposing of the paintings.
In fact, there was a flurry of activity within a few months after Rothko’s death, and the Foundation sold almost 700 paintings to the Marlborough Gallery, Inc., a New York art gallery. The sale brought in $1 million for the estate, which back in 1970 was still a lot of money.
But there were some oddities about that “profit.” Because Rothko was dead, his work immediately went up in value (because, presumably, he wouldn’t be painting any more of them). One million dollars works out to be only about $1,500 per painting; just four years later a single Rothko canvas sold for $140,000 — and at a time when the art market was doing especially bad. Reis had apparently found a way to make the value of a dead artist’s work go down.
Most troubling, however, is that an estate’s executor is supposed to try to get the maximum return for the estate’s property. Reis’ “bulk sale” brought in a fraction of what the paintings might have brought at an auction, but it gave a bonanza to the Marlborough Gallery. And one of the directors of the Marlborough Gallery was none other than Bernard Reis.
The New York courts eventually found, in some lengthy decisions, that Reis had had a serious conflict of interest throughout the time that he was conducting this fire sale of the Foundation’s assets for a fraction of their full value. Court orders eventually directed that other paintings not be sold, and overturned previous sales of paintings.
And at this point, the case took on a kind of Keystone Kops aspect. The New York Attorney General intervened. Some of the paintings were sold anyway, despite court orders. The court imposed penalties of millions of dollars on Reis, two of his fellow executors, and Marlborough, both for violating their duties as executors and for violating the court’s orders. Eventually, between $15 million and $20 million in art works belonging to the Marlborough Gallery were traced to a warehouse in Toronto, awaiting shipment to Zurich, Switzerland. The Rothko family members now had to begin new court proceedings in Canada to get this property, too.
Still, for all that was uncovered, Reis made one simple mistake. Had the will — which Reis, after all, had drafted — provided that the estate was to go to a “straw man” (such as . . . the Marlborough Gallery) if the charitable gift were set aside, then Rothko’s heirs might have had no basis to go to court. This mistake, though, entitled them to claim their half of the estate, giving them a legal basis to sue in the first place. Without that error, the lawsuits that brought this whole cesspool to light might never have been possible.
Frank Zotter, Jr. is a Ukiah attorney.
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