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By Alan Behr

NEW YORK, 22 OCTOBER 2012 — The artist who wants to make a living by his art who does not accept that he is running a small business is missing something as fundamental to his success as a sense of composition. For all his reported hard-partying prep-school ways (Southern gentleman’s edition), the photographer William Eggleston did not get his work bought for important collections and shown at major museums from the Albertina to the Whitney by neglecting his business.

Eggleston is important to photography for several reasons, key among them being that he is largely responsible for making color photography respectable — which was no small matter. Respectability was an act of grace that had happened, and only just so, scant decades earlier for black-and-white photography. (So much do purists still consider black and white the higher form of the medium, however, the premium manufacturer Leica recently introduced a camera called the Monochrom — a digital piece that only shoots in black and white.)

Eggleston has a gift for color in the most honorable sense: for making color not merely additive but consequential to his images.  But a technical challenge presented itself from the start: a color transparency (slide) and, to a lesser extent, a color negative printed by ordinary chemical means loses tonal range and luminescence, and color prints are notoriously prone to fading.

…in the contemporary art market, scarcity is not of primary concern — as indeed it can never be when the artist is still alive and well and carrying an autograph pen.

Eggleston’s solution, adopted in 1973, was in the use of dye-transfer printing; it was the ultimate method of the chemical photography era, both in terms of results, which were vibrant and powerful in the hands of a master printer, and cost. Most important for collectors, unlike ordinary chemical processes for color print-making, dye transfer prints have good permanence characteristics — meaning that the prints have sufficient archival quality to be displayed and resold in the same condition as originally purchased.  Always available only from a few master printers, dye transfer is almost a lost art.  Kodak, which made headlines when it discontinued manufacturing Kodachrome in 2009, had quietly given up on dye transfer back in 1994.

Over the years, the value of original Eggleston dye transfer prints has ascended, as have prices for the works of master photographers in general. It does not hurt that the marketplace frets over whether anyone will be able to make more dye transfer prints in the coming years. Even if that should not prove to be the case, the fine-art photography market plays by its own rules: “vintage” prints, meaning those made relatively soon after the creation of the negative or transparency, typically sell for much more than later prints, even if the latter benefit from improvements in materials and technique and the refinement of the photographer’s vision. Size also matters: the trend has been for ever bigger prints, and bigger has nearly always sold for more than smaller, at least when made from the same negative or transparency.

Two historical events are of prime importance to what next occurred for Eggleston: On the technical side came digital printing. Although, as most commonly practiced, digital methods produce “flat” prints (lacking the illusion of depth) of questionable permanence; properly done, digital processes can provide high-quality, collectable results. The second event was the hyperactivity of the contemporary art market, at least as far as pricing goes.  Although, in theory, works by a dead artist should fetch more than those of a living artist of comparable output, if only because there is nothing as firm as the hand of death to limit definitively any edition, and although so many of the best works by deceased masters are already in museums or otherwise sequestered for now from the marketplace, the normal supply and demand requirements of a rational market do not always apply when dealing with something as subjectively valuable as art. New markets (such as China and Russia), new artists and new marketing techniques — and a general enthusiasm for what is new — help explain why a new work by Damien Hirst and Jeff Koons may sell for more than a well-known one by Jasper Johns and Roy Lichtenstein, to say nothing of something clever by Hals or Ingres.

The photography market has lived a life parallel to that of the contemporary art market, with a few crossover artists such as Thomas Struth receiving the rewards from both. One collector who has played by the rules of the photography market is a Jonathan Sobel; he is a New York financier with a sincere passion for the works of Eggleston, as demonstrated by a private collection numbering over 190 of the master’s dye transfer prints. It was with great consternation that Sobel learned that Eggleston had scanned and made two new large-format digital prints (40 x 66 inches; 102 x 168cm) each of some of his most important (which is to say, most expensive) images. In all, three dozen of those new prints were sold at auction by Christie’s on 12 March 2012 in New York, for a total of $5.9 million.

When you consider that, just a few years ago, you could get a signed, stamped print by Henri Cartier-Bresson in the low thousands, and that, a few decades ago, Ansel Adams sold his best for hundreds, you have to respect that trajectory of value for the impressive accomplishment that Sobel found it to be.  Which is why, not long after the sale was concluded, he sued Eggleston personally and the trustees (which include Eggleston) of the Eggleston Artistic Trust (the beneficiary of the sale), claiming that the creation and sale of new digital prints devalued the many he already owned.

There is no heart more easily broken than one that truly loves. Sobel is a trustee of the Whitney Museum of American Art; the foundation named for him and his wife helped finance the museum’s 2008 Eggleston retrospective, and the couple gave the museum money to acquire Egglestons. He has loaned Egglestons to major museums. There can be no doubting his scholarship and his devotion to the work of a man who he clearly feels betrayed him.

At issue in the lawsuit, which was filed in federal court in New York on 3 April 2012, are eight dye transfer prints in the traditional Eggleston print size (16 by 20 inches; 41 by 51cm) that Sobel added to his collection beginning about 2008.  Although there was no contract of sale stating that the works were never to be reprinted in any size or medium, each was signed and individually numbered, so the core of Sobel’s complaint is that Eggleston expressly and impliedly represented to Sobel and other purchasers of those works that those prints, and others so numbered, were limited editions. Of course, all eight were among those scanned and printed larger by Eggleston and sold by Christie’s.

Lawyers are sometimes portrayed as having chosen to become lawyers in order to avoid the risks of business and the mathematics of finance. All lawyers, especially litigators, are trained to argue — and their greatest collective weakness is that they do so too much and too often — most dangerously so when listening should be given precedence. Add to that the uncertainties presented to a lawyer when he drafts his complaint — if all the facts were already proven, after all, there would be no need for a trial — and you see why the draftsman of a complaint often has many challenges for himself, sometimes of raw necessity and sometimes from raw pugnacity.

In the words of the Sobel complaint, the value of the eight subject works in Sobel’s collection was “diminished by the very existence of additional copies of the same image now in the art market.” The damage, that is, was caused not merely by the sale of the art but by the mere act of its creation. That would hint as destruction as the only remedy, although that plea does not appear in the complaint; what Sobel is demanding is a halt to further digital sales of the Eggleston images he claims are limited editions and the payment to him of compensatory damages. Those would equal the difference between what the alleged limited edition Egglestons in his collection were worth before and after the sale (along with punitive damages on one of his claims).

That demand creates one large problem at the outset. Sobel states that the eight prints in his Eggleston collection that were, in effect, violated by the appearance of the digital versions collectively were worth $850,000 before the alleged damage occurred; but he can only roughly estimate the total value of that collection at between three to five million dollars. He also reports that prices for the thirty-six digital prints sold at the auction varied by a factor of more than nineteen — from $32,500 to $578,000, creating another problem for the arithmetic of damage. Somehow, Sobel will have to arrive at accurate numbers of pre-digital-auction prices for what he has and show their precise devaluation due to the digital sales that followed — not an easy thing to do for something as fluid and often even unstable in value as works of contemporary art. Of potentially far greater importance, however, is that, applying the upside-down rules of valuation for the contemporary art market, Sobel, at least in economic theory, could well be asked (however informally) to write a check to the defendants — for increasing the value of his Eggleston collection.

In the traditional photography market, the existence of two more prints than — for illustration purposes — the twelve prints of an image made much earlier could theoretically lower the value of those older dozen prints, particularly if the earlier batch was priced and sold on the expectation of no other copies being made. But the new digital prints likely would never be perceived as vintage prints, so from the start the damage that they could do would be relatively contained as against those of the twelve that the market considers vintage.

But more to the point, in the contemporary art market, scarcity is not of primary concern — as indeed it can never be when the artist is still alive and well and carrying an autograph pen. In that market, the excitement generated by the release of the larger format prints in digital — the demand to get there first and to have the latest and best of what is exciting for one’s own, whether in New York, Moscow or Beijing — would create a wave that floats all boats, increasing the value of all fourteen prints, at least for a time, but probably for as long as the photographer remains in favor as a maker of must-have, status-imbuing contemporary art.

An even more basic question: how important is it that a photograph be numbered, the edition of the prints closed?  Is not one of the reasons photography became to be seen as fine art accessible to those who believe in it is that multiples are possible, allowing original prints to circulate widely, building acceptance for the medium, at prices that were not ruinous to the many serious collectors who were not necessarily wealthy?

“I’ve always thought that one of the great things about photography was that it is a democratic medium,” said Peter Fetterman, a well-known Los Angeles-based photography dealer, in an email in response to that question.  “I have always thought the concept of editioning as basic nonsense. Editioning [is] basically a false marketing tool which is often used to put ridiculous pressure of the potential buyer. It is also often abused by the artists and dealers who advocate its practice. An image will sell out and then all of a sudden it appears again in a different format in a ‘new’ edition. This is at the heart of the Eggleston suit.”

As Howard Greenberg, whose New York gallery represents some of the most important contributors to the medium, explained, “We in the photo market are used to things being a certain way. It took many years for photographers to accept the idea of editioning, but their acceptance did not guarantee their adherence to any strict guidelines. Obviously, with the crossover to the contemporary art market, things started to change.”

And on the core issue of the lawsuit, which is the value now ascribable to the Eggleston works in the Sobel collection, Greenberg offered his own, clear opinion: “The digital prints don’t look like the dye transfers. People prefer the original dye transfers — the colors are more saturated, which is as the colors should be with Eggleston’s prints.  There is no way in the universe that those prints are devaluing Sobel’s collection.  The way it works, the buzz, the excitement that these new prints are making are, furthermore, a good thing for the market.”  There are many tales of lawsuits borne of changes in market conditions and changes in technology — indeed, cultural and business change of almost any kind, to say nothing in changes in legislation and regulation, are incubators of litigation. The law, outpaced as it nearly always is by custom, practice and the Zeitgeist, lumbers behind in its worn shoes, struggling to keep pace. It will be interesting to see where this case goes, and also what theories of the changing marketplace are ultimately endorsed, should there be a publicly announced resolution.

And what is the lesson for now for photographers and the sellers and collectors of photography? “Those photographers,” said Greenberg, “who have been embraced by the contemporary art market: you look at their prices and compare them to great masters who have not done so, and the disparity in pricing is irrational; but it is also very telling about what goes on in the contemporary art market, where there is much trophy hunting by newly wealthy collectors who compare and contrast acquisitions with each other. The art itself can lose its significance.”

So, dear artist / business person, what will it be: an egalitarian marketplace in which you are revered by collectors who prudently undervalue your work relative to what happens elsewhere or an exuberant one in which people may buy your work for the wrong reasons but willingly overpay?  In what market would you prefer to sell, and in which would you want your name known and respected?

Alan Behr is an attorney in New York City practicing art law.  He reviewed the recent Eggleston retrospective at the Whitney Museum of American Art for Culturekiosque.

Headline title photo: William Eggleston: Untitled, 1965-68 and 1972-74,
from Los Alamos, 2003
Dye transfer print 17 3/4 x 12 (45.1 x 30.5)
Private collection
© Eggleston Artistic Trust