Interview: Business and Legal Issues for Art Advisors with Katherine Wilson-Milne and Steven Schindler
August 21, 2019
Katherine Wilson-Milne and Steven Schindler, Partners at Schindler Cohen & Hochman LLP and course instructors in our Art Advisory 201 Program, discuss common conflicts and explain how the art market has changed from a legal perspective.
What are the most common sources of conflict that you come across in your work as art attorneys and how could those conflicts be prevented?
By far most of the conflicts stem from not having written agreements between artists and galleries, collectors and dealers or between other collaborators. Parties often think they are on the same page, but writing business and relationship terms down really helps to make sure all parties are really clear on their respective responsibilities.
How do you feel the art market has changed over the past 20 years from a legal perspective?
The higher price and profile of art, especially with respect to contemporary art and cultural property/appropriation issues, has made the risks for art market players much greater. The potential liability with respect to one work of art can easily be millions of dollars. That risk makes parties more inclined to document transactions, engage in better due diligence and have written agreements. The art world is not fully professionalized in this way, but it is moving in that direction due to market realities.
What would your number one piece of advice be for new art advisors starting their own business?
Do not handle your client’s money. Of course, some advisors are also dealers, but those roles are distinct. If you feel like you may have a conflict of interest, you should consult an attorney and make sure any dealings with your client are well documented.
What is the difference between a fiduciary and an agent?
An agent is someone who may legally bind her principal (i.e., sell a work of art on the principal’s behalf), because the principal has given her that authority. Examples of agents are gallerists with respect to artists they represent, dealers with respect to their consignors and money managers or financial advisors with respect to those on whose behalf they are investing. Agents always owe fiduciary duties to their principals, which means that they must act in the best interests of the principal. There are other types of fiduciary relationships (e.g., attorney-client). If you are providing specialized advice to a client and they are relying on your advice with respect to spending money or selling art, you should assume you have fiduciary obligations to that client.
Find out more about Business and Legal Issues for Art Advisors with Katherine Wilson-Milne and Steven Schindler. Enroll in our Art Advisory 201 Program today!
Note: This interview is not intended to be a source of legal advice for any purpose. Always seek the legal advice of competent counsel in the relevant jurisdiction.
Katie Wilson-Milne is a litigator and art lawyer practicing at Schindler, Cohen & Hochman LLP. Katie advises clients in the art, cultural and creative communities, including art galleries, other art businesses, collectors, artists, and not-for-profit organizations in the art space on transactional matters related to the purchase, sale, lending and financing of art, as well as gallery, auction house, and museum relationships. She also represents art clients in disputes involving representation, collaborations, contracts, copyright, authenticity, title, provenance and appraisals. As part of her practice, Katie provides general counsel services and provides a wide range of governance advice to art clients.
Katie also teaches and speaks regularly on art law topics, and is personally involved in the art world through service on nonprofit boards and art affinity groups. She is the Secretary of the Art Law Committee of the New York City Bar Association. She also co-hosts the Art Law Podcast with Steven Schindler.
Steven R. Schindler
Steve Schindler is a founding partner of Schindler Cohen & Hochman LLP, a litigation and art law boutique located at 100 Wall Street in New York City. Steve heads SCH’s Art Law Group. This practice area, which has grown steadily over the past decade, combines SCH’s formidable litigation expertise with a deep knowledge of the art market and its specific legal issues. Steve regularly advises art galleries, other art related businesses, collectors, artists, and not-for-profit corporation in the art space on transactional matters, such as the sale and acquisition of art and their relationships with dealers, banks and auction houses, and has litigated cases involving the authenticity, title, provenance and appraisals of art. As a trusted advisor, Steve also provides outside general counsel services to art clients.
Steve is on the faculty of NYU’s Steinhardt School where he teaches art law. Steve is also Chair of the Art Law Committee of the New York City Bar Association and is President of the Board of Artists Space, whose mission is to encourage diversity and experimentation in the arts and to provide an exhibition space for new art and artists. Steve often speaks on legal and industry sponsored panels relating to current topics in art law, and is the author of articles on art law including, The “Red Flags” Standard: Rationalizing ACA Galleries, Inc. v. Kinney, International Foundation for Art Research Journal, Vol. 16, No. 4, 2016, Buyer Beware: Is There A Duty To Authenticate Art?, International Foundation For Art Research Journal, Vol. 15 Nos. 3 & 4, 2014; Role of Judges in Authenticating Art in United States and Europe, New York Law Journal, Sept. 15, 2014; Questioning ‘Cariou’ Rationale On Transformative Fair Use, New York Law Journal, Nov. 19, 2014. Steve is also the co-host of The Art Law Podcast, www.artlawpodcast.com.