What happens when a star artist dies without heirs, leaving millions on the line

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IN 1961, Mark Tobey, a Wisconsin-born, Basel-based painter became the first non-French artist ever to get a solo show at France’s prestigious Musée des Arts Décoratifs. It was “the one man show of the season,” wrote New Yorker correspondent Janet Flanner. She quoted a critic in the Parisian magazine Preuves, who called Tobey “perhaps the most important painter of our epoch.”

A year later, William C. Seitz, a curator of painting and sculpture at MoMA, organized a Tobey show in New York. In his forward to the show’s catalogue, Seitz classified Tobey as a precursor to the likes of Jackson Pollock. “At present,” he wrote, “it would appear Tobey is even more highly regarded abroad than he is at home.”

Nearly 60 years later, Pollock is still a household name. Tobey, who died in 1976, is rarely regarded at all.

He hasn’t had a solo museum exhibition in New York in more than 40 years, and major works by Tobey rarely come on the open market. “There haven’t been big museum shows or gallery shows,” says dealer Craig Starr. “Anyone who has great taste and sees his best work would want it, but it’s not available.”

Tobey’s reputation has begun to flicker back to life. Last year, the Peggy Guggenheim Collection in Venice held a retrospective of Tobey’s work, the first in Europe in nearly 20 years. It then traveled to the Addison Gallery of American Art in Andover, Mass. In June, one of his paintings sold for a record-breaking $1.6 million at Sotheby’s in Paris, double his previous auction record.

In October, Pace Gallery in New York opened a show of Tobey’s art that will run through Jan. 12. “It’s a very mysterious market, because things rarely come to auction,” says Joe Baptista, the Pace dealer who spent two years organizing the show. “But I’m hoping with the exhibition that beyond the market, we’re allowing people to get intimate with a large body of work and really get a sense of who Tobey is—and what his contribution is.”

Tobey was born in Centerville, Wisc., in 1890, and moved to New York in 1911. He worked as both an illustrator and an artist until 1922, at which point he moved to Seattle. By 1935, he’d developed his signature “white writing” style, which influential critic Clement Greenberg described as a “calligraphic, tightly meshed interlacing of white lines which build up to a vertical, rectangular mass reaching almost to the edges of the frame.”

It was the white writing style that made Tobey famous. Jackson Pollock saw it at New York’s Willard Gallery in 1944 and started his signature “drip” paintings a few years later.

By 1955, Tobey had reached what Seitz, the MoMA curator, called “international prominence.” In due course, Tobey moved to Basel, Switzerland, and lived in what the New York Times described as a “fortress-like old mansion.” When he died there in 1976, a Times obituary claimed that “by many, senior Europeans he was regarded as the greatest American painter since James McNeill Whistler.”

The same obituary noted that in Tobey’s later years, he was “blessed with an ideally sensitive secretary and companion,” a man named Mark Ritter who inherited the bulk of the art that was in Tobey’s Basel house at the time of his death. The rest of Tobey’s estate and papers were left to the Seattle Art Museum. (The museum didn’t respond to requests for comment).

Tobey’s primary European representation was the powerful dealer Ernst Beyeler; in New York, Marian Willard Johnson, who ran the namesake Willard Gallery, started representing Tobey in 1944. Other galleries in Europe also received work directly from Tobey, including Galerie Alice Pauli in Lausanne, Switzerland, and Galerie Jeanne Bucher in Paris.

Eventually, Tobey’s primary gallerists began to age out of the market. Johnson retired in 1970, and Beyeler became increasingly preoccupied with his museum, the Fondation Beyeler, which opened in 1997. (Beyeler died in 2010.) The last solo Tobey show at the Galerie Beyeler was in 1991.

Slowly, with no direct heirs to advocate for his legacy and no gallery devoted to authenticating and advocating for his work, Tobey’s market faced a gradual crisis of authority.

Multiple dealers tried to step in, including Achim Moeller, a German dealer based in New York, and Heiner Hachmeister, a German dealer based in Muenster, Germany.

The process of authentication — literally saying whether or not an artwork is by a specific artist — is a critical component of any major artist’s market. Auction houses and dealers are hesitant to sell an artwork without one, simply because the reputational damage of selling a fake far outweighs the benefit of whatever profit they might get from the sale.

For most of Tobey’s career, “there was no difficulty authenticating pieces,” Hachmeister explains. “Some gallerists like Beyeler worked with him very intensely, but Beyeler never did written authentications. Someone would come into his gallery, show him a piece to ask if it was authentic, and he gave a verbal yes or no.”

Both Hachmeister and Moeller have their own Tobey-related organizations. Hachmeister leads the Committee Mark Tobey, which “promotes the work of the artist in initiating exhibitions in art institutions and publications about [his] life and work.” The committee was founded in 2006, and is currently compiling a catalogue raisonné, which would be a complete, official list of every work Tobey created.

Hachmeister has collected and sold works by Tobey for more than 40 years, and says he founded the committee based on collectors’ requests. While Hachmeister never met Tobey, “I know many people who visited him when he lived in Basel,” he says. “One person on our committee was at Tobey’s bed when he died. It was a long life of friendship.”

Moeller, on the other hand, has the Mark Tobey Project, which was established in 2007.

Moeller became involved with the Mark Tobey market through Whitney Museum curator Paul Cummings, who was in the process of organizing a Tobey biography and catalogue raisonné when he died of a stroke. “When Cummings unexpectedly died in 1997 at the age of 64, his family asked me if I would take over his archive, which I did,” Moeller says.

Eventually, Moeller says people began to seek him out. “It had become public knowledge that I had this resource,” he says. “And after I had enough time to familiarize myself with the artist’s life and work, the major auction houses began asking for my opinion regarding the authenticity of works.”

The Tobey market has been dogged by accusations of forgery and fraud. Moeller asserts that “by all accounts, [Tobey] showed some signs of senility towards the end of his life,” and that many of Tobey’s late works “all look pretty atypical, or at least very bad, so there’s a gray zone in regards to determining authenticity.”

In addition, Moeller also asserts that the Tobey market is rife with outright forgeries. The problem is so acute, he says, that “one-third of the works that come our way are not by the artist, in our opinion.”

This year, he says his gallery rejected five out of 13 works that came his way as fakes. “I can only tell you that if somebody doesn’t want my opinion, it’s fine with me, and they can go to the other fellow,” he says.

The other fellow, in this case, is Hachmeister, who disagrees with Moeller on virtually every point, starting with Tobey’s purported senility. “He was clear in his head until his death,” says Hachmeister. And the so-called gray area surrounding Tobey’s late work? “It’s a rumor,” Hachmeister says. “In my life, I’ve seen around 200 or 300 pieces” from the period, all of which, he says, are legitimate.

Hachmeister says that allegations delegitimizing Tobey’s late work have been brushed aside by experts. He says that the allegations, in effect, are an attempt to ruin his reputation, and that while Tobey’s late work might not look like his mid-career work, that’s simply because Tobey was getting older and his style was evolving. “Artists who know that their life is nearly finished make a lot of things, because they want to have quantity,” he says. “It’s the same with Tobey.”

Hachmeister goes on to say that Moeller tried to join his committee. “We refused,” he says. “Because we know him. And we said ‘OK, you can come in, but you have to open your archive, and he refused to.” (“This is definitely not true,” says Moeller. “I was specifically invited by Hachmeister to join his committee but declined.”)

More seriously, Hachmeister says Moeller has encountered legitimate works by Tobey but refused to authenticate them out of personal animosity. “It is my opinion that Moeller knowingly declined to authenticate legitimate Tobey artworks,” Hachmeister wrote in an e-mail. (“I have never declined to give an opinion when an application has been submitted,” Moeller says. “I am committed to maintaining the integrity of the artist’s legacy and would never put that in jeopardy for personal reasons.”)

Moeller has allegations of his own, namely that Hachmeister has gone too far in the opposite direction and authenticated forgeries.

Moeller points to a criminal case in 2015, when an art forger named Lawrence Ulvi sold three fake works by Mark Tobey; Hachmeister authenticated one of the works based on a photograph, but then revoked the authentication when he saw it in person. Ulvi pleaded guilty and was sentenced to a year in prison. “I worked with the FBI,” says Hachmeister. “Once, I got some things from a dealer [for authentication], and when I managed to get more [information], I saw it was wrong,” he continues. “The FBI put an end to it.”

Occasionally, Moeller says, he has directly contradicted Hachmeister. “Recently, there was [an artwork by Tobey, consigned by Hachmeister] at one of the major auction houses, and I had to stop it because it was a fake. So the auction house withdrew it.”

Hachmeister acknowledges the incident and alleges Moeller was acting in bad faith. “It is a fact that I had three works at once in a Sotheby’s auction, and [initially] Moeller made positive certificates for all” of the work, Hachmeister wrote in an e-mail. “Half an hour before the auction began, he canceled two of his own certificates. It was not because of his doubts, but to damage me.”

Dealers say that all the back-and-forth allegations have dampened demand in Tobey’s market. “With artworks being pulled from auction, and [questions] about who’s representing the artist, and who’s handling the estate — I think it became very difficult for exhibitions to be organized,” Baptista, the Pace dealer, says.

“Let’s put it in a positive way,” says Stefano Moreni, the head of the contemporary department at Sotheby’s France, which sold the record-breaking Tobey painting in June. “Whenever we have a work that’s well-documented, and where the history is very clear, it has an extremely positive effect on its value.”

According to Artnet, Tobey’s work has come up publicly to auction almost 3,000 times since 1985. And even though it’s not as expensive as a Pollock or De Kooning, whose paintings can sell for tens of millions, Tobey’s art isn’t cheap.

At the Pace show, works on paper range from $85,000 to $950,000, and paintings range from $350,000 to $5 million. “There is a market for private sales that I’m aware of, with paintings that sell at $4 million to $4.5 million,” Baptista says.

There are also signs that the Tobey market is gaining steam. By the close of this year, 61 artworks are set to come to auction, according to Artnet. Several have soared past their high estimates. The work New Crescent, from 1953, for instance, had a high estimate of £150,000 ($195,000) and sold for just under £400,000 at Christie’s in London. At Christie’s New York in May, his 1956 painting Earth’s Circus sold for $187,500, above its high estimate of $50,000.

And then there was the work Autumnal Fire, from 1965, which carried a high estimate of €300,000 at Sotheby’s Paris in June and sold for four times that amount; with premium, its total was slightly less than €1.4 million. The painting, Moreni says, had a sterling provenance (one photograph shows Tobey standing next to the work) and an unusual size. “We had nine or 10 bidders,” he says. “And when you see that [level of interest], you can see you really have something outstanding.”

But Moreni is slightly less bullish about the Tobey market as a whole. “Market-wise, his works can do extremely well when all the correct data are there — good quality, extremely sound provenance, maybe its size, etc.,” he says. “It’s really reassuring to see that when you have a really good piece, collectors are there.”

It’s proof, he says, that “sometimes, collectors and the market are wiser than we think.” — Bloomberg