Pindell v. N’Namdi: If the Art World Wants Equity, It Needs Gallery Contracts
In 1987, artist Howardena Pindell became disillusioned with the exclusionary culture of the art world after twelve years of working as one of the few Black curators at the Museum of Modern Art. She conducted a study concluding that throughout the 1980s, 95 percent of artists represented by sixty-four prominent New York City galleries were white. [1] Around the same time that Pindell released these damning statistics, she began showing her works with George R. N’Namdi Galleries, one of the few local galleries willing to represent Black artists at the time. [2]
Four years ago, in an ostensibly more inclusive climate, students at CUNY Guttman College reexamined New York gallery diversity. They found that white people, who account for just 64 percent of the population, netted 80 percent of the gallery representation in the city. [3] The statistics suggest that the exclusionary culture Pindell identified decades ago persists into the present. In fact, it appears that today’s art market not only excludes but also exploits artists of color; Pindell’s own experience illustrates this dynamic. In February 2020, Pindell filed a federal lawsuit against her gallerist in the Southern District of New York alleging that he violated Section 12.01 of the New York Arts and Cultural Affairs Law (NYACAL). [4] Section 12.01 establishes a consignor-consignee relationship between artists and gallerists. [5] This places artists’ works and proceeds into trusts and obliges the gallerist to act in the artist’s interest as their agent. [6] However, in Pindell’s case, the statute failed to prevent gallerist misbehavior.
Pindell v. N’Namdi (2020) illustrates how Section 12.01 fails minority artists, as its generalized application is blind to the often discriminatory culture of the art market. The historic exclusion of artists of color from mainstream art diminishes their power to self-advocate when gallerists violate their statutory obligations. The New York legislature should address these uneven power dynamics by amending Section 12.01 to mandate that galleries disclose to artists their right to negotiate a written contract. Negotiated contracts would offer more concrete, individualized protections for artists of all backgrounds.
While NYACAL requires gallerists to document individual sales, identify purchasers, and list prices, it places the burden on artists to ensure that gallerists comply. [7] The law leaves ample room for flagrant noncomplicance. Pindell, for instance, spent years asking gallerist N’Namdi for information about sales, payment, and ultimately, the return of her works, all to no avail. [8] Pindell’s case reflects the larger social and cultural forces that render artists, and particularly minority artists, powerless to ensure that gallerists act in their best interests.
Elucidating these extralegal factors, New York based artist-turned-art lawyer Richard Lehun explains that artists constantly fear being “ostracized, blacklisted, or put on the third tier” by their gallerists. [9] This fear of ostracization is arguably greatest for artists of color. As Pindell said in 1987, “artists of color face an industry-wide ‘restraint of trade,’ limiting their ability to show and sell their work.” [10] If they protest gallerist misbehavior, they risk exclusion.
NYACAL overlooks these essential extralegal factors in artist-gallerist relationships. Artists have little leverage to compel gallerists to follow NYACAL, and this impotence is exacerbated for minority artists whose reputations are more fragile due to ongoing effects of historical discrimination. By failing to account for these factors, NYACAL is injuriously “colorblind” in its treatment of a highly discriminatory industry and consequently inadequate to protect minority artists. [11]
While NYACAL’s one-size-fits-all protections fail to account for cultural factors in artist-gallerist relationships, artists might look towards an alternative and superior source of protection in the form of individualized contracts with their gallerists. To make the protection of a contract more accessible to artists, Section 12.01 should be amended to require that gallerists disclose to an artist their right to request a contract. To shed light on the norms surrounding contracts in the art world, Senior Lecturer Judith Prowda at Sotheby’s Institute of Art explains, “Traditionally, the relationships between galleries and artists have been quite informal and it appears to be crass if you sign a contract.” [12] Despite its perceived crassness, Prowda believes that contracts can mitigate some of these legal-cultural discrepancies to the benefit of both parties. [13]
Although minority artists are certainly still at risk of exploitation when negotiating contracts with gallerists who have greater bargaining power than them, the very act of establishing a contract is impactful: it heightens the artist’s awareness of their rights and grants the artist additional legal footing to take action against exploitative gallerists. Contracts also expand upon current NYACAL protections in that, provided an artist feels adequately empowered to negotiate, their contract can be highly individualized to account for both the artist and gallerist’s specific goals, hopes, and fears for their partnership. [14] Contracts are better able to surface each party’s intent from the beginning and compel them to discuss specifics, such as prices, timelines, services, and inventories, that will make the exchange mutually beneficial. [15]
The value of an artist-gallerist contract was evident in the experience of artist Paula Scher when she found herself in a situation similar to Pindell’s. After Scher terminated her relationship with Stendhal Gallery, three hundred and twenty unsold prints of hers remained in Stendhal’s possession, prompting Scher to sue for their return. [16] Although a motion court had recognized Scher’s right to ownership under NYACAL, the New York Supreme Court asserted Scher’s ownership on a different ground: Scher’s contract with the gallery. [17] The contract-backed decision not only confirmed Scher’s right to ownership of her prints, but also prompted the court to reject the gallery’s claim that it was entitled to 90 percent of the prints’ resale value. [18] Though this decision reveals the extent to which contracts may empower exploited artists, it is worth noting that Sher is white. When invited to work with her gallery, she likely felt more comfortable seeking contractual protections without imperiling the relationship.
Given such long-standing sociocultural undercurrents of the art market, contracts currently benefit those like Scher who feel socially empowered to request them. The best way to expand access to protective contracts for all artists, therefore, is for New York to amend Section 12.01 of NYACAL to mandate galleries disclose to artists their right to reduce the agreement to a written contract. Then, no matter how the vulnerable party chooses to proceed, at least they would proceed knowledgeably. Additionally, requiring galleries to raise the possibility of a contract might destigmatize the use of contracts and encourage more minority artists to demand them. The universality of a state-wide contract-positive statute would afford artists with a range of styles and goals the individualized protection that NYACAL currently fails to deliver.
[1] Howardena Pindell, Statistics, Testimony and Supporting Documentation, MCA Chicago Rose Art Museum (2019), online at https://pindell.mcachicago.org/art-world-surveys/statistics-testimony-and-supporting-documentation/. (visited August 5, 2020)
[2] Hilarie Sheets, Helping Black Artists, But at What Price? The New York Times (2020) online at
https://www.nytimes.com/2020/05/03/arts/design/howardena-pindell-lawsuit.html. (visited August 5, 2020)
[3] Henri Neuendorf, Study: 80% of Artists Represented at NYC's Top Galleries Are White, artnet News (2017), online at:
https://news.artnet.com/art-world/new-york-galleries-study-979049. (visited August 5, 2020)
[4] Pindell v. N'Namdi et al. 1:20-cv-00818-PGG (S.D.N.Y. 2020)
[5] Christine Steiner, Kim Bee-Seon, “Art Law: Looking Back, Looking Forward,” 20 Chapman Law Review 127, 128 (2017).
[6] New York Arts and Cultural Affairs Law §12.01(1)(a) (2012).
[7] Special Rules Govern Consignments of Art in New York, Mayer Brown (2017), online at
www.mayerbrown.com/-/media/files/perspectives-events/publications/2017/01/special-rules-govern-consignments-of-art-in-new-yo/files/get-the-full-report/fileattachment/161229-update-bf-bfl.pdf (visited August 5, 2020)
[8] Pindell v. N'Namdi et al. 1:20-cv-00818-PGG (S.D.N.Y. 2020)
[9] Richard Lehun, Andrea Crane, Serra Pradhan, Judith Prowda, Everything You Wanted to Know About Art Gallery Ethics (But Were Afraid to Ask), NYSBA Art Gallery Ethics Panel (2013) online at
https://stropheus.com/artist/art-gallery-ethics/ (visited August 5, 2020)
[10] Howardena Pindell, Statistics, Testimony and Supporting Documentation, MCA Chicago Rose Art Museum (2019), online at https://pindell.mcachicago.org/art-world-surveys/statistics-testimony-and-supporting-documentation/. (visited August 5, 2020)
[11] K.J. Greene, "Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues." 16 American University Journal of Gender, Social Policy & the Law 365-385 (2008).
[12] Richard Lehun, Andrea Crane, Serra Pradhan, Judith Prowda, Everything You Wanted to Know About Art Gallery Ethics (But Were Afraid to Ask), NYSBA Art Gallery Ethics Panel (2013) online at
https://stropheus.com/artist/art-gallery-ethics/ (visited August 5, 2020)
[13] id
[14] Ralph E. Lerner, “Agreements for Visual Artist.” 19 Entertainment and Sports Lawyer (1998).
[15] Jeff W. Slattery, “Art Law in Transactional Practice.” 12 Wake Forest Journal of Business and Intellectual Property Law 369 (2012).
[16] Scher v. Stendhal Gallery, Inc., 983 N.Y.S.2d 219 (App. Div. 2014)
[17] id at 2
[18] id at 2