Second art dealer dragged into dispute between high profile collector and leading New York gallery
Jack Tilton is called to the stand by lawyers for Craig Robins and confirms the existence of a blacklist of collectors barred from buying Marlene Dumas’ work

Published online 21 Apr 10 (News)

new york. The ongoing case between the Miami art collector, Craig Robins, and the New York dealer, David Zwirner, over an alleged breach of confidentiality has brought a third person into the fray. Jack Tilton, who represented the South African artist Marlene Dumas until 2008, was subpoenaed to appear in court yesterday (Tuesday 20 April) for a hearing on Robins’ motion for a preliminary injunction prohibiting Zwirner from selling any of three paintings by Dumas being shown at Zwirner’s gallery.

Tilton has become embroiled in one of the more unusual cases to make it to a US court. Robins is suing Zwirner for $8m, after Zwirner told Dumas, whom he now represents, that he had sold her 1994 painting Reinhardt’s Daughter on Robins’ behalf.

Robins filed suit in the United States District Court for the Southern District of New York on 29th March. As well the alleged breach of confidentiality, Robins alleges that the disclosure landed him on a “blacklist” by Dumas, precluding him from buying her works on the primary market. He also says that, to avoid a lawsuit in 2005 when he first found out about the blacklist, Zwirner promised him “first choice, after museums, to purchase one or more [primary market] Marlene Dumas works”.

Tilton was called to give testimony supporting Robins’ claims that Zwirner had agreed to keep quiet about the sale, and his claims of the existence of a blacklist of collectors barred from having access to Dumas’ new work. According to court documents, Robins has been a major collector of the South African artist, owning 29 works, and was eager to acquire three paintings from her new exhibition at David Zwirner. He describes the artist’s latest body of work shown in “Against the Wall” (18 March-24 April) as “comparable to what the ‘Blue Period’ was to Picasso”, adding: “I could not have a complete...collection of her work without a top painting from [this show].”

Zwirner is vigorously defending himself against the claim that he breached confidentiality and that he promised to give Robins special access to works by Dumas.

In his court papers, filed last month, he states: “I did not enter into any confidentiality agreement, written or oral, with Mr Robins.” He says that the only written contract he had with Robins (dated 2 December 2004) does not contain a confidentiality clause.

He also denies telling the artist—who he did not represent at the time—about the sale, in order to curry favour with her, as Robins alleges. He says he acted “in accordance with Dumas’ expectation of being informed of such sales and to inform her that the new owner would be willing to loan Reinhardt’s Daughter for important exhibitions.” He said that while it is “customary practice” for transactions to be kept confidential during negotiations, “by contrast, once an artwork is sold…the sale is no longer within the control of the seller.”

Zwirner also says he did not offer Robins first pick from a future show: “I never promised or stated to Mr. Robins that I would sell him a painting…I did not represent Marlene Dumas at that time and could not possibly have made any promises in regards to her work.”

Tilton was subpoenaed to appear in court by Robin’s lawyers, but said he was not testifying against his will. Answering questions posed by the plaintiff’s lawyer, Aaron Golub, Tilton said he was approached by Robins to sell the work by Dumas in 2004. “I went to David Zwirner and he had a ready buyer and we culminated a transaction.”

Tilton told the court that he had told Zwirner that Robins wished to keep the sale a secret: “There was a discussion of price. There was a discussion of confidentiality because at that time Dumas was concerned about the reselling of her work. I said: ‘You can’t tell the artist, you can’t tell anyone about this work.’ There was a point when Craig was worried that David would tell someone so I had to reconfirm with David that he wouldn’t tell anyone and he agreed.” This alleged breach of confidentiality is the central claim in the suit, and Tilton told the court that, “confidentiality is a key element [in gallery transactions]. Collectors don’t want their business known in general.”

Golub asked if Tilton had any discussions with Marlene about blacklisting collectors in 2004.

Tilton told the court that in 2004 he had several discussions with Marlene Dumas about “blacklisting” collectors. This was a “key topic”, he said, and that the artist and her studio manager, Jolie van Leeuwen “were upset that collectors were capitalising on her work”. He said a list of collectors that Dumas wanted barred from her work was circulated among galleries representing the artist, including his gallery, Zeno X Gallery in Antwerp, Galerie Paul Andriesse in Amsterdam, Gallery Koyanagi in Tokyo, and Frith Street in London. Tilton told the court that the names on the list included collectors such as Richard Cooper, Daniel Holtz and dealers such as Marc Jancou and Frank Demaegd.

Tilton also testifed that Zwirner included Reinhardt’s Daughter in an exhibition at the former Zwirner & Wirth gallery, “Marlene Dumas: Selected Works” (18 February-23 April 2005). At this point, Van Leeuwen asked Tilton if Robins had owned this work at one time. Tilton said Van Leeuwen “was quite upset and almost screaming hysterically [on the telephone] that I hadn’t disclosed that Craig had owned the work” and that Dumas wanted to put Craig on a blacklist for reselling.

Tilton then said he was present at a meeting with Robins and Zwirner at the end of 2004, when Zwirner offered to give first choice of Dumas’ work at a future show. “The museums would get first pick and then Craig,” Tilton told the court.

After Robins’ lawyer had finished questioning, an attorney representing Zwirner took over. His questioning brought to light the fact that Tilton himself may have told Dumas that Robins once owned the work. According to the defence attorney, an email from Tilton to Dumas explained that Robins had sold the painting because he was involved in divorce proceedings.

The defence also submitted documents to the court which he said confirmed the existence of a blacklist, notably a fax from Dumas’ studio referring to two types of lists (black and grey). The fax revealed the names of restricted buyers, alongside the names of those who had submitted to them the studio. It emerged that David Zwirner had been placed on the blacklist—by Jack Tilton.

The defence asked why Tilton had been willing to name Zwirner but not Craig Robins. Tilton said: “Craig had bought [the painting] on resale and sold it on resale. It was really none of [Marlene & Jolie’s] business.” Tilton said the difference was that “Zwirner was selling lots of pieces by Dumas not just one. He was actively buying and selling.”

At the end of the hearing, a tired Judge William Pauley III offered some real world perspective to the battling art figures, commenting on the length of Tilton’s testimony, which went on for almost two hours. “It’s been a long day and I have a murder trial going on,” the judge said as he ended the hearing.

The parties are awaiting Judge Pauley’s decision on the motion.