Sex toys, rugs and Barbie dolls: does posthumous use of artists’ work risk cheapening their legacy?

Anyone unfamiliar with the machinations of the art world could be forgiven for thinking that great art simply finds its way to the light of day. In reality, nothing could be further from the truth – particularly when it comes to the art of the dead. How we experience an artist’s work in the present is in large part down to the inheritors of their estates, who shape the way artists are understood, act as gatekeepers to their archives, preside over the authentication of works and, increasingly, are finding novel and depressing ways to cash in on the reputations of the deceased.

As with anything to do with inheritance, the death of an artist and the management of their estate has a habit of eliciting strong emotions and extreme behaviour. There are tales of extraordinary labours of love, in which confidants and relatives devote themselves to honouring the work of the dead. If it weren’t for Leonardo da Vinci’s pupil Francesco Melzi, who dedicated his life to organising his master’s papers, we would know little of Leonardo’s thoughts on the relationship between art and science.

When the Cuban-American artist Ana Mendieta – best known for creating silhouettes of her body using blood, fire, mud and other natural materials – died in New York in 1985, she was 36 years old and preparing for her first major exhibition. Her sister, Raquelín, took on the task of chasing her ambition to be “bigger than Frida”, Raquelín’s daughter, Raquel, tells me over the phone.

Raquel, who now oversees the administration of the estate, says that her mother “sacrificed her own career” as an artist to advance Ana’s standing: organising exhibitions, finding gallery representation and speaking to anyone who would listen about her work. That Ana Mendieta is far more famous in death than she was in life is in large part due to the efforts of her family.

Yet for every story of devotion and sacrifice, there are plenty more of greed. Fights over power, money and influence have created a macabre litany of protracted lawsuits.Mark Rothko’s children sued the executors of his estate , claiming they had colluded with the Marlborough Gallery in New York to “defraud” and “waste” the assets of the estate following his death, by trading his work at undervalued prices; after 15 years, the court ruled in the children’s favour.

Max Beckmann’s The Argonauts (1949/50)

Meanwhile the family of Max Beckmann, acerbic painter of life in the Weimar Republic, entered into a legal dispute with the carers of Beckmann’s widow, Mathilde, over whether they used “fraud and undue influence” to get Mathilde to sign over her assets to them before her death. The family eventually won, but the ruling spawned 11 years of counter-suits, and drained the bulk of the estate’s money.

And then there is the estate of Pablo Picasso. When Picasso died in 1973, he left behind approximately 45,000 artworks, a vast fortune, multiple heirs and no will. His family have since operated like an art-world version of the fractious and self-interested characters in the television show Succession. In the late 1990s, Picasso’s son Claude took the controversial decision to license his father’s signature to Citroën for a reported $20m. Henri Cartier-Bresson wrote to Claude accusing him of lacking respect for “one of the greatest painters”, and Picasso’s granddaughter, Marina, declared her outrage that the name of a “genius” was being used to sell something “so banal as a car”.

Contentious as it was, the Citroën deal paved the way for an era in which the guardians of artists’ estates began to view their charges as branding tools, appropriating their art for ends that have little to do with their ideas, and everything to do with turning a profit. In addition to bequeathed artworks and money already in the bank, the proprietors of estates control the intellectual property rights. This includes the moral rights, designed to protect artworks from being used in ways deemed unacceptable to their author. Crucially, it also includes the copyright, which grants the right to license the name of an artist and any aspect of their work to whoever they choose, a rich source of revenue that has given rise to a thriving and increasingly questionable industry.

Citroen picasso

Not so long ago, licensing deals were largely limited to the reproduction of artworks in books and on museum gift shop items. But today, it has become par for the course to use artworks to sell all manner of limited-edition merchandise. An industry of lawyers and agents has sprung up, working with estates to profit from what are euphemistically known as “brand collaborations”, using the art of the dead to sell everything from Uniqlo T-shirts and designer handbags to vodka, collectible dolls, charm bracelets, carpets and sex toys.

According to the lawyer Michael Ward Stout, who represented the interests of Salvador Dalí until his death in 1989, and now works for living and dead artists, this flourishing trade signals a shift in attitudes among art collectors. While in the past it was believed that overexposure could jeopardise the market for an artist’s work, these days, when collectors “go into the street and see headscarves and tote bags” decorated with art by an artist whose work they own, “it builds their confidence that they’ve invested money in something strong”.

Speaking from the Hamptons, Stout says that, last year, the estate of Keith Haring – which is a client – made $10m from licensing deals alone (a portion of which goes towards charitable causes, in accordance with Haring’s wishes). He tells me that his firm issues “four or five” licensing contracts a day, and that it’s not unusual for living artists to hire brand managers to make their practices more attractive to businesses.

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The Keith Haring x Alice + Olivia fashion range launch in 2018.

In the UK, the US and the EU, copyright lasts for 70 years after an artist’s death. This provides estate owners with a finite amount of time to squeeze as much profit as possible out of the deceased’s works, after which anyone is entitled to make as many T-shirts or phone cases as they please. While estate owners can sue anyone they believe is misusing an artist’s work, there is nothing to stop them from doing the same. Scholar of intellectual property law Enrico Bonadio says: “There are children of famous artists who are enforcing both economic and moral rights in a way which might be considered objectionable or controversial, but they are the owners of such rights by law, so there is nothing we can do.”

In recent years, the estate of Jean-Michel Basquiat, run by the artist’s two sisters since the death of his father in 2013, has taken the possibilities of licensing to astonishing lengths. During his lifetime, the young American artist achieved considerable commercial and critical success. His neo-expressionist paintings, which effervesce with references to black cultural history, street art and his own symbology, became hot property during the 1980s art boom. When he died aged 27 in 1988 from a heroin overdose, he left behind more than 600 paintings, and he has since acquired the kind of revered status attached to those who live fast and die young. Elements lifted from his paintings now appear on everything from Barbie dolls to luxury skis, socks and Coach handbags, with brands using what has become Basquiat’s reputation as a prophet of “urban culture” to burnish their own identities.

If being labelled a sellout was once seen as a stain on an artist’s legacy, increasingly it has become a goal. There is something deeply dispiriting about a culture in which yesterday’s avant garde is today’s designer handbag collaboration, the work of its brightest stars reduced to logos plastered across luxury products. While such merchandise may make the art more visible, rampant commercialisation hardly constitutes the democratisation of art.

“Brand collaborations” tend to bulldoze over the artist’s intentions, taking advantage of the fact that they are no longer around to instrumentalise their work in any way the beneficiaries see fit. A 2021 advertising campaign for Tiffany jewellery – starring Beyoncé, Jay-Z, a 128-carat diamond and the 1982 Basquiat painting Equals Pi – exemplifies just how far companies are willing to go. When the campaign was released, a representative for Tiffany said the painting “has to be some kind of homage” to the brand, as the colour turquoise it used “is so specific”.

Not everyone is happy about the licensing gold rush. Basquiat’s former schoolfriend and collaborator Al Diaz told me that the estate has “squeezed every ounce of life” out of Basquiat’s art. Diaz had a run-in with the estate over the use of “SAMO©” (short for “same old shit”), a tag he and Basquiat used as teenagers when they scrawled cryptic, anti-capitalist statements around New York. He says he issued a cease and desist when he discovered the estate had licensed “SAMO©” tags for use on socks, and that the socks were removed from sale. (The Basquiat estate did not respond to requests for comment.)

“Have you seen the Ruggable collection?” he says, referring to a line of carpets and doormats on sale for between £119 and £799, covered in motifs taken from Basquiat’s paintings. “You can literally wipe your feet on it.”

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