By Atreya Mathur

The story of Robert Indiana’s Estate is a fascinating one: full of art, drama, lawsuits, LOVE,[1] and maybe HOPE[2]. One of the best known American Artists, Indiana, who became a leading figure in the Pop art movement in the 1960s and called himself an “American painter of signs,”[3] left behind more than just his iconic prints and sculptures. He left a will indicating what he wished would happen to his art and other worldly possessions. For over three years after his death, the Indiana Estate has been involved in competing allegations of copyright infringement, financial mismanagement, fraud, elder abuse, and more.[4]

Indiana died on May 19, 2018, at age 89 on Vinalhaven Island, 15 miles off Rockland, Maine. Indiana’s Last Will and Testament, dated May 2016, almost two years to the day before the artist’s death, directs the distribution of his assets, estimated to exceed $25 million,[5] including a cache of artwork in his residence and a former Independent Order of Odd Fellows lodge known as the ‘Star of Hope.’[6] Indiana gave his caretaker, Jamie Thomas, power of attorney, and appointed him as the executive director of a future museum to be established at Indiana’s home- ‘Star of Hope.’ The museum’s mission will be the “continued preservation, promotion, exhibition and use of [his] collection and real estate,” with the foundation being the sole recipient of any future royalties from the artist’s work.[7]

One of the greatest challenges when an artist passes away is preservation of legacy and planning of estate.[8] This is even true for someone of Indiana’s stature. By contemplating and leaving a will, many believe their final wishes will be honored according to their specific instructions. But as Indiana’s case illustrates, there are plenty of legal avenues for contesting a will, in part or in total. Whose wishes should be honored and upheld by a court when a will is contested? How important is having a will for an artist in legacy and estate planning?[9] While the Center for Art Law is focusing on these questions in a prospective manner through its Estate planning clinic, this article looks at the lessons that the Indiana saga offers to artists, their heirs, would-be executors and Trust & Estate attorneys.

In this instance, Morgan Art Foundation, which represented Indiana for more than 25 years and owns the copyrights to his work, challenged the disposition of Indiana’s Estate since he lived alone and left all his art, archives and belongings to the Star of Hope.[10] The decided cases, pending lawsuits, and continuous battles in court relating to his Estate highlight the intricacies and complexities of artist contracts beyond the life of the artist, the significance of having a will and the tremendous burden placed on the executors of a will.[11] Quiry, whether more lucrative estates offer greater opportunities for challenges and redistribution of assets.

Background and History

Indiana’s Estate, administered by James Brannan, which is valued upward of $100 million,[12] has been entangled in a plethora of lawsuits. As a background, the first lawsuit that began it all was filed by Morgan Art Foundation (MAF) the day before Indiana’s death on May 19, 2018, when Indiana was 89 years old. It alleged that Thomas, along with Indiana’s art publisher, Michael McKenzie, took advantage of the ailing Indiana towards the end of his life, going so far as to produce-and sell-works in the artist’s name. Brannan stated he believed that Thomas and McKenzie may have sold works either by or attributed to Indiana without properly compensating the artist when he was alive, to the tune of as much as $50 million; the MAF suit claims copyright infringement for those sales. However, Brannan alleges Morgan Art failed to properly pay the estate royalty payments from profits made off sales of Indiana’s work for the last several years, and the estate wants a full accounting. Further, Morgan Art also argued that Thomas is not qualified to establish or run a museum of the kind Indiana stipulated in his will and proposes that a group of specialists be gathered to manage Indiana’s legacy and collection. As it was written in Indiana’s will, both Thomas and Brannan were named as the designated museum’s executives.[13]

The crux of this case stems from the fact that Indiana failed to copyright or trademark “LOVE” in the 1960s, which therein created decades of financial and other frustrations. He moved to Maine to escape the New York art scene, which he felt underappreciated him.[14] His partnership with Morgan Art Foundation began in 1999, when he signed contracts which gave the private company the rights to “LOVE” and other works and began an aggressive campaign to create sculptures in bronze, marble, and other materials.[15]

In 2008, Indiana signed a contract with McKenzie, an art publisher and his company, American Image Art (AIA), to produce “HOPE,” which debuted as a stainless-steel sculpture at the Democratic National Convention in Denver. Indiana’s growing partnership with McKenzie created a conflict with Morgan Art over copyright ownership and infringement of the works, prompting the company’s representatives to file a suit against Indiana, McKenzie and Thomas, Indiana’s personal caretaker.

After Indiana died, James Brannan, who was Indiana’s attorney and estate representative, became a party in the suit.[16] Morgan Art accused McKenzie and Thomas of isolating Indiana from his friends while making and selling unauthorized work under Indiana’s name. Morgan filed a second suit that fall, alleging elder abuse while Indiana was alive and mismanagement of his estate after he died. In response, Brannan filed counterclaims that he said proved Morgan Art and its advisor, Simon Salama-Caro, had underpaid Indiana for years, and accused Morgan of purposefully providing Indiana with incomplete invoices.[17]

Brannan and Thomas also were involved in a lawsuit, which they settled in 2021. In addition to the continuing case between Morgan Art and McKenzie, the Estate and McKenzie are involved in legal arbitration over McKenzie’s right to continue making and selling “HOPE,” as well as McKenzie’s claims, that the estate owes him $3.5 million in royalties that McKenzie said he paid Indiana, but Indiana didn’t earn. He paid Indiana $10 million over a decade.[18]

  1. Morgan Art Foundation Limited v. McKenzie et al: Copyright Infringement, Forgery, Arbitrability

The Morgan Art Foundation, or MAF (“Plaintiff”) filed a suit in 2018, against Michael McKenzie; American Image Art; Thomas and James Brannan (“Defendants”).[19] MAF also defended against counterclaims asserted by the Estate and (separately) by McKenzie, who also crossclaimed against the Estate and Thomas. Although MAF was the sole plaintiff in the case, the Estate’s counterclaims named MAF advisor Simon Salama-Caro and the affiliated entities as additional counterclaim-defendants. [20]

MAF essentially holds all of Robert Indiana’s copyrights exclusively, as per the contract between the parties in the 1990s.[21] The cause of action in the suit was copyright and trademark infringement based on contracts entered by Indiana’s Estate Salama-Caro on behalf of MAF. MAF also alleged on multiple accounts that the forgeries and inauthentic Indiana works in the market traced back to Thomas, McKenzie, and AIA, which was producing art under an agreement between Indiana and McKenzie. Since MAF owns the copyrights, it said that it was partially deprived of income that would have gone back into their accounting for the Estate.[22] In an amendment to McKenzie and AIA’s answer submitted on April 27, 2020, Defendants also alleged fraud, and claimed the iconic “LOVE” and “USA FUN” were in the public domain because Indiana failed to register the copyright for the same.[23] The co-defendants alleged the contracts between Indiana and McKenzie also have arbitration clauses. Therefore, if the court deemed the contracts enforceable, the Defendants argued that the dispute should be resolved through arbitration.[24] In McKenzie v. Brannan[25], the Court also considered whether the matter should be heard by the Court or by the American Arbitration Association (AAA) given the contracts in the case. There was a 2008 Agreement that stated the disputes were to be decided by the AAA, and a 2019 Term Sheet that did not create arbitration. The arguments from the parties revolved on whether the original contract was supplanted by the 2019 Term Sheet. The Court ultimately concluded that it was a norm that the Court decides whether the dispute would be heard by the AAA or not.[26]

In Case No. 18-CV-8231, filed on September 11, 2018, all five plaintiffs brought fresh claims against the Estate, which then asserted new counterclaims.[27] The dispute between plaintiffs and the Estate centers on two contracts between MAF and Indiana executed in 1999, as well as certain addenda and modifications thereto. According to plaintiffs, Indiana and the Estate breached those contracts, and Thomas and McKenzie tortiously interfered with them. According to the Estate, plaintiffs breached the same contracts, and Salama-Caro violated the fiduciary duties he owed to Indiana.

The parties’ claims, counterclaims, and crossclaims are described in more detail in several prior decisions in these cases[28], including Morgan Art Found. Ltd. v. McKenzie, 2020 WL 5836438, at *1-2 (S.D.N.Y. Sept. 30, 2020) (denying plaintiffs’ motion for spoliation sanctions against the Estate and Thomas); Morgan Art Found. Ltd. v. McKenzie, 2020 WL 3578251, at *1-3 (S.D.N.Y. July 1, 2020) (granting McKenzie’s motion to compel production of a settlement agreement between the Estate and Thomas); Morgan Art Found. Ltd. v. Brannan, 2020 WL 469982, at *1-7 (S.D.N.Y. Jan. 28, 2020) (granting in part and denying in part plaintiffs’ motion to dismiss the Estate’s counterclaims in No. 18-CV-8231); Morgan Art Found. Ltd. v. McKenzie, 2019 WL 2725625, at *6-20 (S.D.N.Y. July 1, 2019) (granting in part and denying in part various motions in No. 18-CV-4438, including plaintiffs’ motion to dismiss the Estate’s counterclaims in that case).

Current Stage

More recently, on December 10, 2021, a memorandum was filed by MAF against McKenzie in the U.S District Court for the Southern District of New York. MAF accused McKenzie of exploiting Robert Indiana and forging his works, as well as allegedly lying under oath about evidence in his possession since litigation began, and hiding evidence including documents, paintings, artwork and even a monumental sculpture from discovery. Morgan Art claimed McKenzie “made a mockery of the discovery process” and “repeatedly thumbed his nose” at the court.

On March 1, 2022, the Court heard oral arguments from both parties regarding pending sanction motions. The arguments from both sides were primarily with regard to the failure to comply with the orders by the Court to produce discovery. The Judge stated that even the mildest sanctions imposed would result in 1) the Defendants having to produce the documents and 2) the Defendants would have to cover the cost of discovery production (which is mandatory as per Rule 37 A and B, where the prevailing party gets costs.) The Judge further stated that it would not be a “cheap way out” as attorneys are expensive. After the oral arguments were heard, there was an off-record settlement conference between the parties.*

As of date of publication, this case is still pending in court between MAF and McKenzie, while the other cases with other parties in the dispute have been separately considered and even settled out of court.

*The oral arguments were heard by the author in the Court of Hon. Barbara Moses, United States District Court, Southern District of New York. (Courtroom: 20 A on March 1, 2022.)

  1. Morgan Art Foundation Limited et al. v. Brannan: Validity of Contracts

As mentioned above, on September 11, 2018, a second lawsuit was filed by MAF; Simon Salama-Caro; Shearbrook (US), LLC; Art LLC; and RI Catalogue Raisonne LLC (“Plaintiffs”) against James Brannan, attorney and estate executor (“Defendant.”)[29] Indiana’s Maine-based attorney, James Brannan, was named as executor of the artist’s Estate with the expectation that he oversee the transfer of Indiana’s assets to the Star of Hope foundation. The cause of action in this case was breach of contract and unjust enrichment by the Estate. Brannan then launched his own legal battle against the Morgan Art Foundation, filing a counterclaim that challenged the validity of the contracts that the company had with Indiana and its ability to undertake future projects on his behalf. On January 28, 2020, the SDNY dismissed in part Brannan’s counterclaims.

MAF alleged the Estate undermined the contracts and claimed the contracts were valid and enforceable, and therefore the Estate must abide by them. If the contracts were unenforceable, MAF claimed, then MAF would lose the rights they hold in Indiana’s work.

In response, the Estate alleged that the contracts were unenforceable on multiple claims, out of which only one claim survived.[30] The Estate claimed that Salama-Caro, while acting as a double agent for both Indiana and MAF, had allegedly breached his fiduciary duty for his actions in self-dealing.[31] The court treated the contracts as enforceable and binding after Indiana’s death.[32]

Current Stage and Settlement

In September 2020, a settlement was reached between the Star of Hope Foundation and Morgan Art Foundation.[33] The settlement established a partnership between Morgan Art and the Star of Hope for years to come. Part of that included overhauling the 150-year-old former Odd Fellows Lodge on Vinalhaven where Indiana lived and worked, and turning the home into a museum to display his art once the litigation is resolved.[34]

Morgan Art and Brannan also announced that a settlement was reached in a joint statement.[35] The parties would not disclose the terms of the agreement but filed paperwork to dismiss the case in the U.S. District Court for the Southern District of New York. Morgan Art’s attorney, Luke Nikas stated that “This settlement is an excellent outcome for all involved,” and Brannan commented, “Morgan Art Foundation is thrilled to partner with Indiana’s nonprofit foundation, the Star of Hope, in continuing its decades-long effort to promote and preserve the work of Robert Indiana. The future is bright for the market and legacy of Robert Indiana, and the estate is pleased to have helped create this success.”[36]

Under the agreement, Morgan dropped its lawsuit against the Estate and Indiana’s caretaker but not against the art publisher, McKenzie, the case of which, as mentioned above, is still pending.[37]

  1. Estate of Robert Indiana in the Maine Probate Court, Knox County: Attorney Fees

As part of this long-running and complicated legal battle, the Maine Attorney General’s Office also filed a suit against the Indiana Estate for overpayment of personal representatives and attorneys and claimed breach of fiduciary duty.[38] The Maine Attorney General had accused Brannan of paying himself and other lawyers for the Estate excessive amounts—an allegation that Brannan denied.[39] The Attorney General sued the representative in November 2020 to reduce the fees he had paid himself and his law firms related to those lawsuits, which totaled more than $6 million at that time. The motion contended that two New York law firms were together overpaid $3.3 million and that two Maine law firms were overpaid by about $240,000. It also contended about $400,000 of the nearly $1.8 million billed by the personal representative was excessive.[40]

In 2021, the Knox County Probate judge ruled that the Maine Attorney General had the legal authority to demand a detailed accounting of the estate of Robert Indiana. The Estate incurred $8.5 million in legal expenses and associated fees since Indiana’s death in May 2019.[41] At the time, the Assistant Attorney General Linda Conti stated that “The Estate has little to no cash and has been selling valuable works of Mr. Indiana’s art to pay those fees. The Attorney General remains concerned that the very existence of the Foundation is threatened by the liquidation of Estate assets and therefore again urges close review of all fees to ensure that only those fees that are strictly necessary and reasonable are allowed to deplete Estate assets meant for charity.”[42] By the time of the settlements, the combined fees exceeded $10 million.

Current Stage and Settlement

A settlement was reached earlier in 2022 where the lawyers for the Robert Indiana Estate agreed to pay out more than $2 million to the Maine Attorney General’s Office[43]. The State originally asked for $3.7 million in legal fees to be returned out of more than $8 million that had been paid to seven law firms. Aaron Frey, the Maine Attorney General, said in a statement, “Every dollar going unnecessarily to pay lawyers and the Personal Representative was another dollar unavailable to the charity to fulfill its mission and Robert Indiana’s vision.”[44]

Conclusion

These lawsuits caution one to understand and familiarize themselves with estate planning. It becomes necessary for artists to consider writing a will and setting up an estate. Legacy becomes one of the most crucial components to protect an artist after death, and ensure that their art is remembered, and the artists’ story is retold, fondly, for years to come. How unfortunate would it be to remember the legal battles drawn from the art rather than the art itself? The court battle(s) surrounding the Indiana Estate have been long-drawn and rather complicated, with multiple plaintiffs, defendants, claims and counterclaims. It has been almost four years since the first suit was filed, and millions of dollars have been spent on legal fees since Indiana’s death, with funds that should have gone to the Star of Hope Foundation, as per Indiana’s wishes. The settlements reached in the last year or so are a step forward to ensure that the art, archives, and Estate honors the artist and his legacy. According to the settlements, Indiana’s island home will be turned into a museum to display his art once the litigation is resolved.[45] It is pertinent that the issues surrounding the Estate are resolved at the earliest, so the public can view Indiana’s art and ensure his legacy, art and story lives on.

References

View the Last Will and Testament of Robert Indiana HERE.

Suggested Readings

About the Author

Atreya Mathur (NYU Law, LL.M 2021) is the inaugural Judith Bresler Fellow at the Center for Art Law. She specializes in Competition, Innovation, and Information Laws, with a focus on copyright and art law. Atreya has a particular fondness for the art world, especially the controversial take of contemporary, appropriated, and derivative works, fascinated by the intellectual property and copyright implications of modern immersive art.

  1. Robert Indiana is commonly associated with the Pop art movement and is best known for his “LOVE” series, which manifested in numerous prints and sculptures around the world. See James Faraho, “When LOVE takes over: how Robert Indiana’s artwork conquered the planet,” The Guardian (2015), Available at https://www.theguardian.com/artanddesign/2015/oct/09/robert-indiana-love-artwork-sculpture
  2. In 2008 Robert Indiana revisited his iconic LOVE work and recast the sculpture as another four letter word: HOPE. See Robert Indiana: The Story Behind LOVE And HOPE, Guy Hepner, Available at https://www.guyhepner.com/robert-indiana-the-story-behind-love-and-hope/
  3. Biography of Robert Indiana, Available at http://robertindiana.com/biography/
  4. Greenberger, Alex, Robert Indiana Estate, Maine Attorney General’s Office Reach $2 M. Settlement, News Break (2022).
  5. Stevens & Day, The Last Will and Testament of Robert Indiana, Available at https://stevensdaylaw.com/maine-probate-law-robert-indiana-blog/
  6. Stanley-Becker, Issac, ‘LOVE’ artist Robert Indiana: Epic legal struggle alleges he was ‘exploited’ in his final years Washington Post (2018).
  7. Id.
  8. Barje, Taylor, Case Review: Is There HOPE for the Estate of Robert Indiana? Center for Art Law Blog (2020).
  9. News and Film, Appraisal Services, Trusts and Estates, Robert Indiana and Importance of a Will, Freeman’s (2018).
  10. Barje, Taylor, Case Review: Is There HOPE for the Estate of Robert Indiana? Center for Art Law Blog (2020).
  11. Id.
  12. Kuesel, Christy, Robert Indiana’s estate may be worth upwards of $100 million, Artsy (2019). Available at https://www.artsy.net/news/artsy-editorial-robert-indianas-estate-worth-upwards-100-million
  13. Bowley, Graham, Parties Settle in Legal Fight Over Robert Indiana’s Legacy, New York Times (2021).
  14. Rooks, Jennifer, The complicated life and legacy of Robert Indiana, artist behind iconic ‘LOVE’ sculpture, PBS (2021).
  15. Keyes, Bob, Robert Indiana Estate settles lawsuit with Morgan Art Foundation, Press Herald (2021).
  16. Morgan Art Found. v. Brannan, No. 1:18-cv-08231, 2020 U.S. Dist. LEXIS 14043 (S.D.N.Y. Jan. 28, 2020).
  17. Greenberger, Alex, Robert Indiana Estate, Maine Attorney General’s Office Reach $2 M. Settlement, News Break (2022).
  18. Keyes, Bob, Robert Indiana Estate settles lawsuit with Morgan Art Foundation, Press Herald (2021).
  19. Morgan Art Found. v. McKenzie, No. 1:18-cv-04438, 2019 U.S. Dist. LEXIS 109997 (S.D.N.Y. July 1, 2019).
  20. See Complaint at https://cdn.theatlantic.com/assets/media/files/robert_indiana.pdf
  21. Id.
  22. Barje, Taylor, Case Review: Is There HOPE for the Estate of Robert Indiana? Center for Art Law Blog (2020).
  23. Id.
  24. Morgan Art Found. v. McKenzie, No. 1:18-cv-04438, 2019 U.S. Dist. LEXIS 109997 (S.D.N.Y. July 1, 2019).
  25. McKenzie v. Brannan, 496 F. Supp. 3d 518 (D. Me. 2020)
  26. Id.
  27. See Complaint at https://ia800701.us.archive.org/19/items/gov.uscourts.nysd.500645/gov.uscourts.nysd.500645.1.0.pdf
  28. Morgan Art Found. v. McKenzie, No. 1:18-cv-04438, 2019 U.S. Dist. LEXIS 109997 (S.D.N.Y. July 1, 2019).
  29. Morgan Art Found. v. Brannan, No. 1:18-cv-08231, 2020 U.S. Dist. LEXIS 14043 (S.D.N.Y. Jan. 28, 2020).
  30. Barje, Taylor, Case Review: Is There HOPE for the Estate of Robert Indiana? Center for Art Law Blog (2020).
  31. Id.
  32. Id.
  33. Sharp, David, Copyright holder settles lawsuit with ‘LOVE’ artist Robert Indiana’s estate, New York Daily News (2021).
  34. Id.
  35. The Associated Press, Robert Indiana: Settlement agreement to release artist’s estate and foundation from lawsuit, First Post (2021).
  36. Id.
  37. Morgan Art Found. v. McKenzie, No. 1:18-cv-04438, 2019 U.S. Dist. LEXIS 109997 (S.D.N.Y. July 1, 2019).
  38. Keyes, Bob, Robert Indiana Estate settles lawsuit with Morgan Art Foundation, Press Herald (2021).
  39. Duron, Maxilimano, Settlement Reached in Multimillion-Dollar Legal Battle Over Robert Indiana Estate, Art News (2021).
  40. ​​AG intends to demand overpayments from Robert Indiana estate, AP News (2021).
  41. Betts, Stephen, Probate court says AG has right to seek accounting of Indiana’s estate, Courier-Gazette (2021).
  42. Id.
  43. The Associated Press, Maine AG settles claim over fees paid by Robert Indiana’s estate (2021); Also see https://www.scribd.com/document/554803923/AG-s-Renewed-Petition-for-Review-of-Reasonableness-of-Compensation-Reduced#download&from_embed
  44. Betts, Stephen, Probate court says AG has right to seek accounting of Indiana’s estate, Courier-Gazette (2021).
  45. Sharp, David, Copyright holder settles lawsuit with ‘LOVE’ artist Robert Indiana’s estate, New York Daily News (2021).