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“Outsider Artists” and Inheritance Law: What Happens to an Artist’s Work When They Die Without a Will?

By Wenni Iben

Introduction

Today, Henry Darger (1892-1973) is known to the world as an artist celebrated for vibrant and vividly-colored drawings that now command up to $800,000. During his lifetime, however, Darger’s talents were unknown to the world; a custodian by day, Darger kept his art to himself. In 1972, Darger moved out of the Chicago, IL apartment he’d rented from Nathan and Kiyoko Lerner for over a decade, leaving behind thousands of pages of drawings, paintings, and collages. Darger passed away one year later in a Chicago nursing home, with no known family or close friends, but his work soon took on a new life in the public eye. 

Darger is often referred to as an ‘outsider artist:’ an artist with little formal training in the arts and little or no contact with the professional art world. Only upon Darger’s death were his works published, promoted, and ultimately celebrated thanks to the efforts of Kiyoko and Nathan Lerner, who salvaged and promoted Darger’s works in lieu of disposing of them with the other items Darger left in the apartment. Since Darger’s death, the Darger works have been shown at the Museum of American Folk Art, The Center for Intuitive and Outsider Art, and various other museums and galleries. The Darger works now command hundreds of thousands of dollars and have been sold through auction houses like Sotheby’s and Christie’s for hundreds of thousands of dollars.

In recent years, however, the legality of the Lerners’ handling of the Darger works has been challenged. Darger died intestate, meaning he did not bequeath his artworks or their copyrights by will to anyone, including the Lerners. In the state of Illinois, when an individual dies intestate with no known kin, the contents of the deceased’s estate go to the state. However, two factors have complicated the matter of who legally owns the Darger estate. First, Kiyoko Lerner maintains that Darger transferred the ownership of his artwork to her during his lifetime, though no written record of this transfer exists. Secondly, several distant relatives of Darger have emerged through the forensic genealogy company HeirSearch. These relatives filed a lawsuit against Kiyoko Lerner (Nathan Lerner passed away in 1997) this past July, seeking compensation for what they allege is unlawful exploitation of Henry Darger’s artwork.

Walkthrough

On September 30, 2020, lawyers representing a group claiming to be Darger’s relatives emailed Kiyoko Lerner to inform her of their intentions to recover the physical Darger artworks, the associated intellectual property, and any revenue generated by Kiyoko and Nathan Lerner through what they allege is “misappropriation and unlawful exploitation of the Darger artwork.” 

The email alleges that Lerner has no valid right, title, or interest in any physical embodiment of or copyright to the Darger artworks. Furthermore, the email alleges, any claim Lerner makes that Darger gifted his artworks to her husband is “questionable at best–given his deteriorating mental state and conflicting contemporaneous accounts.” Even if Darger did gift his artwork to the Lerners, the email continues, “any such gift would have excluded any intellectual property rights.”

In January 2022, the claimants petitioned the court for probate of the Darger estate. In May 2022, Christen Sadowski, one of the claimants, was named Supervised Administrator of the Henry Darger Estate. The claimants, known as the Estate of Henry Darger, then promptly filed a complaint with the district court against Kiyoko Lerner for the following infractions: 

  1. copyright infringement;
  2. unfair competition and false or misleading description or representation of fact;
  3. a declaratory judgment under the Declaratory Judgment Act;
  4. unfair competition under Illinois common law;
  5. deceptive trade practices;
  6. unjust enrichment under Illinois common law; 
  7. an equitable easement; and 
  8. conversion under Illinois law.

A Closer Look: Does Kiyoko Lerner Legally Own the Darger Works and Copyrights? 

In the United States, laws concerning the transfer of property from a deceased person to their heirs is subject to state law and thus varies depending on the state in which the deceased person resided upon their death. As Darger died intestate in Chicago, the question of who lawfully owns the physical Darger artwork is determined by the state of Illinois. 

According to Kiyoko Lerner, when Henry Darger moved out of the Lerners’ Chicago apartment in 1972, he “said they could do whatever they wanted” with the contents he left behind in the room. By the Illinois Lifetime Transfer of Property Act, as long as Lerner’s recollection of Darger’s statement that she and her husband ‘could do whatever they wanted’ with the contents of the room constitutes a valid transfer of property, she legally owns the artwork Darger left in his room.  

Without any known written evidence of this exchange between Darger and the Lerners, the plaintiffs contend that this interaction between Darger and the Lerners does not constitute a valid transfer of property. The plaintiffs question the accuracy of Lerner’s claim that Darger gifted his artwork to her and her husband and furthermore question Darger’s soundness of mind at the time Lerner alleges Darger gifted his artwork to her husband. Unless Kiyoko Lerner can find a way to corroborate her claim that Darger, in sound mind, transferred ownership rights of his artwork to her or her husband, it will be difficult for her to prove that Darger transferred his artworks to her.

However, there is another avenue Lerner can take to show that she rightfully owns the physical Darger artworks. In the city of Chicago, when a tenant moves out of a rented property and leaves items behind on the premises, the landlord is required to store the property for seven days after the tenant leaves the property. After seven days, the landlord is free to dispose of the property as they please, including through sale of the property. As Darger lived for another year after moving out of the Lerners’ Chicago apartment and did not pick up his artwork within seven days of moving out of the apartment, the Lerners have a strong case that they had the right to do what they wished with the physical Darger artworks. 

Aside from the question of who owns the physical Darger works, there remains a separate question as to whether Kiyoko Lerner owns the copyrights to Darger’s art. In the United States, copyright ownership does not transfer with the ownership of the physical object. Furthermore, under federal law, a transfer of copyright ownership is not valid, other than by operation of law, unless an instrument of conveyance, a note, or a memorandum of the transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. The plaintiffs contend that Lerner is not the valid copyright owner of Darger’s artwork. The law is on the side of the plaintiffs, in this case: since Darger did not transfer the ownership of the copyrights to his artworks to the Lerners, and since the Lerners are not kin to Darger, Kiyoko Lerner likely has no claim to the copyrights of the Darger artworks. 

If not Kiyoko Lerner, Who Owns the Darger Copyrights? 

While he was alive, Darger, as the creator of his artworks, owned the copyrights to the Darger works. The copyrights to any work exist for 70 years after the death of the creator and may be inherited by the creator’s heirs. Because Darger died intestate, Illinois state statutes determine who lawfully inherited his work upon his death. By 755 ILCS 5/2-1, since Darger died without a spouse, living parents, siblings, or children, the estate goes to the descendants of any kindred to Darger. 

It appears that Christen Sadowski, the plaintiff who was named supervised administrator of the Darger estate this past May, is one of these descendants. According to court papers, upon being granted this role, Sadowski was authorized to take possession of the physical Darger artworks and their associated copyrights. The plaintiffs seek relief in actual damages, the actual amount of which, they have specified, they want to be determined at trial.

Conclusion

Kiyoko Lerner has held that, while Darger was alive, she and her husband often checked in on him to ensure that he had sufficient food and proper living arrangements. Despite pressure from neighbors to cease renting to Darger due to his disheveled appearance, the couple continued renting to Darger, even lowering his monthly rent from $40 to $30 so that he could afford to stay. With no kin to care for Darger, it was the Lerners who arranged for Darger to move into a charity nursing home in 1972, after which time Kiyoko Lerner claims they approached Darger to see what he wanted done with his materials, including his artworks. 

And yet, without a will to communicate Darger’s wishes, the ownership of Henry Darger’s artworks and their copyrights has gone to Christen Sadowski and other relatives who Darger never knew. These relatives, contending that Lerner unlawfully exploited Darger’s artworks, seek to be awarded with all profits the Lerners made in managing the Darger artworks as well as punitive and statutory damages and other forms of relief for the Lerners’ alleged wrongdoings. 

Since the Estate of Henry Darger seeks a jury trial to determine the actual amount of damages they receive, the outcomes of this case are not easily predictable. It may be possible that Lerner’s description of her personal connection to Darger will be a more significant factor to the jury in determining the amount of damages owed to the Darger Estate than it was for the judge who granted Sadowski supervised administrator of the Darger Estate. Perhaps this trial will be an opportunity for Darger’s wishes concerning the inheritance and use of his work to be considered.

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About the Author:

Wenni Iben (Columbia University, B.A. 2023 expected) is a student of Economics and Philosophy. She is the Fall 2022 Undergraduate Intern at the Center for Art Law.