How Dead Artists Continue Producing Work

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From Artsy.net:

If Tupac Shakur and the Notorious B.I.G. can release posthumous albums and Mark Morris can choreograph posthumous dances, then surely the estates of Constantin Brancusi and Dan Flavin can issue work long after the artists have passed away?

The estates themselves have already answered that question in the affirmative, but the making of work following an artist’s death is not without controversy. The question of whether and how to produce posthumous work is becoming increasingly salient as a cohort of esteemed artists reach their seventies, eighties, and even hundreds, and they and those around them look ahead for how best to preserve and enhance their legacies.

Loretta Wurtenberger, founding director of the Institute for Artists’ Estates and co-author of The Artist’s Estate: A Handbook for Artists, Executors, and Heirs, said the question of whether to produce work after the artist is gone is “one of the main topics” she discusses with living artists as they plan their estate and legacy. But for artists who have already passed away, she said, the decision should be made “not on copyright issues, not on market issues—it should only be based on what the artist wanted,” she said.

Sometimes, the artist has not specified. American conceptual artist Dan Flavin’s will, for example, said nothing about the hundreds of unfinished editions of his fluorescent light “propositions,” commercially available bulbs arranged according to a specific plan and accompanied by a signed certificate. By contrast, even if subsequent disputes have emerged about his plasters and bronzes, French sculptor

Auguste Rodin  was at least clear in his intentions, authorizing the executors of his estate to cast work from his molds both for public purchase and for the Musée Rodin in Paris.

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The reappearance of Flavin’s work on the market surprised New York dealer Paula Cooper (of her eponymous gallery) and Douglas Baxter, president of Pace Gallery. Both gallerists had worked with the artist in his lifetime, and regularly served on a panel convened by the U.S. Internal Revenue Service that values artwork in collections or held by an artist’s heirs to determine the amount of estate tax the government will levy. In separate interviews, each recalled a determination by the IRS that no further editions of Flavin’s work would be fabricated after his death. Stephen said there was no discussion of that in his negotiations with the IRS.

In any case, the unfinished editions—which a 2005 story in the New York Times estimated were worth as much as $70 million—were not included as part of the estate at the time of Flavin’s death, Stephen said. This meant he did not have to pay the 55 percent estate tax on whatever their value would have been at the time (it could have been much less than the Times’s estimate, given that flooding the market in order to pay a hefty tax bill would have lowered the value of each work). There have been about 30 works with estate certificates sold since Dan’s passing, he estimates.

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Wurtenberger notes that, for artists who produced very little work while they were alive, the difference between lifetime and posthumous works can far exceed the 30 percent average. Lifetime works by photographer Diane Arbus, for example, begin at $25,000 and can reach over $1 million, Wurtenberger writes, citing Frish Brandt, executive director of the San Francisco-based Fraenkel Gallery, which has long represented Arbus. By contrast, Arbus works printed after her death by photographer Neil Selkirk range from $5,000 to $100,000.

Link to the rest at Artsy.net