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The triple order of lime, pineapple, and cherry Jell-O should have been a tip-off. I met my art dealer at 11:30pm on a sultry spring night at a diner on the corner of 23rd and Ninth Avenue. He arrived two hours late, oblivious to the barrage of voicemails I had left. With a wide grin of bad teeth, he plopped down in the booth and ordered three orders of Jell-O: red, yellow, and green, with extra whipped cream. What grown man eats mountains of Jell-O late at night? In between slurps he painted a glorious picture of our future together. He really “got” my work and together we would “kill the art world!” I should have realized that something here was more than odd.

But let me rewind: In the fall of 2005 the Marco-Munro Gallery approached me. (These names have been changed.) The gallery was brand new on the scene, ready to make a splash and plan a fundraising event for the building of a museum devoted to contemporary ceramics. Would I donate a piece of my sculpture? All profit would go to the museum, and, by the way, I would be given a solo show the following June. It was an offer I couldn’t refuse. I had been showing with Spike Gallery in Chelsea, which had closed its doors, so the timing was a dream come true.

The fundraising event was very well attended. Many collectors were there as well as curators and other artists I knew. My piece sold, as did most of the work in the gallery. Everyone was thrilled. These guys were on a roll, and I was in on the ground floor.

How one “gets into” the New York City art world is akin to “a riddle wrapped in a mystery inside an enigma.” A combination of who you know, where you went to school, who you fuck, what the flavor of the week is, and, oh, yeah, maybe the quality of the work, all seem to be part of the process. Rarely does a relationship between dealer and artist happen as quickly as this did. But magic sometimes strikes, and being told that your work is great is a potent bit of seduction.

Melissa Stern, “Another Marriage” (2008), clay, oil paint, acrylic oil stick, 16 x 12 x 5 inches (image courtesy the artist) (click to enlarge)

Fast forward to June. The gallery was planning to host a booth at the Sculpture, Objects, Functional Art and Design fair (SOFA) and asked me if I wanted to participate. But of course! The only hitch was, well, there were a few: I had to prepare a sketchbook of drawings of my artistic process. When I explained that I didn’t work that way they told me to “fake it.” The gallery also had a vision for how to display my work — in a theatrical manner. “Installation art,” the gallery owners explained, was the way they envisioned my future. OK. When I arrived at SOFA my sculptures were arranged in a puppet theater setting, with heavy brown velvet curtains surrounding them. The entire booth was in disarray. Confused and angry artists were installing their work in an environment of utter chaos.

I was embarrassed by how my work was exhibited, but the art fair was underway, and I decided to just go with it. The entire booth was a mess. The dealers seemed intent on spreading madness. They hired scantily clad gals to walk around the show and surreptitiously put red sale dots on objects in other dealer’s booths. This did not win them any friends. The fun was just beginning. There was a fistfight, the police were called, and other gallerists requested that the booth be shut down.

At the same time, my long-awaited solo show was up in the gallery, and Dan Munro had arranged to have a group from the Museum of Art and Design to come see the show, and he (Dan) would talk about my work. He was weirdly overanimated as we shared a cab downtown, asked me to pay for the cab, and then asked me if I had $95 to pay for the sushi meal he had arranged to have brought in to the gallery. When I told him I didn’t have the cash, he hysterically called his partner and had a screaming phone fight with him while the cab driver and I Iooked on in horror. This was the man in whose hands I had entrusted my art career.

A few days later I brought my 10-year-old son to the gallery to see my show. Dan was entering the building at the same time as us. He thrust a sleeping bag into my son’s arms instructing him to carry it into gallery. He had some clothes, a clock radio whose cord was trailing behind him on the ground, and a toothbrush. He was moving into the gallery to live. I began to suspect that we might not be “killing the art world” together.

In the middle of July I got a call late one night from an intern at the gallery. She said the dealers were coming with a truck in two days to move all of the work out of the gallery and take it to a warehouse in Connecticut. Quick, she said, get your work the hell out of here or you may never see it again. When I ran over to the gallery, the intern nervously let me in — her bosses were out for an all-afternoon lunch, she said. While I was there I noticed my piece that had been “sold” at the fundraiser the previous fall. It was in a box, addressed to a well-known collector and shoved in the corner. I grabbed it along with the rest of my work and ran. I found out subsequently that the gallery had never delivered the money to the museum either. I called an artist friend in DC, Tim Tate, who was also represented by the same gallery, and told him the news. He jumped in a car the next day and drove to New York to rescue his work. It was he who tipped me off to the fact that an insatiable desire for sweets, as well a penchant for dental problems were characteristics of meth heads. Hmmm, Jell-O.

Melissa Stern, “UP” (2007), clay, encaustic, ink, 14 x 15 x 3.5 inches (image courtesy the artist)

I called and emailed the gallery repeatedly. Promises to pay, promises to pay yesterday, the check was in the mail, the check would be in the mail. Once the gallery smoothed over this little inconsequential blip, there were heart-to-heart conversations about our future together. The owners gave me the names of all the people who bought my work, and asked if I could please send them my bio and a thank you note.  I began to keep notes of every conversation.

Weeks later, the New York City Marshall chained the gallery doors shut. The phone was cut off. No emails were answered. I delivered my sculpture to the sweet collector who never called to inquire about her piece. She didn’t want to cause trouble with the boys.

I called several of the other artists who were owed money and suggested that we sue the gallery. They scoffed at me. Not worth it. We’ll never win. Apathy, cynicism, resignation. I was told repeatedly, “This is the way the art world works.” I was depressed and felt betrayed on many levels. I needed closure, and I needed justice. So I picked myself up and went to the small claims Court of Manhattan to file a lawsuit. As I explained my story, slightly breathless and emotional, to a seasoned and jaded court worker, she raised one eyebrow and asked, “Are you going to sue him or sue the business?” She continued, “You sue the business, he closes it, you got nothing. I’ll give you two lawsuits for a $40 filing fee. Sue the business and sue his personal ass.”

And so I did.  An ironic side note — in all my years as an artist this was the one and only gallery that had insisted on having a written contract. Thank you very much, I said, as I produced every piece of paper that ever passed between the gallery and me for the court. No one from the gallery showed up.

I received the judgment in the mail a few days later. I won! Did I ever get my money? Nope, not a cent. But I won in other ways. First, the legal owner’s name is on file as having an unpaid legal judgment against him. Should he ever try and take out a loan, buy a house, or start a new business, this would be the first thing a bank officer would see. Karma will bite him in the ass — perhaps a worldwide Jell-O shortage.

There was also enormous liberation in feeling like I had done something to fight back. Artists get ripped off all the time. If you’re blue chip, you hire a lawyer. Maybe it makes the news for a nanosecond. The lawyers always come out just fine. Among artists, these sorts of tales pour out — though no one wants to be quoted for fear of making enemies. Some of these stories are big money scams, which you may occasionally see in the press. But most are small, and not considered newsworthy. The phrase I heard most often was “kiting.” A gallery flies its “kite” on the money made from sales and not paid to the artists. It’s shockingly commonplace.

But then came the proverbial cherry on top. Weeks after my formal judgment, the producers of Judge Judy called to ask if I want to audition for the show. The defendant, then presumably living on somebody’s floor, would of course have to show up, and we would be “encouraged to let our hair down and make for good TV.” We would both get paid to scream at one another. The nonbinding, kangaroo-court judgment itself would be paid by the producers. I have to admit I was tempted; it could have been a dynamite performance piece. But in the end I decided that my interests remained in sculpture, not performance art. My victory in court was filling enough — I decided to skip dessert.

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Melissa Stern

Melissa Stern is an artist, writer, curator and anthropologist living in NYC. As an artist she works at the intersection of story- telling, drawing and objects. As a writer she is focused on the collision...

28 replies on “From Jell-O Shots to Money Scams, an Artist’s Account of Suing Her Gallery”

  1. Awesome, compelling, and extremely well-told story, Melissa Stern. I enjoyed seeing your sculptures as well as reading your tale. Clearly the art work is strong enough to rise above the madness of your former gallery.

  2. Meth? Not even enough $$ for cocaine? Red flag! I wonder if the “warehouse in CT was a storage unit they would have quit paying for, or Mom’s garage? (Gotta love that intern). I thought I was in a similar situation last winter, though with a very legit person with a long track record, but I actually eventually got the check and ran as fast as I could to the bank. It was good!!! My next step would have been small claims court, but it was a different state and the filing claim was a couple hundred bucks. There are people I know that got screwed so bad by one huge dealer in a southern city that I shall not mention where it got so bad that one sculptor actually drove down from NY to have the dealer arrested for theft-all caught by local news cameras, and when that didn’t work, the police special task force for fraud went in and grabbed hard drives and filing cabinets, all caught on film by the news station out it’s window from across the street. Is he still in biz! Yup- though in a different location in the same city. The artists I knew settled out of court. (his new stable of artists are largely from overseas….hmmmm…) Glad you had contracts and documented. Artists- always have your own thumbnailed and inventoried delivery forms in duplicate that you get those dealers to sign in addition to their own. If they don’t hand you a delivery inventory form, worry and watch more.

  3. We may not like to admit it, but art – if exhibited in public by an artist who lacks the safety net of personal or family wealth – is a business. And the golden rule of business is no different for artists than it is for anyone else. The rule is that you must know clearly and unambiguously what is being exchanged for what. Your work is an asset. A promise, or a chance at anything is not an asset. It has no worth. Trade your work for a promise, or a chance, or a possibility and you will get screwed about 99% of the time.

    1. There are scam artists in every field of business. Sometimes even the savviest of “investors” get taken….I would posit that the nature of the art business is quite a bit different than other fields and unfortunately artists are easy marks.

      1. I have to agree…but savvy investors only get taken when they think they’re shrewdly gaining an edge over someone else, or in other words, they’re trying too hard to be successful. When you were told to fake the sketchbook it was time to move on. Art requires a more nuanced definition of success. Best book on the subject: Lewis Hyde’s The Gift. Preview: its not about money. It won’t help you make money with your art, but it will help you feel better about the profession you’ve chosen.

    2. The art market is radically different from any other.

      It is unregulated and sales are done in secret. No artist has the right, in NYC, to know who buys their work from the gallery seling it. This means the gallery can charge twice what the artist agreed to, and pay the artist 1/4 retail rather than 1/2. In numbers, a gallery can sell Collector X a piece of yours for $20K and give you $5, with no paper trace of theft.

      The only way I caught my gallery stealing from me is by asking the right people the right questions. I conned the gallery into giving me proof of the transaction then settled out of court for twice what they owe me.

      For artists who want a great book on contracts:
      http://www.amazon.com/Legal-Guide-Visual-Artist-Crawford/dp/1581150032

    3. sad, but true…until it is sold, a piece of your own work is only worth the materials used to create it.

  4. I had a similar problem with a DC gallery a few years back: it took 2 lawyers, a little cash and some work but I won a judgment. Fortunately, I had drafted my own contracts and made sure the gallery signed them. For all frustrated artists out there I recommend going through this process. If you do win a judgement you can get your money or at least some of it. We filed a lien on this gallerista’s bank account and I was able to score $6,000 when she deposited a check. There are lots of good organizations in metropolitan areas that do help artists – Washington Lawyers for the Arts helped me.

  5. It’s refreshing to work with people who don’t make you remind them of the contract, much less have to enforce it. Sadly, a lot of people in all industries, not just art, practice the business model of “Whatever we can get away with.” There are so many desperate artists or those just starting out, that scammers always have a fresh crop of victims.

    Also, I’d love for artists to post a link (or name names or case numbers), when there is a court record, which are public records, not defamation. It would greatly help others to avoid the scammers.

      1. BTW not implying you were desperate or a newbie; your art is beyond that phase obviously! Just saying, new artists are especially vulnerable. It really helps if the scammers come up on a search, when anyone does research a name/gallery before signing on.

        1. New artists also have to realize that if they expect to make a living selling their art to the public that they are business people engaged in commerce. Unless they can find a patron saint to watch over them, they really need to understand their contracts and how to negotiate them.

          1. You are correct, Jim Wiggin. However, when working with people who are addicts, professional scammers or simply incompetent business people a contract isn’t going help you too much, no matter how well negotiated. There’s alot hindsight advice in these comments that is all well and worthy. It’s of course easier to state what artists should and shouldn’t do, either in hindsight or if you’re on the outside looking in. My intent in writing this piece was to try and start a public dialogue about something that is rampant in this industry. Not to publicly shame or call people out, but to lift the veil, if you will, on a real and ongoing problem. Within hours of Hyperallergic posting this article I received a flood of emails from people, most of whom I did not know telling me their own tales of hell. Are all these people bad negotiators, naive, flaky artists, or overly success driven? I think not.

          2. Hope I didn’t insult anybody, Melissa. In any area of commerce we would all like to think we could just rely on other people’s good faith and handshake deals, but commerce is commerce and it’s a dog-eat-dog world. They may be predators in the gallery/art dealer world. I suppose were I a predator I would view NYC as a happy hunting ground. But I would hazard a guess there is a fairly high failure rate among gallery start-ups and that a fair number of completely well-intentioned gallery owners end up hurting others financially. I’m not meaning to call anybody “flaky” but there is often a countercultural feel to artistic communities that we’re all on in it for something more than the money and that everybody is operating with the same degree of good faith. I just think that everybody is better off realizing (unless as I said they have a patron) that they are involved in commercial transactions and be on guard. Restaurant operations are similar in a way. You may know that new restaurants have the highest failure rate of any new businesses (well, so I believe). That is due in large part to owners who have been involved in the business as chefs or cooks but don’t really know anything about the business of running a restaurant. They may set up an operation that appears on the surface to be doing quite well, but if they don’t have their costs under control they could be losing more money with every additional meal they serve. Then the wait staff, busboys, dishwashers and bartenders are all surprised when the pay checks start bouncing and the place closes without notice. Galleries may be similar, I don’t know. But ultimately it is every woman for herself.

          3. No insult taken, Jim. I appreciate your caring enough to think and write about this. I was hoping to open a dialogue- mission accomplished.

  6. “I called several of the other artists who were owed money and suggested that we sue the gallery. They scoffed at me. Not worth it. We’ll never win. Apathy, cynicism, resignation. I was told repeatedly, “This is the way the art world works.” I was depressed and felt betrayed on many levels.”

    Precisely. It continues only because the real sorry artists (if you can call them that) are afraid “it might ruin their chances” or “people might think I’m a troublemaker”.
    Where is the Art Dealers Association of America in this? Why aren’t they policing their own profession?

    1. Bill, art dealers are not professionals in the legal sense, meaning they are not educated, trained and licensed under the auspices of a professional standards board which maintains and enforces the standards with legal consequences (i.e., like lawyers, doctors, accountants). The Art Dealers Association of America is essentially a trade association which serves primarily as a lobbying group for its members interests. It does have a Code of Ethics by which members are required to abide, but the worst consequence of violating the Code is expulsion from the ADAA. I suppose in a civil suit against a member dealer by an artist the Code could be used as evidence to establish a standard of care or could be incorporated into the dealer contract. I’m guessing these guys never paid their dues and were not members anyway.

  7. Wow, what a cautionary tale! And, I understand your reluctance to go on Judge Judy, bit I would’ve looooved to have seen her rip the former gallery owner to shreds.

  8. the only queasy experience I’ve had in 30 years as a painter, was with a gallery in Laguna Beach, CA. During a brief period when my paintings were there, I was pressured into selling one at a discount. I found this extremely annoying, and wrote them a letter, and got my work shipped back to me. I was communicating with the gallery assistant and found out that I should get in touch with the woman who did their bookkeeping, because apparently things were a little rocky. I called, got my name at the top of the list of creditors/artists to pay and dodged a bullet. They closed a few months later, after being in business for years.
    Moral of the story- make friends with the interns/assistants because they know what’s happening behind the desk, and might even be aspiring artists themselves.

    Bless the intern that tipped Melissa off to come get her work out of there!

  9. I’ve had my work stolen twice by dealers. One by the well known thief Harry (Stendahl Gallery). While some folks were able to recuperate their work (Jonas Mekas) most were not. Why would he want to keep my work? I’ve called many times (this is more than 20 years old)… everyone knows he’s a thief. Perhaps this is the guy?

    The other story is strange – a gallery in Sag Harbor. Sent the work, it was on view. Who knows if anything sold. I inquired some time after the show closed, found out the gallery closed closed, was told by the fellow/dealer who asked me to show, to call this woman in Sag Harbor. She had apparently taken over the gallery. I did call. Got her. Asked about my works. She screamed at me and told me I owed her hundreds of dollars in storage fees she was trying to reach me for months. Really? My name and address and e mail is stamped on every work of art I produce. I am easier to find than the sky.

    There are other stories, but not worth repeating. What is worth repeating is: Be as clear with your dealer as you are with your doctor – and get it in writing.

    I really don’t get it. Appreciate your story, Melissa Stern. Maybe some dealers will start to behave? Hmmm. Doubt it.

  10. Similar incident with a gallery. They showed my work for several years, had great success selling my work, getting me corporate commissions, museum shows, etc.; but things were taking a downturn when the gallery’s landlord raised the rent in this up and coming area. After one solo show, payment for my work was taking a little too long — the director left and advised me to be a pest to get paid. The last hurrah was a “sale.” I was asked to discount my work just a bit to get things sold. Instead of asking for everything to be returned, I agreed. The gallery closed soon afterwards, and although several of my pieces sold, I was never paid. Gallery owner stopped taking my calls, and only reIuctantly returned unsold work that was in “storage,” after much prodding. I was so angry, I called the local media – I called an attorney, I knew I would win a lawsuit, but knew I’d never collect. I’ve been promised payment, but I’m just going to have to take that bitter pill — the one that cost me thousands of dollars. I have only had tentative relationships with galleries since then.

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