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Details (and text) of Clyfford Still Sales Agreement Between Denver, Sotheby’s

Denver’s new Mayor, Michael Hancock, expected to sign Still sales agreement with Sotheby’s next week

The Denver City Council approved on Monday evening an agreement with Sotheby’s for the marketing of four paintings by Clyfford Still from the estate of his widow, Patricia. The proceeds will fund an endowment for the Clyfford Still Museum, scheduled to open on Nov. 18. Were they not being offered for sale, the paintings would have been part of the collection of the new museum, which will house the works from the Still estate.

You can read the full text of that 12-page agreement here. It gives a fascinating inside look at a complicated arrangement between auction house and consignor.

Jan Brennan, Director of Cultural Programs for Arts & Venues Denver, the city agency overseeing the deal, told me that the agreement will become effective when it is signed by the Mayor, which is expected to occur next week. After that, the exact terms of commissions and guarantees will be negotiated, subject to the parameters of the preliminary agreement.

Denver received court approval in March to sell the paintings, contravening the explicit, unequivocal no-sale provisions in both Clyfford and Patricia Still’s wills. This deviation from their wishes was deemed necessary because the museum “was unable to raise sufficient funding for its endowment fund for ongoing operations,” in the words of the Denver/Sotheby’s agreement.

What exactly is Denver planning to sell? I’ve previously published the numbers assigned by Still to the four otherwise untitled works. But neither the museum nor Sotheby’s has thus far been willing or able to provide me with the images of the works they are marketing. The Denver City Attorney’s Office, evidently convinced by my
assertion that the images filed with the city are public records, sent me what it has in its files—low-quality, black-and-white images:

Images of the four paintings being sold to benefit Clyfford Still Museum’s endowment, as filed with the City of Denver

Three of these four paintings are reproduced in the catalogue for the Metropolitan Museum’s 1979 Clyfford Still retrospective. Two of them, reproduced in color, were among the 79 paintings in the show (which I saw).

To give you a better idea of what’s being sold, here are my photos of the relevant pages from the Met’s catalogue:

PH-89 (1949), 93 by 79 inches

PH-1033, 1976, 93½ by 83 inches

A third painting is seen in the Met’s catalogue as part of a photograph of Still’s 1946 show at Peggy Guggenheim‘s legendary “Art of This Century” gallery:

PH-351, 1940, 41 by 37½ inches,
at center

Dean Sobel, director of the Clyfford Still Museum, had previously told me (when I visited the museum’s construction site last February) that he hoped to keep the four paintings together and “in the public domain.” But the terms of the agreement with Sotheby’s, still subject to the Mayor ‘s final approval, leave little possibility that a museum will be able to buy these pictures.

That’s because if no private deal has been arranged by Sept. 19, the paintings will be put on the auction block at Sotheby’s contemporary sale this November, according to the agreement. Given the fact that Denver Mayor Michael Hancock, who took office on July 18, has yet to sign off on the deal, that leaves a very tight window for a sale to an art museum to be contemplated by curators and trustees, let alone consummated (unless institutions have already been approached and have expressed serious interest).

Also weighing against a private sale is the fact that Sotheby’s has a much stronger financial incentive, under the terms of the agreement, to sell the works at auction, rather than privately: In a private sale, Sotheby’s would get up to 5% of the purchase price, to a maximum of $7.5 million. In a public sale, the auction house’s take (including the fee charged to the successful bidder—the buyer’s premium) would be up to 15% of the price, to a maximum of $15 million—twice as much as the maximum compensation to the auction house for a private sale.

Unlike a private sale, where the auction house’s fee would come exclusively from the sale proceeds, a public sale would potentially give the auction house the benefit of a to-be-negotiated seller’s commission (if any) from Denver, and the buyer’s premium from the successful bidder (25% for the first $50,000; 20% from $50,000 to $1 million; 12% for the excess above $1 million).

How much does the Clyfford Still Museum expect to receive from this sale?

Under the agreement, the minimum total guaranteed price at auction for the four-work consignment is $25 million—the amount the museum would receive from Sotheby’s, whether or not the bidding reaches the level of the guarantee. (A private sale would also have to bring at least $25 million, but Denver would, under the terms of the City Council’s bill approving the deal, retain the right to reject any private sale and try its luck at auction, even if the private offer topped $25 million.) The actual guaranteed price, still subject to negotiation between Sotheby’s and Denver, could be higher than the $25-million minimum.

Similarly, the actual commissions to Sotheby’s, while capped, are subject to further discussion and could be negotiated downwards, once the preliminary agreement is signed.

The financial parameters for a possible private sale suggest a best-case total price for the four paintings of a whopping $150 million: As noted above, Sotheby’s could receive a private-sale commission of up to 5%, to a maximum of $7.5 million. That $7.5-million figure equals 5% of a $150 million pricetag (or an ambitious average of $37.5 million per painting). The record auction price for Still, set at Christie’s in 2006 for 1947-R-No. 1 (69 by 65 inches), is $21.3 million.

As reported by Jeremy Meyer of the Denver Post, Christie’s, which competed with Sotheby’s for the consignment, took the highly unusual step of publicly lambasting Denver for choosing its rival. Christie’s, according to the Post, has “hired attorneys, retained a lobbyist,
requested public records and fired off a statement that said the
awarding of the contract was ‘arbitrary and capricious.'”
[I am seeking a copy of that statement and will link to it here, if and when I receive it.]

I expect to have more on this situation, including analysis and commentary, in a future post.

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