The Robert Indiana legal case inches closer to resolution as the three-year anniversary of his death approaches.
Three of the principal parties with long-term financial stakes in the legacy of the late “LOVE” artist have signed a confidential settlement agreement in a costly and ongoing legal battle over ownership rights and the right to reproduce artwork, leaving one party to stand alone to fight.
Robert Indiana poses at his studio in Vinalhaven in 2009. Associated Press/Joel Page
The settlement, announced in a brief letter to the court on Wednesday, was reached among the Morgan Art Foundation, the Indiana estate and the Star of Hope Foundation, whose representatives have signed an agreement “that should fully resolve all claims” stemming from Morgan’s May 2018 lawsuit, filed in New York, against Indiana and his caretaker and personal assistant, Jamie L. Thomas. Left out of the settlement agreement is New York-based art publisher Michael McKenzie, who also was named in the lawsuit and accused of making fraudulent artwork in Indiana’s name.
Indiana, who is most famous for his “LOVE” motif in the 1960s and “HOPE” much later in life, died at his home on Vinalhaven island, the Star of Hope Lodge, soon after the suit was filed, at age 89. Morgan Art is Indiana’s longtime dealer and owner of much of his art, and the Star of Hope Foundation, which owns his lodge and will receive his assets, is the Maine-based nonprofit organization carrying forward his legacy.
The details of the settlement are expected to be sealed.
McKenzie signed contracts to work with Indiana on “HOPE” beginning in 2008, putting him in conflict with Morgan Art, which had been under contract with Indiana for “LOVE” and many other works since 1998. In its suit, Morgan alleged that Thomas isolated Indiana from his friends and art-world associates while McKenzie made work in his name, with or without his approval.
John Markham, McKenzie’s attorney, was defiant, and said the legal wrangling will continue regardless of whatever claims among the other parties are resolved. McKenzie remains at odds with both the estate and Morgan, he said.
“If they do not make a settlement with us, we will assert our rights in arbitration with the estate to continue making ‘HOPE’ sculptures, and we will continue the litigation with Morgan in federal court,” Markham said. “Both the Star of Hope and the estate have expressed an interest in settling with us, but they have not as yet wanted to formally discuss it, which is curious. What is mind-boggling about it is that everybody should know the fact that Michael McKenzie made $10 million for Robert Indiana on the ‘HOPE’ sculptures and is willing to continue doing so and in fact claims he has a right to do so. Why they wouldn’t want that income stream to continue is something we can’t understand. It makes no sense to us.”
As an offshoot of the civil suit in New York, McKenzie and the estate face an arbitration hearing in New York beginning March 22 over McKenzie’s right to continue making and selling “HOPE.” McKenzie asserts his agreement continues past Indiana’s death, and the estate says it does not. The estate also says McKenzie violated his contract with Indiana, and McKenzie contends the estate owes him at least $3.5 million in royalty payments that McKenzie paid to Indiana but Indiana never earned. The arbitration hearing could last most of that week.
Other than Markham, none of the other lawyers involved in the settlement talks and litigation returned messages asking to discuss the development.
Markham said Morgan has made no settlement overtures to McKenzie. The dispute between Morgan and McKenzie is at the heart of the original complaint. Morgan alleged McKenzie overstepped the bounds of his “HOPE” agreement with Indiana and infringed on Indiana’s contract with Morgan. Morgan sued Indiana while he was alive to force him to stop working with McKenzie, and Indiana’s estate, represented by Rockland attorney James Brannan, became a party in the suit after his death.
Indiana died May 19, 2018, the day after the federal lawsuit was filed. The original suit has spawned several others and tied up Indiana’s will in the probate process. Brannan, who became Indiana’s executor in 2016, is under scrutiny by the Maine attorney general about $8.5 million in legal fees and other expenses incurred by the estate since Indiana’s death. Brannan has billed nearly $1.5 million himself.
In his letter dated March 3 to U.S. Magistrate Judge Barbara Moses in the Southern District of New York, Morgan attorney Luke Nikas said the settlement has caveats, including one “subject to Thomas’s approval, which we expect to have promptly.” It was unclear what Thomas’ approval relates to. The agreement also has “one condition that the parties expect will be fulfilled and that must be fulfilled by May 17, 2021, for the settlement to be fully effective,” Nikas wrote. “This date was set for reasons outside the parties’ control that were generally discussed in the mediation. The parties are conferring about a joint submission to the Court to set forth their position regarding next steps in the case.”
Nikas told the judge the submission would be filed by Monday.
Given the confidentiality surrounding the settlement and lawyers’ reluctance to talk, the significance of the May 17 date was also unclear.
Maine law allows people three years to contest a will, although actions can be taken after three years to recover property received through fraud. Indiana’s former attorney, Ronald L. Spencer of New York, has complained that Brannan has mishandled Indiana’s estate, and suggested Indiana signed his final will naming Brannan as his personal representative under undue influence. Brannan has denied that accusation.
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