The Rothko Tangle

The most labyrinthine art trial in decades goes into summer recess this week. Since it began in mid-February in Manhattan, the "Rothko case" has involved seven different teams of lawyers, produced more than 8,000 pages of transcript and run up a probable $500,000 in costs--and the case for the defense has not yet begun. From the plaintiffs' side, at least, the cast is Dickensian: the suicide artist, the wronged daughter, a brace of crooked or bungling trustees and a villain--Machiavelli and Scrooge McDuck rolled up in one banker's suit.

That candidate appears to be Francis Kenneth Lloyd, founder of Marlborough Gallery Inc. and the most powerful international art dealer to have emerged since World War II (TIME, June 25, 1973).

After Abstract Expressionist Painter Mark Rothko opened his veins in his Manhattan studio four years ago, his estate of 798 paintings was divided between his two children and a foundation for struggling older artists. His dealer was Marlborough. Marlborough immediately signed a contract with the estate's executors (one of whom was Marlborough Treasurer-Secretary Bernard Reis) to buy 100 choice Rothkos outright for $1.8 million, payable without interest over twelve years--an effective average price of $13,000 apiece at a time when, the plaintiffs allege, Rothkos were going on the open market for between $40,000 and $60,000.

Moreover, the remaining 698 pictures were to be sold on consignment, and Marlborough was to get a 50% commission, a huge cut in view of Rothko's international fame. Since then, 70 of the consigned pictures have been sold.

The plaintiffs--Rothko's daughter Kate, 23, and son Christopher, 10, together with the New York state attorney general--brought suit in the fall of 1971. They claimed that the artist's three executors have conspired with Marlborough to "waste the assets" of the estate through "self-dealing." They also allege that some of Marlborough's consignment sales were not bona fide but rather a way of shunting the paintings through other companies at a low first price, so that the estate's share of the sales would stay low.

For example, two Rothko paintings were sold to the Liechtenstein firm of Galleria Bernini (two of whose directors also sit on the boards of four Marlborough shells). The Galleria paid $140,000 for them, of which the estate received $84,000. But Mrs. Paul Mellon wanted those very Rothkos so ardently, Lloyd testified, that Marlborough bought them back from Galleria Bernini for a whopping $420,000 and then resold them to her for that amount. "Since the price was so high," Lloyd said with benign altruism, "I didn't want to profit from it." Yet if the sale to Mrs. Mellon had been direct, the estate would have received $210,000.

Lloyd began as the insouciant star of the courtroom. The atmosphere be came heavier last week as the plaintiffs' attorney Edward Ross pressed on with the contention that Marlborough, anticipating a preliminary injunction barring further sales on consignment without the court's permission, had cooked up some complex deals to remove 35 Rothkos from the court's jurisdiction. Not so, said Lloyd, producing documents to show that in January and February of 1972 -- months before the injunction was is sued in June -- he had sold the 35 Rothkos to four wealthy collectors, including 20 to Italian Industrialist Count Paolo Marinotti.

A funny thing happened, however, to 14 of Marinotti's paintings. They were included in a Rothko retrospective that toured Europe, finishing on May 8 at the Musee d'Art Moderne in Paris. But when the show closed, the Rothkos were shipped back to Marlborough in New York, rather than to their alleged owner Marinotti in Europe.

Endless Speculation. The plaintiffs' next assertions were yet more startling. Rothko's much-traveled paintings went almost immediately back to Europe, this time by costly air freight. Ross thinks it significant that they were rushed back directly after the injunction against sales went into action on June 23. By June 29, Ross claimed, 19 of Marinotti's 20 Rothkos, among others, were in a warehouse in Zurich where, if they had not yet been sold, they would have been out of U.S. jurisdiction. In Ross's view, this haste suggests an intent to de fraud. In Marlborough's, it is merely evidence of a brisk desire to keep the decks cleared by moving sold commodities along. At the trial, Lloyd produced car bons of several documents substantiating his side of the story and contended that the Rothkos' arrival in New York was caused by the blunder of someone in the Paris museum ("I'm not responsible for the French government making a mistake"). Other discrepancies of documents and dating, said Lloyd, were the fault of "stupid secretaries."

Till it reconvenes, the Rothko trial will furnish the art world with endless speculation. But in the meantime two things seemed certain: the trial will drag on for months after the defense opens in August, and when all the legal costs are paid, there could be precious little left for either Rothko's children or the artists he wanted to help.

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