On this month’s podcast, we take a close look at art auctions – how they work, their place in the art market and the rules and regulations that confine/define them. Auctions at Sotheby’s and Christie’s now regularly net tens and sometimes hundreds of millions of dollars for a single work. Christie’s recently sold Leonardo da Vinci’s Salvator Mundi painting for $450 million, by far the highest price ever garnered by a piece of art at auction. At the same time, much about the auction process remains secret. The identity of the buyer and seller is often known only to the auction house, and the reserve price (below which an artwork will not be sold) is known by the auctioneer but not the bidders. While the auctioneer may not sell a work of art below its reserve price, it can bid on the work below the reserve to get the auction going. Steve and Katie discuss these issues and others having to do with regulation, transparency and potential conflicts, and welcome famous Sotheby’s auctioneer Oliver Barker to take us behind the scenes of a big auction.
Steve Schindler: Hi, I’m Steve Schindler.
Katie Wilson-Milne: I’m Katie Wilson-Milne.
Steve Schindler: Welcome to the Art Law Podcast a monthly podcast exploring the places were art intersects with and interferes with the law.
Katie Wilson-Milne: And vice versa. The art law podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier ligation and art law boutique in New York City.
Oliver Barker: There was that element of, you know, great excitement coupled with complete fear in terms of – kind of the very live nature of that performance, and that’s something which has always appealed to me as an auctioneer. You know, there’s a very live entertainment kind of perspective of that role.
Steve Schindler: Katie, I received some feedback on the podcast from listeners this weekend, and one of the comments that was made to me was with respect, particularly to the Berkshire Museum Deaccessioning episode, that this listener didn’t think that we were necessarily impartial enough or that we were taking sides. And I thought about that a little bit and one of the things that I feel is that we’re not journalist. We’re not pretending to be journalists and we have points of view, and I think we’re going to express them. What I think is also important, though, is where possible to have people aligned with different points of view, and we are very open to that. So, I would say if somebody from Berkshire Museum who listened to our podcast, a representative or a member of the Board of Trustees, would like to come on and present their point of view in conversation with us –
Katie Wilson-Milne: We would love that.
Steve Schindler: We would love that. And similarly with respect to the 5Pointz episode, we spent a lot of time with the artists and people involved in 5Pointz, but certainly if Mr. Wolkoff wants to come on and talk about what motivated him –
Katie Wilson-Milne: To develop the site.
Steve Schindler: We’re happy to have him on – and have the conversation. We will still have the same view points that we have, but we certainly would like to engage with people who have other view points.
Katie Wilson-Milne: Right and our goal with this podcast is to raise interesting issues that people may not have thought about in the way that we talk about them that connect the art world and the legal world. But it’s not to provide a completely even handed news article about these topics, it’s to have an interesting discussion between — mostly the two of us, and we are who we are and we think what we think what we think. I think, actually, it may evolve over time depending on who we talk to, how we present certain issues. We’re also constrained by the guests who come on the show, and we want to be respectful of those guests by honoring their opinions and what they have to say.
Steve Schindler: So, if you want to come on the show –
Katie Wilson-Milne: Send us an e-mail.
Steve Schindler: Let us know.
Katie Wilson-Milne: So, Steve on this month’s podcast, we’re going to talk about auctions. We have the May auctions coming up at the big houses – Christie’s, Sotheby’s and Phillips – both in New York and in other international locations, mainly London, in early May. So, it’s a good time to talk about this. Auctions tend to dominate the art world both in terms of the publicity they get, the prices that come out of auctions, and obviously they are public in a way that private sales are not. So, it’s an exciting topic.
Steve Schindler: And we’re going to be joined in our podcast by the Sotheby’s auctioneer Oliver Barker who is one of their top auctioneers in the area of contemporary art.
Katie Wilson-Milne: Yes, so he is going to give us an insider’s view on what it feels like to be in an auction, what an auction house like Sotheby’s does to prepare for a big auction and what he notices has changed over time in the auction world. So, to back up and give our listeners a little bit of background the art market itself is said to be worth between $40 to $60 billion right now. Auction sales from the main auction houses – which are Sotheby’s, Christie’s and Phillips – make up about $11 billion of that, that was the figure in 2017. Only beat, I think, by the results in 2007, which were over $12 billion.
So, it’s a big chunk of the overall art market takes place at art auctions in these three big houses. The biggest group of auctions sales take place in the United States. Although the auctions in London and in Hong Kong are also incredibly significant in terms of the profile works that are sold and the types of buyers that are there. One thing that makes auctions interesting is how psychological the selling format is. So unlike a private sale, where a dealer – whether its Sotheby’s or in a gallery or private dealer – will call a client or a contact and say, “look, I have this work for sale,” you know, “here’s what the seller will take it for it.”
At an auction you get the atmosphere of people bidding against each other, which seems to have great psychological effect, and there have been sales in the recent past that have taken off tremendously and sold for way more than anyone could have imagined. The most famous example of that is the Salvator Mundi, Da Vinci sale at Christie’s that happened last November, where we had two buyers in the end bidding against each other. And the work ultimately sold for around $450 million, which is far and away the most expensive work that’s ever sold at auction ever, ever, ever. Right, Steve?
Steve Schindler: Right and in that case you had two buyers who were bidding against each other who each thought that they were bidding against somebody else, as its been reported. And so it drove the price up even higher than any one even contemplated.
Katie Wilson-Milne: Well, because of who those two bidders were.
Steve Schindler: Sure.
Katie Wilson-Milne: So, the story is actually pretty interesting right. We found out after the auction that the ultimately winner of the work was a Saudi prince, and he had been bidding against a friend, actually, from the United Arab Emirates who wanted the work for the new Louvre in Abu Dhabi. They both thought they were bidding against someone from Qatar instead of each other. When they found out that they weren’t and they bidding against each other, which is the only reason it went for $450 million, they apologized to each other and the Saudi prince said, “oh actually you can take the work for the new Louvre in Abu Dhabi in exchange for a yacht.” So, it actually all worked out and the great anxiety about that sale, which is that this masterpiece would go into private hands, now resolved and hopefully it will be see at the Louvre Abu Dhabi.
Steve Schindler: I’m not sure what that whole transaction means for art or auctions, but it was amusing.
Katie Wilson-Milne: But it happened.
Steve Schindler: And – but from the point of view of a seller, you see these incredible bidding wars for certain kinds of objects, but the auctions can be a little bit terrifying for a seller, because you never know what the market is going on any given night. You know at least if you’re selling a work at a gallery you have a lot more control over the situation and you can wait until a buyer comes along with a price that you’re asking.
But in auction one possibility is that the bidding is good and strong and you get a very good price; the other possibility is that there isn’t any bidding that night for a variety of reasons.
Katie Wilson-Milne: Right.
Steve Schindler: And the work is publicly not sold.
Katie Wilson-Milne: Right, so unlike a private sale where something isn’t sold, well, you just wait and you sell it later. But at auction if it doesn’t go well, that can really taint the marketability of the work.
Steve Schindler: And now the rules require that the auction houses announce that a work has not been sold. Then, the word that’s used for it sometimes is that the work is burned. And then can’t really be sold, at least not at auction, for some period of time.
Katie Wilson-Milne: I would totally take advantage of a burned work if I could —
Steve Schindler: Well, of course and the auction houses then do try to sell the work privately afterwards and sometimes they know, because they know who the bidders are. You know, what the interest is and then they are broker a sale immediately after the auction.
Katie Wilson-Milne: Just maybe not for as high a price as they could have before. So, Steve we’ve talked a little bit on this podcast and certainly between ourselves about the level of or lack of regulation in the art market and sort of the increasing concerns over transparency, either in terms of money laundering or just transparency about the provenance of a work. Auctions do function a little bit differently than private sales, right? I mean there’s more transparency if not complete transparency.
Steve Schindler: Well, auction houses are much more regulated than private sales and —
Katie Wilson-Milne: Which are not regulated at all.
Steve Schindler: Which are not regulated at all, and there is certainly a lot more transparency in an auction process. I’m not sure that we can say that there’s 100% transparency. But there are a lot of rules that the auction houses have to comply with, and they do comply with, that at least ensure a certain fairness and openness in the process.
Katie Wilson-Milne: But one of those things is not who the seller is often, right? That’s the one thing that’s still not transparent —
Steve Schindler: That’s right and there was a case that ran all the way up to the court of appeals a few years ago.
Katie Wilson-Milne: In New York.
Steve Schindler: In New York, where we had a buyer at an auction who decided that he didn’t want to pay for the work after the fact and challenged the auction house rules on the theory that there needed to be a written disclosure of the identity of the buyer. And actually that case went up to the highest court in New York and in the court below, much to the unhappiness of the entire auction industry, the court below actually found for the purchaser and invalidated the sale because there was no written record of who the seller was. And the court of appeals decided to overturn that much to the relief of the auction industry.
Katie Wilson-Milne: Yeah, there have been efforts over time to require dealers to disclose the identity of the seller to the buyer, but those have not been successful, though. The art world seems somewhat allergic to idea of disclosing who the owner of a work is.
Steve Schindler: There are really two big secrets now at an auction: one is, sometimes, who the owners are. I mean, not at every auction. Sometimes it’s in fact a huge selling point.
Katie Wilson-Milne: Like the big Rockefeller sale coming up.
Steve Schindler: Right exactly, so the provenance of those works is incredibly important to the value, but sometimes collectors don’t want the world to know what they’re selling. And so they insist that their identities be kept private and often those works are offered as the works of a private collector or European collector, an American collector. And the other big secret at auction is this reserve price.
Katie Wilson-Milne: So, what is the reserve price?
Steve Schindler: Well, the reserve price is the secret price that’s agreed to between the seller, or the consigner of the work, and the auction house. And it’s the price below which the work cannot be sold. And what’s not a secret and what has to be disclosed is the fact that there is a reserve, and that is clearly disclosed in all auction catalogues. And typically in the major auction houses they disclose that all of the sales are with reserve unless they say otherwise.
And the other thing that means is that, the way that the auction is conducted, is that the auctioneer is allowed to submit bids on behalf of the seller up to the secret reserve price.
Katie Wilson-Milne: Why would they do that?
Steve Schindler: Well, it’s really – some people have criticized the practice, the practice is sometimes called chandelier bidding on this idea that the auctioneer is sort of taking bids off the —
Katie Wilson-Milne: The ceiling, yeah.
Steve Schindler: — the chandelier in the ceiling, but really it’s just a question of creating some theater and drama, because up until the reserve price is hit, the work can never be sold. So, even if the auctioneer is engaging in some bidding up to the reserve price, until you hit the reserve price, it really has no real impact, accept to sort of —
Katie Wilson-Milne: Confuse everyone about what the reserve is.
Steve Schindler: — or to warm up the room if you’re taking it from the auctioneer’s perspective.
Katie Wilson-Milne: So, how does the concept of a reserve interact with this other concept of a guaranty? And what is a guaranty?
Steve Schindler: Well, a guaranty, which is often used now by major auction houses to entice collectors of works to consign the works to them, is basically a contract of promise by the auction house to pay a set amount of money to the consigner of the works regardless of what happens at the auction, and regardless of whether the reserve price is hit.
Katie Wilson-Milne: The seller knows 100% they are going to get at least that amount of money.
Steve Schindler: Right, sometimes that’s important to a seller the thing that the seller normally gives up when they agree to take a guaranty, is some of the upside of the auction if the price goes above the guaranty and the reserve price.
Katie Wilson-Milne: So, the auction house would split the profits above the guaranty.
Steve Schindler: Yeah and in some proportion and very often now the auction houses, if they are giving a guaranty will in a sense syndicate that risk to other parties who put up the money and are willing to make the guaranty.
Katie Wilson-Milne: So, it’s a third party that – if the bidding didn’t go higher than the guaranty price they take the work.
Steve Schindler: They would take the work at whatever price they guaranteed it at – most of the individuals or institutions that give guaranties would prefer not to have the work. What they are doing is making a financial bet that the work will sell at a price that is higher than the guaranty in which case they receive a return on their investment.
Katie Wilson-Milne: So, Steve let’s talk to an auctioneer who actually works at these big night auctions and see what they have to say about how they work. Our guest today is Oliver Barker. Oliver is a senior director at Sotheby’s auction house and co-chairman of Sotheby’s Europe. He is also one of the auction world foremost auctioneers. So, he is both behind the scenes and in front of the camera at Sotheby’s, which he joined in 1994 moving through roles in contemporary art as a senior international specialist, among others.
He has overseen some market-defining auction sales, including two major sales of Damien Hirst works, including one that set the world record for single artist sale. He has a particular interest in post war British art, which he has promoted at Sotheby’s. And he was the auctioneer at the May 2017 auction in which a Basquiat work sold for record-breaking $110.5 million.
Steve Schindler: Welcome to the podcast Oliver. So, what kind of skills do you think a good auctioneer has?
Oliver Barker: Yes, well you know, in any given sort of auction, obviously the auctioneer’s role is to try and help proceed the kind of trading from the consigner to the purchaser. So, the ability to remember, without slavishly looking down at kind of the auctioneer’s book, which is obviously there as a working tool during an auction, exactly what the estimate is for a particular work and also its protective reserve price, and therefore also it’s kind of opening bid, there’s a number of kind of key financial things in play.
And, equally, there are so many means of bidding in this sort of modern day. So, I suppose most traditionally, the easiest way to bid is actually in the room, whether it’s a private client or whether you choose to bid through an agent who’s sitting there executing bids on your behalf. And there are also kind of the execution of bids via the telephone through a Sotheby’s representative. There may also be commission bids, and the commission bids are always ones which are lodged in the auctioneer’s book.
So, whilst starting off on a particular – you hear auctioneers say footing, the auctioneer’s footing — one has to be aware where the reserve price is, where a commission bid might be and more importantly where the commission bid ceiling is. Whilst also kind of orchestrating multiple bids that might come in depending on what the level of interest is in a particular lot.
Katie Wilson-Milne: So, we definitely want to ask you about the stages of an auction, so we’re going to get back to a lot of the items you just mentioned. But maybe first we should ask you to explain to our audience how you decide what goes into an auction versus a private sale. I mean, big houses like Sotheby’s and Christie’s do both, maybe there’s a movement towards more private sales now. So, what is the determination of what goes up for auction and what doesn’t?
Oliver Barker: Well, I think it’s a really interesting question. I think at the moment because the market is ostensibly very strong, and particularly in the area of contemporary art with which I’m most focused. I think we have the luxury in contemporary, to a great extent actually, to curate the auctions that we’re handling.
In other words, there are far greater more voluminous supplies of great objects of the Post-War period, which is how we loosely define Contemporary, then there might be say of old master, kind of masterpieces. We use our global network and the conversations that we’re having with museum curators or dealers or gallerists or collectors to really have a insider’s knowledge, if you like, of who are the artists sort of being — sort of collected and who are in high esteem in a particular moment.
But then also amongst those artists works, what are the key periods or what are the most rare objects? And what are the ones that the market has seen a real hiatus of? And quite quickly, you sort of figure out that, okay you have the real estate of a certain amount of exhibition space prior to an auction. You have the real estate of a Sotheby’s catalogue, which is a major marketing tool that we use, but equally is one that takes a huge amount laborious work in preparing.
One has the audience’s attention span, which generally doesn’t last beyond a certain amount of time and then also you have key experience. So, we tend to have in an evening sale a context probably not more than about 75 lots. That will probably be your maximum. I mean, there’s no hard and fast rule. But I think much beyond 75 lots you know, it’s hard to keep an audience’s attention and focus. But at the same time you want to be able to curate a sale so that — there are lesser value things that which you know, are going to be short fast sellers.
And you want also want pepper the ordering of the catalogue, which is also particularly critical, to introduce the high value lots at the commercially most optimum moments. And I think at the end of the day also we’re getting very closely judged both by Wall Street and by the collector community in terms of how many unsold lots we’re handling. I mean, I think it is fair to say that it’s a rarity to have sales which are 100% sold. When putting a sale together one intends to try and sell everything as best one can, but market forces obviously and a variety different reasons may mean that things go unsold. But there may well be through price expectation or physical condition issues, problems of some sort of conservation for example, that on the day the market turns its back. So, we would like to have a fairly tightly trimmed unsold rate obviously of a percentage as low as possible.
Steve Schindler: Maybe talk us through sort of setting the stage of what it’s like, the atmosphere is like, at one of the big evening Contemporary art auctions that you preside over.
Oliver Barker: No, I mean the big auctions really are you know an amazing spectacle. I think it’s fair to say that the evening sells are very much the summation of a very intensive three month period since the last set of auctions. And in many cases, the fruition of many years of engagement with a particular collector, meaning that we have put together an auction of what we believe to be the finest works of art in that particular sale season.
So, there’s a tremendous sense of anticipation from a number different perspectives whether it’s the vendors. Whether it’s the market itself responding to the quality of the objects that we are offering, whether it’s the people within the room itself, in other words the people who attend, whether they be private collectors or consigners or potential purchasers. From Sotheby’s perspective obviously, there are the management and the financial expectation of the sales and there maybe even be our shareholders or our board members or even Wall Street that are looking in as well.
So, I think it’s fair to say that there’s quite a lot of eyes coming from many different disciplines, all of whom are very clearly focused on that start time of 7pm. when we kick off. And being in a live business as we are, it’s very exciting that all of our presale marketing is conditioedl, obviously to that deadline and approaching that kick off point.
So, that we have done our absolute utmost on behalf of the vendor to reach out to the world’s collectors and — you know, I think it’s interesting, in previewing the next major sale season, New York in May, where there are so many superlative objects that are coming to the market at the same time. You will find that the orchestration of marketing these sales, and therefore how well the auction does, is really crucial in making sure that the world’s global collecting community is very, very focused on participating and being focused from New York at 7pm when we kick off that sale.
Katie Wilson-Milne: So, what do you do in the lead up to an auction? What are the key things you do to drive up interest in the sales ahead of time?
Oliver Barker: Well, there are kind of three elements, I suppose, in terms of how we best raise interest and therefore the kind of the excitement around a particular object and particularly trying to get somebody to actually come participate in that and bid in an auction. First of all, there’s the announcement of the sale itself, and actually normally that is the sale catalogue. So, that’s the very first time that the market’s actually been able to have a very holistic view on all the objects that we’re going to be selling in that particular moment.
Sometimes preceding that, sometimes following that, are a series of well-orchestrated marketing campaigns, which might include taking a particularly important object to Hong Kong, for example. I actually think a very good example is the announcement today, in fact, is the wonderful Modigliani Nude of 1917, which was actually launched online in a live web cast on Sothebys.com but from Hong Kong. With a very deliberate view that you know, the unlikely buyer for an object like that may very well come from that region of the world.
But at the same time you know, that is an object which will now return to the New York to be viewed in the next couple of weeks in a presale exhibition you know, within our building on York Avenue, and that’s the other key part of the exhibition, of suddenly going into an auction. You know, we have a – usually 10-day, or sometimes longer or sometimes a little bit shorter, preview before a particular sale, which enables collectors to come in and look at the pictures, but I think also most importantly to really do due diligence and talk to experts at Sotheby’s or take their own independent advice and come in with somebody who has some particular knowledge in an artist’s work. Even seek the opinion of a third party conservator, you know somebody who’s able to come look at an object, take it off the wall. I mean in the same way that you wouldn’t acquire a house without having a full structural serving on it, collectors do very much the same thing with paintings. I mean, they like to come onboard and actually have a look at conservator’s reports and get a sense of is it in the original condition from which it left the artist studio? Have there been some kind of repaintings? Are there any loses anywhere? And then obviously, you lead to the auction itself, and that might be proceeded by dinner parties or press releases as well.
But as I mentioned a moment ago obviously the sale tends to kick off at a very particular time. Nowadays also because our auctions are broadcast online, it’s even more important that we kick off in sort of a timely manner. And we’ve had going on behind the scenes throughout the whole auction process a number of internal meetings at Sotheby’s, which are called interest meetings, which are designed to help orchestrate and choreograph, what are the levels of interest that the works of art that we’re selling are driving in the market place. In other words has that first lot in the sale had the kind of feedback that we thought it might, because it’s such a rare object, and that it seems to carry comparatively conservative estimates? So in other words, has it driven three or four people to look as if they’re making the signs they might decide to make a bid on the auction?
Steve Schindler: So, Ollie, when you start the bidding you already have a sense, I gather, of who is interested and what level of interest they have.
Oliver Barker: Right, I think it’s fair to say that you know, auctioneering is a very irrational process, it’s not a fixed price. I think to a perspective purchaser of art who’s never bought at auction before, there is some level of discomfort. I mean by comparison to walking into a gallery, where quite often there is a published price or you know it’s known what the end user price might be, and of course barring any room for negotiation, you’ve got a fairly clear idea what you are going to be likely paying for a certain transaction. When you walk into an auction, obviously, there is absolutely no guaranty that the object is going to be acquirable at a particular level of price, because of course it just – it entirely depends on who ends up bidding against you. Having said that, what we are trying to do is to make the irrational as a rational as we possibly can. In other words we are using our experience to try and understand what the likely outcome out of a particular auction might be.
Now, obviously we would love to supersede our expectation and know that on the night you know, something might double or sometimes triple or if we’ve done our jobs correctly and we know we’ve got a wonderful object and equally it’s being well marketed and it’s highly desirable in the marketplace and you have been able to drive great interest in that particular object, you might probably might find that something will take off and make a really superlative price that has no precedence in the market to date.
Katie Wilson-Milne: How often does that happen that there’s sort of a runaway bid, bidding on a work that just takes everyone by surprise?
Oliver Barker: Well, I mean, Katiem you know, I wish I could say on every single lot. I mean, I think that buyers now are particularly savvy. And I think you know, we would expect them to also be fully aware of and advised of what comparable objects make in the market place. So, depending on what you’re selling you know, there may be one sale. And we had a great example of something which did superlatively well last May when we sold a Basquiat painting for $110 million —
Katie Wilson-Milne: Right.
Oliver Barker: — it had an estimate somewhere in the region of just over $50 million, so that was a really great example of something which completely superseded what our presale expectations were.
Steve Schindler: And you were presiding over that auction, Ollie, as I remember.
Oliver Barker: Yeah, I had the great privilege of holding that auction.
Steve Schindler: How did that feel at the time?
Oliver Barker: It was terrifying. I think that because I very much love the entertainment aspect of the auction, it was something, which seems to go very slowly. Albeit I think time actually sometimes slows down actually when you’re dealing with such high figures. And particularly when kind the freestyle excitement of two very determined bidders like that kind of really gets going.
But it was a great privilege, it was tremendous work of art. And I think also the signs in the presale activity have been that the market – this is the picture that market was really looking for. I think you have the trilogy of a great object by a great artist, which is entirely fresh to market. Really truly all those kind of the elements choreographed together to make a phenomenal price. And I think in fairness to Sotheby’s also — I think we did a tremendous job in terms of marketing in that work and just making sure that on the night the two most likely bidders or end users ended up sort of fighting against each other and there was a real sort of gladiatorial kind of contest which went on between them.
Katie Wilson-Milne: It’s really interesting how much of the excitement I think of the auction actually happens before the auction, which you’ve talked about in terms of the press and the social media and the events. And I wonder has that changed over time, in your experience?
Oliver Barker: You know, it’s really interesting to me that you know, well Sotheby’s is actually the – I think we’re the oldest company that’s listed on the American stock exchange. We’re a company that was founded in 1744 in London by somebody who was a bookseller. And I think the reason that we remain, or rather, auctioneering remains a really contemporary activity is that I still think it’s one of the most effective ways of selling works of art from one entity to another. And I think you know, that we’re fortunate you know, being Sotheby’s — and Christie’s and Phillips could say very much the same thing — that we are deemed to be kind of very credible marketplaces for the sale of the greatest works of art and the thing that we particularly handle. Having said that, I think that you know, particularly with the new opportunities afforded by the internet and social media etc., I think the abilities to market what we’re selling have grown massively within the last two years.
And continue to kind of change all the time. And I think that we as a business are very much at the forefront in terms of kind of trying to get technical innovation, very much front and center in terms of how we get objects sort of into the minds of the prospective purchasers out there. I think it’s fair to say at that actually auctioneering in a way remains a very, you know — it’s quite an old school form of actually selling something. You know you have a finite amount of time to sell something, it has to be in a particular city, it has to start at a particular time, and you’re somewhat reliant on your audience actually being available and focused at that particular moment. Having said that, you know and again to use another analogy, I think that’s race horses tend to run a little bit faster when they can hand the hooves of other horses beside them and I think very much —
Katie Wilson-Milne: Right.
Oliver Barker: The same with bidders. You know I think that there is something very compelling to a major collector to feel that there is a competition for a work, which very much validates that quality of that particular work. I mean I think in a way to sort of buy something against a reserve price or with no other bidder or under bidder can to a lot of people be quite a difficult situation. It suggests that your taste has not been validated on the day of acquisition.
Steve Schindler: And some of the language that you use in an auction also is — seems adversarial, you know, when you say to a bidder “against you” or you know it’s —
Katie Wilson-Milne: You’re setting up a competition almost.
Oliver Barker: I think there are people who are very determined when it comes to auction to actually try and acquire something. So I think the auctioneer’s role is very much to help translate that kind of rigorousness on a bidder’s behalf to really acquire that trophy and acquire that sort of particular masterpiece. I mean, I think I prefer to use the word cajole in a way, rather than kind of adversarial. I am not —
Steve Schindler: Fair enough, fair enough.
Oliver Barker: I am not sure how many bidders are overly adversarial —
Steve Schindler: Fair enough.
Oliver Barker: If I am cajoling them well enough. And if that means kind of questioning their virility of bidding, then that’s definitely something that we like to kind of use as a means. And I think the audience is very receptive to it as well.
Katie Wilson-Milne: Well, it makes it very exciting, and Steve and I in preparing for this podcast did some reading about work that’s been done on the psychology of the auction, and it’s — it’s really interesting.
Oliver Barker: Yes, yes.
Katie Wilson-Milne: I mean, people just react completely differently in an auction setting than they would in a private sale. And you know I was thinking of you sort of as this psychological master leading the auction. Now do you think about —
Oliver Barker: Yeah.
Katie Wilson-Milne: You know. Do you do any research on that, or how do you think about the psychological?
Oliver Barker: No, very much so, and I think that it’s very hard to kind of really define it particularly when you’re in a live environment like that. You know, there are examples and you know one sticks to my mind probably more than any was when we did the big Damien Hirst “Beautiful Inside My Mind Forever” Sale in 2008. I mean in terms of a presale environment, you could not have got a more heady mixture than the imminent collapse of Lehman Brothers happening during the presale exhibition of that sale and then the eventual collapse of the bank and kind of the financial tsunami in the stock exchanges that was the direct result of it, which happened on the 15th of September 2008. And that was the kind of the back drop to which we then held the sale that evening in London at 7pm.
So you know from the announcement first thing in the morning that the bank, or rather the central bankers in America had chose not to support Lehman Brothers and it fell into administration, you suddenly saw opening in the Turkey stock exchange this sort of financial malaise that spread west around the day. So by 7pm that evening in London, of course there was, you know, this front page news in the Evening Standard. We were incredibly worried about what would happen and how the transition would affect the auction. But I think it’s fair to say that you know in any auction environment there is a kind of a vacuum-like opportunity or intensity if you like where the outside world is somehow put on hold and people are particularly focused on the auction itself and I think actually, because the auction of Damien Hirst works was a completely unmitigated success. I think there was an element of, you know, yes, psychosomatically people were very involved and very engaged with those objects, but as an auctioneer, you know, I was hopefully able to get their real attention that night and there are no rules — I mean, I think also — no rules in terms of what a bidder’s limit might be. I mean, depending on what their financial means are. I mean, a lot of our bidders are very astute and they come in with a very fixed idea of what they want to spend on a particular object. There may be those who on the night have a particular limit, but then blow straight through depending on their mood.
Katie Wilson-Milne: I was going to ask you just that, right, do they stick to it?
Oliver Barker: Yeah. Well, it’s you know I — I can only speak for my own experience you know when I bid in auctions outside of Sotheby’s, quite honestly you know you set yourself a limit, and I did this actually buying my wife’s engagement ring, you know I set myself a limit and then I just blew straight through it, because it was just an object I had to have. And I think that’s also dependent on you know the high into the market, you know when you’re dealing with kind of unique Rothko’s or Modigliani’s or Francis Bacon paintings or Picasso’s, and you saw it clearly with the Leonardo painting that came up at Christie’s. You know I think in that case, when there is an element of scarcity and rarity and kind of you know a one-offness in the marketplace, there’s much more likely and to be a kind of stellar auction price, which will be very hard to replicate.
Steve Schindler: So, Ollie, you’ve been very generous with your time. And we’re sad to let you go, but I would like to ask just one more question before we conclude. You are an auctioneer in London, you are an auctioneer in New York. Is there difference between auctions held in Europe and the United States, or even Hong Kong, just in terms of the atmosphere and the —
Katie Wilson-Milne: The buyers?
Steve Schindler: The buyers?
Oliver Barker: I think the short answer is yes. But I think as an auctioneer I am very conscious about trying to engage a different audience in a different geographical location. I mean I think that in New York, in particular, with the auction room at Sotheby’s, it’s a vast space, it seats many more people than our London auction room. And I think that they are obviously the stakes in terms of the values of the works tend to be a lot of higher. There is arguably more participation actually from the telephones than there are in any other auction location. And I suppose for me, being based in London, it’s a slight cultural nuance just on the, in the basis of being in a different city.
But you know it’s now become very familiar to me. I mean, I certainly as an auctioneer I remember the first time I got up in New York to take an auction it really felt as if I was sort of entering in a tremendous environment, a huge kind of stage and obviously with works to kind of back that up. I think in London just by definition our building here is a little bit more quaint, albeit the auction itself is still to an audience of possibly up to six, seven hundred people. But I think, you know, one has to be attuned to the kind of the audience that is looking as well as the people who are likely to be tuning in. I mean, it’s very difficult as an auctioneer to know exactly who is on the end of a telephone line or who is watching from the comfort of their own home in terms of online bidding for example, but — because there are more numerous ways of actually pricing bids these days, we have to be accountable for each for each possible one.
Katie Wilson-Milne: Great. Well, thank you so much for speaking to us today. I know our listeners will enjoy hearing your perspective.
Steve Schindler: Thank you, Ollie.
Oliver Barker: My pleasure. Thanks, Steve. Thanks, Katie.
Katie Wilson-Milne: Well — so let’s talk about the rules, rules are obviously exciting to us because we’re lawyers.
Steve Schindler: We are lawyers and we love rules.
Katie Wilson-Milne: And auctions, I mean auctions do feel a little bit like the wild west, right, they are theatrical, you have people acting on impulse, it’s really exciting, bids go up 10s of millions of dollars at a time, but there is actually rules to it and regulations, so Steve what are some of those rules?
Steve Schindler: Well, there are really two sets of rules that govern auctions in New York. One is the uniform commercial code, which is a code of laws that are adopted across all 50 states that governs the sale of goods. And art is really a fancy kind of good. So, UCC Section 2328 provides a contractual framework for auctions. And it basically says that a contract is formed and a sale is complete when the auctioneer’s hammer falls. And there are some specifications in the UCC about what happens, for example, if the hammer is falling.
Katie Wilson-Milne: Right.
Steve Schindler: And another bid comes in, and the UCC says under those circumstances the auctioneer has discretion to in a sense open up the bidding again. The other thing that the UCC provides are some rules relating to whether or not there is a reserve or not. If an auction goes forward without a reserve price, then once the bidding starts, the lot can never be withdrawn. So if the bidding is $5 or $10, it doesn’t matter what the object is worth, at that point the seller is kind of stuck with it and when the hammer falls that’s it. If there is a reserve then, of course, the object can always be withdrawn from sale unless the reserve is hit.
The UCC provides for two kinds of warrantees that are important in the purchase of art. One is a warranty of title and the other is a warranty of authenticity. A warranty of title, whether you’re buying from an auction house or from a dealer, is implicit in any sale. The second warranty is a warranty of authenticity. A warranty of authenticity, unlike the warranty of title, has to be expressed. You need to say what you’re warranting in some fashion, and the way that works under the UCC with respect to an auction catalogue is if the work is listed in the catalogue as the work of a particular artist, that constitutes a warranty —
Katie Wilson-Milne: That it is.
Steve Schindler: That it is the work of that artist as supposed to other ways of formulating the catalogue description, such as something is “the school of” or “in the style of,” but whenever it is that you sell something and you list it in the catalogue as being the work of an artist, you are and the auction house is warranting that the work is authentic. Warrantees of authenticity and title carry with them a four year statute of limitations, but one of the things that the auction house does with respect to its warranty of authenticity is to provide for a five year guarantee of the authenticity of the work, so they actually give you one more year than you normally get.
Katie Wilson-Milne: Right. So if there is a problem with the work you buy at auction, you can go back to Sotheby’s or Christie’s within five years pretty much no questions asked as long as you have some backup for your concern. They’ll give you your money back, take the work, and then it’s up to them to go to the consigner or the seller to sort things out with them.
Steve Schindler: Right. And one of the things we know from working with auction houses is that they do a very thorough job on the consignment side. So —
Katie Wilson-Milne: Well they have a lot at stake.
Steve Schindler: They have a lot at stake, and so you know that they are working very diligently to make sure that the works that they are selling have title and that they are what they are purporting to be.
Katie Wilson-Milne: And even if something comes up after the contracts have been signed, after the catalogue has been out, if something comes up that one of the auction houses doesn’t feel good about prior to auction, they can withdraw their work at their complete discretion. And we have seen that a number of times that they’re really cautious, and they’ll pull something at the last minute.
Steve Schindler: Right. And it’s a very difficult decision to make, because obviously it’s not great for the consigner. In New York, the New York City Department of Consumer Affairs also has a set of rules for licensing auctioneers and regulating public auctions. And interestingly these rules were substantially revised in the 1980s, particularly in the aftermath of a scandal that hit Christie’s as an auction house, where a number of works were not in fact sold because reserves were not met, but in order to boost the market, Christie’s and its then chairman falsely reported that the works were in fact sold.
And after that happened, the chairman of Christie’s at the time was forced to resign and the Department of Consumer Affairs decided that they needed to get a little bit tougher with the regulation of auctions just to make sure that the public would feel secure in bidding at an auction. After their obligations to the vendors and the consigners, which, Katie, I know you’ll talk about a little bit, the main obligation the auction house has to the buying public is to really ensure that the bidding is fair and that the sale conditions are transparent and that everybody knows the rules.
So a few of the things that were changed at the time that these rules were overhauled was that the existence of the secret reserve price now must be disclosed, not the amount of it, but the fact that there is a secret reserve price must be disclosed. Also when we talked about guarantees before, if there is a guarantee that is given on a lot, that also must be disclosed. We know that auctioneers under the rules are never allowed to bid for their own account unless that bidding is disclosed and except up to the reserve price. We talked about chandelier bidding, for example. If there is to be chandelier bidding, it has to be disclosed, and all of these disclosures are normally made in the big auction catalogues with —
Katie Wilson-Milne: With little symbols.
Steve Schindler: With little symbols, when you look at the terms of sales, it goes through all these types of items and then indicates whether there are guarantees, whether there are financial incentives of any kind being offered to the sellers. And the idea is that this kind of information will help inform the market in their bidding. And sometimes, in fact, when these conditions change even at the last minute, the auction houses will post notices outside the auction room with any disclosures that have to be made.
Katie Wilson-Milne: So the New York City Consumer Affairs rules also require that there be a written contract for every auction between the auction house, or the auctioneer, and the seller, commissions that are charged have to be disclosed. There has to be a disclosure of any interest that the auction house or any related party has in the work, whether they own a part of the work or, you know, have an interest in a guarantee on the work. The auctioneer cannot disclaim warranty of title even though under certain circumstances the UCC would permit that, which is what Steve was just talking about, and the consigner has to make a warranty of title. So there is two ways that the buyer is protected in terms of the title.
So there is also this concept in auctions of an enhanced hammer price. And that means, in the old model, auction houses made most of their money from consigners paying them a fee. So if I owned a work of art and I went to an auction house and sold it, I would give them a percentage of what I got from the sale. For a variety of reasons I think mostly, Steve, because of competition among the auction houses to get sellers to consign amazing works, the auction houses for certain clients charge very little if anything of a seller’s commission. And now they seem to be getting most of their money from what’s called the buyer’s commission.
Steve Schindler: And the buyer’s premium is something that’s set out in the — very clearly in the terms of sale and the buyer’s premium, unlike the seller’s commission, is really never negotiable.
Katie Wilson-Milne: The amount of the buyer’s premium changes depending on the price of the work.
Steve Schindler: Right.
Katie Wilson-Milne: Right so —
Steve Schindler: As the price of the work goes up, the percentage of the premium goes down.
Katie Wilson-Milne: Goes down a little bit. And so, but it’s even beyond that now right, Steve? So now the competition is so fierce for sellers or consigners that sometimes the auction house will promise the seller a share of the buyer’s premium which is the original fee that’s supposed to go to the auction house.
Steve Schindler: Right. And that’s known as an enhanced hammer.
Katie Wilson-Milne: Or under the New York Consumer Affairs Laws a rebate. So auction houses are agents. They work for the seller technically, so they are a fiduciary of the seller, not of the buyer. Although the regulations and rules that we just talked about, the UCC and the New York Consumer Affairs Rules, really mostly serve to protect the buyer. So it’s sort of an interesting relationship in that is a fiduciary relationship. The auction house is a fiduciary of the seller, which means that they have to act in the utmost good faith and in the interest of the consigner throughout their relationship, meaning they have to take care of the consigned work, they have a duty to disclose details that influence what the work can sell for, how auction-able it is, if there are any issues that come up in due diligence about the work, then the proceeds from the auction sales are really held in trust for the seller they belong to the seller and the auction house holds them as a fiduciary meaning it can’t use those proceeds for other business purposes.
So those basic fiduciary laws exist in the auction-consigner relationship, but they’re overlaid with practices and rules that come up in the UCC and the Consumer Affairs Rules that really make the relationship one towards the buyer as well. And I think this is unique to the auction world that the auction is facing the seller as a fiduciary, as an agent, and the buyer with all these rules of disclosure that come out.
Steve Schindler: Yeah. So it’s a little bit different than a sort of gallery situation. I mean, there you have the same technical legal relationships. You have a consigner of works to a gallery is in a fiduciary relationship with the gallery owner, and the customers or the clients at the gallery are not, but you don’t have that same level of regulation governing —
Katie Wilson-Milne: Right.
Steve Schindler: The sort of practices vis-a-vis the client.
Katie Wilson-Milne: It seems to be more clear in the private sale world who is responsible to whom, that the gallery is a fiduciary of either the artist whose work they’re selling. Or if they take a work from a collector to sell, they are the agent of that collector and it’s a little more clear. In the auction world, there are all these regulations. Some of the practices that seem to conflict with traditional fiduciary-like obligations are guarantees where the auction house has an incentive to make money on its own account if it can sell work for above the guarantee, right?
Steve Schindler: Right.
Katie Wilson-Milne: And then it’s dealing with this potential third party who also has an interest in the outcome of the sale and it’s not the seller.
Steve Schindler: Right. And I think the other really important fiduciary obligation that the auction house has to the consigner of works is this question of auctionability, of looking at a work and deciding —
Katie Wilson-Milne: Yeah.
Steve Schindler: is this something that should really be in an auction or in an auction this May or November or is it something that really should be sold privately, because if you put something up for auction that isn’t right, then the consequences to the seller are pretty severe. It’s a sort of public shaming of the work and that is you know very difficult for an entity who lives —
Katie Wilson-Milne: Makes all it’s money —
Steve Schindler: On selling people’s works at auction. So, it’s a really important fiduciary duty. It’s one that I think that the auction houses try to live up to, but it does create a natural tension.
Katie Wilson-Milne: Yeah. And I think we would call these things potential conflicts of interests, the guarantee, the fact that auction houses want things to go to auction even while they’re fiduciaries of the seller and it may not make sense for something to go to auction at a certain time. And then there is the buyer’s premium, where the auction house is getting paid by the buyer and is incentivized to sell work at a certain price or a certain time so that they can get the buyer’s commission. And then what about art loans does that — how does — how do art loans fit into the fiduciary obligations of the house? How do art loans work in the auction?
Steve Schindler: So, art loans now are fairly common. They can either be made by the auction houses themselves. For example Sotheby’s has a significant loan and finance department, and what it typically does is offer advances to consigners who were selling works at an auction. So if I put my work up for auction in May, but it’s January and I’d like to have some cash in advance, typically they will loan you 50% of the low estimate. What’s problematic here is that if the work doesn’t sell at auction then you still have to pay back the loan. And — so I would say that the interfacing of the auction house and their making of the loan, that that’s not a fiduciary relationship that that is an arms length relationship no different than if you went out to a bank or to a special purpose financing company and sought a similar kind of loan.
Katie Wilson-Milne: The buyer is paying interest to the auction house too, so it’s a profitable enterprise —
Steve Schindler: Yeah and —
Katie Wilson-Milne: theoretically.
Steve Schindler: And it started out really as an accommodation business. I think it’s grown a little bit past that, but the idea would be if you were Sotheby’s or Christie’s and you are competing for prized consignments, one of the incentives that you would offer your consigners would be an advance.
Katie Wilson-Milne: And now they can make a loan, that’s in a more traditional lending format and gets some interest in the process.
Steve Schindler: Right.
Katie Wilson-Milne: It sounds like we should do a whole episode on art lending and —
Steve Schindler: Maybe we should —
Katie Wilson-Milne: art finance.
Steve Schindler: I think we will.
Katie Wilson-Milne: So another way or a way that the auction houses and the auction system gets around this potential conflict between fiduciary obligations to the seller and rules of disclosure to the buyer is in their contracts. And as is always true, having a contract that lays out the terms of a relationship is a great idea and it prevents other legal claims such as breach of fiduciary duty. So it’s pretty clear in the law that you can modify fiduciary obligations by contract. And that is just what the auction houses do, so they have consigner agreements with the seller and they have terms of sale. And both of those are contractual obligations, either between the seller and the auction house, in the case of the consignment agreement and in terms of sale between all three parties the auction house, the seller, and the buyer.
So what are the main contract terms that are laid out in a consignment agreement in terms of sale? One is the commissions to make clear who is benefitting from what that the seller knows there may be a buyer’s commission, if they have a share in that or not. That’s all laid out. So any potential conflict of interest is disclosed and accepted by both parties. The seller, the consigner makes representations and warranties with respect to clear title, the ability to sell the work or authority to sell the work if it’s an entity selling, authenticity of the work etc., and the contract will lay out the consequences to the seller if those warrantees and reps are not true.
And that’s because as we’ve just said the auction house has a duty to the buyer which is both governed by the UCC and under the auction house’s contractual obligation to take work back within five years, if there is an issue with authenticity. The contract with the seller means they can go back to the seller and sue them if need to be to recover the value they lost from accommodating the buyer.
Steve Schindler: And what happens now if the buyer doesn’t pay? There have been a couple of lawsuits that have been in the headlines lately about buyers who have made bids and then just decided not to pay.
Katie Wilson-Milne: It’s kind of incredible to me that that happens that you could be a high profile enough bidder to be at a big night auction at Sotheby’s or Christie’s, that they would vet you financially ,which we know they do, and they have to. That’s smart. And it would still happen that the buyer’s like, “no actually I changed my mind, I’m not going to pay.” So —
Steve Schindler: So then what happens if you are a seller?
Katie Wilson-Milne: So if you’re a seller, the contract says that the auction house is under no real obligation to go and collect money for the sale.
Steve Schindler: Right.
Katie Wilson-Milne: Like they’re going to do their best to sell it. It’s clear you know what reps and warrantees are being made, but if the auction house doesn’t get the money, they can’t give it to you. So the seller really does bare the risk of that. Now, both the seller and the auction house may have civil causes of action where they can go after the so-called buyer who didn’t pay for breach of contract, and that is in fact what happens. If it’s enough money that it’s worth it, the auction house will sue.
Steve Schindler: Right. And even they don’t have a legal obligation to do it, they probably in order to just to preserve the integrity of their auction and to entice other people to sell with them, they need to sometimes enforce the promises of buyers.
Katie Wilson-Milne: They could also have a 20% interest in —
Steve Schindler: That’s right too.
Katie Wilson-Milne: The sale price, so it might be — it might be financially worth it for the auction house, too.
Steve Schindler: Right. And what about do auction houses now concern themselves with money laundering and source of funds?
Katie Wilson-Milne: They do greatly. And we deal with this a lot. There is increasing oversight I think from banks with large amounts of money moving in and out of accounts. So there’s some financial regulation, which is not regulation of the art world though, which overlaps with the art world, just because it’s about movement of funds. There is also, we know, for Chinese buyers pretty strict regulations in China with respect to how much money can leave China every year, and it’s a really low number. So there are reasons that the auction house is going to want to check into the type of client they’re dealing or the type of potential buyer to make sure that they’re not going to get caught up in some kind of regulatory investigation or lawsuit or third party subpoena where they’re going to have to turn over their records and be scrutinized.
Steve Schindler: So I think it’s fair to say, and it’s not obvious, that you can’t just stroll into a high-profile auction in the evening for major pieces of Contemporary Art and pick up a paddle and then just sort of raise it away.
Katie Wilson-Milne: Indeed no.
Steve Schindler: That there is a lot of due diligence both on the seller’s side and the buyer’s side that the auction house is performing. That’s one of the things that —
Katie Wilson-Milne: Before you get the paddle.
Steve Schindler: Exactly.
Katie Wilson-Milne: Yeah. And that’s probably something that’s changed dramatically and increasingly as the art market has taken off and become you know a $60 billion industry, that it becomes harder and harder to take part in one of these auctions because there is too much at stake if you don’t pay, or it’s going to get the auction house in trouble. So the contracts that the auction houses has with the seller also protects the auction house by providing a broad indemnification from the seller. So just like we were talking about a minute ago, if something goes wrong with the sale, there is a title issue despite the fact that the seller warranted there wasn’t or there is an authenticity issue, the seller says, “I am going to cover those costs for you, the auction house, including your legal fees. I’ll refund you the work.” Now, enforcing it is a different matter, but the seller does indemnify the auction house. It doesn’t directly protect the buyer. The buyer will still go to the auction house and the auction house will protect the buyer, but they can then turn around and go to the seller. It also provides that the seller is going to pay certain expenses, that there’ll be reserve prices, what happens if the reserve isn’t met, that it will be bought in, that it will be announced publicly.
And then, too, I think the most significant contractual modifications of the fiduciary relationships, which are that the auction house maintains until the date of sale the right to rescind in its sole judgment if it thinks there is any liability possible. So it doesn’t even have to explain to the seller. It might want to, because they want to maintain that client relationship, but the auction house has the right until right before auction to pull a sale for any reason if it feels that there is some liability involved. And they do. They do do that.
Steve Schindler: Right. And sometimes it doesn’t seem entirely fair. There was a case a couple of years ago involving a consignment of a work of Katie Nolan to Sotheby’s —
Katie Wilson-Milne: Right.
Steve Schindler: And Katie Nolan had prior to the sale disclaimed authorship of the work because it had been in her view improperly conserved —
Katie Wilson-Milne: Was she the consigner or she —
Steve Schindler: No, she was not the consigner, but she was — she was —
Katie Wilson-Milne: She was the author of the work.
Steve Schindler: The author of the work and we know under the Visual Artists Rights Act that the author—
Katie Wilson-Milne: If you listened to our last episode.
Steve Schindler: Yes. That the author of a work has the right to disclaim authorship of the work if she believes that it has been damaged in a way it would reflect poorly on her honor and integrity. And in this case, Katie Nolan had viewed the work, observed that it had been improperly conserved, in her view, and publicly disclaimed authorship of the work, at which point Sotheby’s felt compelled to pull the work from the auction because it no longer could in its view give a warranty of authenticity —
Katie Wilson-Milne: Of authenticity.
Steve Schindler: That Sotheby’s could no longer make the warranty that this was a work of Katie Nolan even though it was indisputably by her hand. Sotheby’s was ultimately sued by the consigner for pulling the work in that way, and unfortunately because of the contract that you just referred to giving Sotheby’s the right and its sole discretion to remove a work from a sale anytime prior to the sale, the court sided with Sotheby’s.
And that’s it for today’s podcast please subscribe to us on iTunes or wherever you get your podcasts and send us feedback at email@example.com. And if you like what you hear, give us a five star rating. And finally we want to thank our fabulous producer Jackie Santos for making us sound so good.
Katie Wilson-Milne: Until next time, I’m Katie Wilson Milne.
Steve Schindler: And I’m Steve Schindler, brining you the art law podcast, a podcast exploring the places where art intersects and interferes with the law.
Katie Wilson-Milne: And vice versa. The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of company council in the relevant jurisdiction.
Produced by Jackie Santos.