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Art Market Regulation: Does consumer discrimination exist in the art world?

by Brian Sherwin on 2/4/2013 10:01:44 PM

This article is by Brian Sherwin, regular contributing writer for FineArtViews. Brian Sherwin is an art critic, blogger, curator, artist and writer based near Chicago, Illinois. He has been published in Hi Fructose Magazine, Illinois Times, and other publications, and linked to by publications such as The Huffington Post, The Boston Globe, Juxtapoz Magazine, Deutsche Bank ArtMag, ARTLURKER, Myartspace, Blabbermouth, Milwaukee Journal Sentinel, Conservative Punk, Modern Art Obsession, Citizen LA, Shark Forum, Two Coats of Paint, Vandalog, COMPANY, artnet, WorldNetDaily (WND) and Art Fag City. If you want your blog posts listed in the FineArtViews newsletter with the possibility of being republished to our 22,000+ subscribers, consider blogging with FASO Artist Websites.  Disclaimer: This author's views are entirely his/her own and may not reflect the views of BoldBrush, Inc.. You should submit an article and share your views as a guest author by clicking here.

There has been a lot of buzz lately about the business ethics / practices of art galleries -- and the fact that many have an exclusive client base. It has been suggested that the various levels of the art market should be more financially transparent. In fact, some critics feel that the United States art market needs to be regulated by the government in order to halt what has been described as rampant consumer discrimination. I can't help but wonder if these arguments will eventually be applied to self-representing artists and the way they conduct business.


My interest in this topic was spurred further after reading opposing positions from two notable art critics. Art critic Robert Storr recently challenged the business practices of art galleries, stating, "You can't deny someone the opportunity to buy something if the price is posted and the work is unsold". Robert Storr's statement spurred a response from art critic / gallery owner Mat Gleason. Gleason stated, "In actuality, galleries can deny a purchase, and they do all the time for a variety of reasons.". He added, "If a big collector has an appointment to visit my gallery on Saturday to look at an artist's work, I am not selling that work on Friday to someone who might try to flip it on eBay next month.". Gleason stressed his concern about what he describes as 'slimy art-flipper's' and warned about art market 'parasitic opportunists'. Gleason feels that a regulated art market -- a more consumer friendly art market -- would harm art galleries AND artists.


I understand Mat Gleason's frustration. However, I don't agree with how quickly he stamps art collectors who are not 'big collectors' as eBay 'art-flipper's' and 'parasitic opportunists'. His statement implies that an art collector who lacks social status (or extreme wealth) is not capable of simply loving art --- it suggests that little collectors, if you will, lack integrity. My 'gut' tells me that Gleason used a poor choice of words to describe his position on the issue. BUT his statement -- fueled by generalizations and stereotypes (the 'big collector' is good for the art market... the 'little collector' is not) -- reveals some of the problems facing the various levels of the art market. This attitude is why these issues are being debated in the first place!


I will place art galleries under the scope before tackling how these consumer discrimination concerns may apply to self-representing artists:


Art galleries tend to be privately owned, for-profit businesses. Businesses, in general, DO have a limited right to exclude (not serve customers). For example, I'm sure we have all seen signs that declare 'No shirt, No shoes, No service' at convenience stores -- that form of exclusion is legal. A gallery can refuse to 'serve' a customer for the same reason. Furthermore, a business can exclude customers based on distance -- you can order a pizza from a family-owned restaurant... but the owner may refuse to delivery it based on distance. Art galleries have that same right in regard to shipping artwork if that service is available. These examples are basic forms of legal exclusion.


Unfortunately, legal forms of exclusion are sometimes used to ‘hide’ what would likely be considered illegal discrimination in a court of law. Judges know this. Lawyers know this. Customers know this. Refusing to sell to a customer can potentially ‘fuel ‘extremely negative implications. If the art buyer can afford the artwork… why refuse the transaction? A gallery owner could easily face that question in court -- I don’t think the ‘our past buyers are ‘big collectors’’ answer would suffice in a situation like that... especially if the customer is a member of a protected group.


Note: There are many ways for an art gallery to refuse a customer... there are also many ways that a gallery -- as a business -- can end up in a state of legal turmoil due to that choice. It all boils down to specific factors concerning the customer and how he or she interprets the refusal.


Example Scenario: Let us imagine that the art gallery in question has a long history of selling to art buyers who happen to be white. If the art gallery refuses to sell artwork to a customer who happens to be black… could that choice -- when compared to the sales history of the gallery -- be due to the race of the customer? The truth may very well be that the gallery owner is NOT thinking in terms of race -- he or she may not be committing an act of racial discrimination (at least not intentionally). BUT on paper his or her refusal appears suspicious based on the race of past customers.


With the above in mind, the choice to exclude should never violate the Federal Civil Rights Act. In other words, businesses (that includes most art galleries) can't exclude based on race, color, religion, or national origin. Additionally, many states have passed their own Civil Rights Acts that businesses must comply with. Point-blank, an art dealer could easily land himself or herself in hot water if he or she refuses to sell artwork to a customer who happens to be black if he or she ends up selling the same piece to the next customer... who happens to be white. It can become a slippery slope at that point. There are also laws concerning arbitrary discrimination against customers who are not directly protected by the acts that I mentioned earlier. Private art gallery owners are not above the law -- and they could easily be 'snagged' by these various laws... even if discrimination was not their intention (if it looks like discrimination on paper… it will likely be considered discrimination in a court of law).  


Customer or Visitor:


Many private art gallery owners claim that they can 'pick and choose' customers due to the fact that their business is a private business. In other words, the gallery owner may argue that a visitor to the gallery is not a customer just because he or she was allowed entrance into the privately owned building. This is a 'paper tiger' defense if you consider the number of other types of 'private businesses' that have been hammered in court over similar attitudes... and lost. Again, private art gallery owners are not above the law.


Question: What is the point of exhibiting artwork at a commercial art gallery?


Answer: To sell art.


The point of an art exhibit in this context -- even if prices are not listed publicly -- is to sell art. The gallery is presenting products that have monetary value. That is the basic business model of a commercial art gallery... art is displayed and sold. I don't think anyone will argue against that observation. Thus, it can be lawfully argued that if artwork is offered for purchase (which is the reason a commercial gallery presents exhibits, right?) each gallery visitor is technically a potential customer regardless if the gallery wants to acknowledge visitors as customers or not.


A lot of this boils down to the concept of 'public access'. 'Public access' becomes an issue for commercial art galleries (private or not) when art exhibits that are open to the public take place. At that point the guaranteed right to public access, based on public accommodation (of which a place of 'exhibition or entertainment' is clearly defined in current law. An art exhibit could be considered both), may chip away at the right gallery owners have to exclude customers legally. This is due to the fact that courts tend to side with the constitutional right of customers over the individual liberties of business owners. After all, we are not talking about non-profit museum exhibits... we are talking about businesses that are strictly focused on selling art.


I'm not an expert on the law. That said, I do think that Mat Gleason and others need to consider current consumer law and how it can be applied to the business of art. Furthermore, I wonder if artists – specifically self-representing artists -- should think deeply about these issues and how they may apply to their business model. If a customer is refused service -- in this case the opportunity to purchase artwork... IF the artist clearly markets his or her artwork (be it on a website, at art fairs, at co-op spaces...etc.) -- there needs to be a legitimate business reason for that decision. In my opinion, the artist should document the reason for the refusal in some way just in case it needs to be referred to at a later date. As the old saying goes... it is better to be safe than sorry. Anything less may expose the artist to being legally 'bombarded' depending on the temperament of the denied customer.


In closing, I want to know what YOU think about these issues. Should art dealers AND artists place more focus on consumer rights? Do you feel that art dealers and artists should be selective when selling artwork? OR should art dealers and artists strive to be more inclusive marketing-wise? Should transactions be based on the social status of the potential buyer -- for example, would you refuse a 'little collector' at an art fair if you heard that a 'big collector' planned to stop at your booth? Is it unethical to 'hold out' until the 'big collector' arrives? Consider this an open debate about consumer discrimination within the art world.


Take care, Stay true,


Brian Sherwin


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Topics: Art Business | art law | art marketing | Brian Sherwin | FineArtViews | sell art | selling art online | selling fine art online | Think Tank 

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Erlene E C Flowers
Dear Brian,

I am glad that you have tackled the topic, of discrimination howbeit unwillingly. Your topic is a becoming a lot bigger in the arts than one would think. The practice of not selling a piece or not allowing application to a gallery by artists of varied ethnicities is becoming more perceptible as discriminatory and representative of what we have not “overcome”. When in effect; in my many experiences, we are living a new era of discriminatory practices being filtered by several new names. I am only going to address a couple incidents here.

I use FASO and live in a very under balance diversified community. I have perceptibly noted in the last 5 years a very REAL difference in selling and application processes. I have had a piece not sold by a gallery to a buyer while on display. I was told that the piece almost sold by the gallery. My work had been selling average to well at this gallery. I had invited, the buyer, who had contacted me via FASO to the gallery opening. When I followed up with the buyer, he informed me that he was told by the gallery that the piece was as NFS, which was not true. This gallery only accepted works for sale Fortunately, for me, he still wanted the piece. The buyer was a collector, a minority physician. Interesting filter!

Shortly after, the end of the show, I was told by the gallery that my work was not selling and was asked to with draw my works-which had been removed from the walls and put into storage when I arrived.

I spent some time analyzing, what I had done differently. Finally, I saw the difference. I had added my picture to my Artist's Statement. Over the last three years, I have experienced more of these kinds of subtle practices with incidents growing closer together. I would like to say that this is a fluke.

However, recently, I accompanied one of my friends to a gallery three hours away to deliver some work to a gallery that she had applied to and been accepted. She had discussed her good fortune and mentioned that this owner did not want a contract. I suggested that she take a list of her things and get him to sign off in acknowledgement that he had her work. As pre arranged, I did not go into the gallery with her. I walked around the town checking out the sites. About an hour later, she called me on my cell and said that the owner wanted to meet me! He had looked at my site on FASO, per her request, and had made one comment. Opportunity, right, not at all.

I politely and enthusiastically acknowledged the owner, and I talked about his wonderful site. He rattled on about my friend's work, which I supported with the appropriate nods and smiles. I asked if I could look around. He decided to take me on the same tour that he had shown my friend. He launched into all the well-known, local artists that he represented. It was many, and he had many, many pictures in storage. I mentioned that I knew some of the artists and looked at his collections. I spent my time being as charming as possible. We talked about, his tracking system, his hanging system, his recruitment system.

Finally, he could not stand it any longer. I felt like I had stepped back into time and did everything that I could to maintain acceptable decorum.

He launched into how he wanted his applicants to apply. Notice, he did not invite me to apply or even hint that I should consider applying. He outlined the dpi, size, and what he would immediately reject. I commented that it was really great that he would share this since many gallery owners did not. I acknowledged how gracious that he had been with his time, and how much I enjoyed meeting him. We left.

Oh yes, the remark- he made to my friend ”" was on size, and implied subject matter. My opening page has my picture on it along with a triptych, which has an Afro centric theme. Admittedly, he did not get past the first page. I have sold my art for many years, and in the last five years, I have experienced more borderline discriminatory rejections that are not unlike the 70 and 80s when I applied to galleries and shows. I never take a rejection personally in this field.

The arts used to be more fully integrated, diverse and open ”"I do not feel that warm fuzzy now! We are, in my opinion, sliding backwards in our Americanism and being lead by a Congress, bought and paid for by big money, who is inadequate role models who lack assembles of diplomacy. The arts and private galleries are just following what is being modeled. Galleries could not take this stance, if it not endorsed by the direction that our nation is headed.

Will I eventually apply to this gallery? Yes, maybe, I might with neutral subject pictures, which have won awards and are pre evaluated by a couple of other gallery owners or artists who show at this site.

It is not only by ethnicity that artists are being discriminated against. I suspect that a show in my area, now that it has gained steam and is becoming more prominent and prestigious, is beginning to reject artists (that were allowed in when the show was new), on the basis of AGE. I have come across several artists who have told me they were rejected from the show - and the ONE thing they all had in common was that they were older - most being in their 50's or older. I am going to check the show out this year - and try to find out the AGES of the artists who have been accepted in the show. From there, I confess I don't know what, if anything, I can do with the info if it turns out that there IS clear age discrimination - perhaps someone out there could tell me?


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