Matter of Rothko

I.

I’m going to break this down very simply, and as nonlibelously as possible.

On February 25, 1970, my mother received a call from Oliver Steindecker, Mark Rothko’s studio assistant, informing her that Rothko had committed suicide and was lying on the floor of his studio in a pool of blood. My mom took a cab from her house on East Eighty-Ninth to Rothko’s studio, twenty blocks south, and helped identify the body. She then took another cab uptown, to Rothko’s brownstone on East Ninety-Fifth, to tell Rothko’s estranged wife, Mell. She left a message with my father, who was, curiously, attending a funeral. Eventually he showed up as well, and helped to arrange Rothko’s funeral two days later. My mom was one month pregnant with me.

Five months later, Mell Rothko died unexpectedly of a heart attack, leaving their two children, Kate and Christopher, parentless. My mother was by now six months pregnant. Because of an inconsistency between the Rothkos’ wills, Kate, nineteen, became the ward of one Herbert Ferber, dentist-sculptor. Christopher, seven, became the ward of my parents. That arrangement ended badly. Christopher left my parents’ house the day before I was born.

II.

Last spring, I did a performance at the Museum of Modern Art. In the weeks prior, I was obsessed with the “Sixteen Americans” show MoMA mounted in 1959. That era was in the air: Mad Men, Fred Kaplan’s 1959: The Year Everything Changed, a play about Rothko on Broadway called Red, Todd Levin’s “I.G.Y.” (International Geophysical Year) show at Marianne Boesky; and there I was, doing a performance at MoMA, the beating heart of artistic ’59. I’d go to the museum library every day and look at that catalogue and wonder what happened to the other twelve Americans, the ones who weren’t named Johns, Stella, Nevelson, or Rauschenberg, the ones who must have thought, “OK, MoMA; I’ve got it made.” Also-rans and bystanders are my artistic stock-in-trade—abandoned headshots, forgotten spectators in performance-art photos, performers performing for no one, people whose bones have been bleached in the sun of others’ fame.

OK, MoMA; I’ve got it made. Afterward, an older museum volunteer came up to me among the well-wishers and said, “You don’t know me, but I’m your stepmother’s best friend. Your father would be very proud.” By the time that last sentence registered, she’d disappeared. I stifled the echo and turned to someone else.

III.

I barely remember my father. He died in 1981, eight years after my parents were divorced. He moved downtown, to a small one-bedroom in a high-rise on East Ninth Street. My mom stayed uptown in their brownstone. A concert pianist and poet, she always warned me not to end up a failure like him.

She still lives in that house. It’s like a New York School museum, full of posters and paintings and photos, as though time stopped in 1971. Prints and collages by Robert Motherwell, David Hare, Adja Yunkers, and Theodoros Stamos, and poster after poster by Rothko. Black-and-white photos of cocktail parties; that was their scene, those were the good times, when all the artists would get together and talk and drink every night, and Mom would visit Rothko’s studio every afternoon, and everyone lived in brownstones on the Upper East Side. There’s Mom hanging out with Rothko and Stamos in the living room; there’s Mom smoking a cigarette in Rothko’s studio; there’s Rothko sitting on the edge of his bed. I grew up in a house full of photos of Rothko, and not a single photo of my dad. He’s always out of the picture. He’s always the one taking the picture.

In the divorce, my mom wound up with all three of the paintings he’d given them, one of which had been a wedding gift. My dad wouldn’t pay child support, so she sold them to put me through school.

IV.

My parents moved to New York from Poughkeepsie in 1968, purchasing their house with money from my mother’s parents. At the time of Rothko’s suicide, the stress of the move, or the stress of the renovations, or maybe the stress of an impending baby, was causing some discord. My father was an associate anthropology professor at CUNY; he’d met Rothko through Motherwell, who’d mingled with academics for a time. He was just coming up for tenure review.

Now he found himself an executor of a multimillion-dollar estate. Rothko died with his market value climbing and with 798 finished paintings in his studio. He left practically everything to the Mark Rothko Foundation and nothing to his children. He named his three closest friends—my father, Stamos, a fellow painter, and Bernard Reis, his accountant—as his executors. Within three months, the executors, who were also the foundation’s directors, had sold or consigned the entire stock of paintings to Marlborough Fine Art at a drastic discount. In 1971, Kate’s guardian, Ferber, began legal proceedings on her behalf, to have the paintings returned and the executors removed for “conspiring to waste the assets of the estate.” Within two years my father had lost his job and his marriage. Within three years “The Matter of Rothko” had become the biggest scandal the New York art world had ever seen. Within five years my father was fined $6 million for his role in the affair, and within ten he was dead. The lawyers hounded his second wife, attempting to reach him beyond the grave, demanding to know whether she still possessed “any Rothkos.”

V.

I had no idea how that woman found me. I had no idea how she knew whose son I was. Most of the time, I don’t even know whose son I am. Hearing his name uttered at MoMA, though, Rothko’s haunt, after I had taken the stage—it spooked me.

I went back to the library. I pulled two books. The first was a catalogue of Rothko’s 1961 solo show at MoMA. The second was a paperback called The Legacy of Mark Rothko, which turned out to be a detailed but often wildly irresponsible account of the Rothko affair. I couldn’t put it down. I started acting funny. I started doing research. I started going down to Surrogate’s Court on Chambers Street to read trial material: thirty boxes of totally uncatalogued evidence and transcripts. Briefs, exhibition catalogues, doodles, longhand drafts. At one point I found three metal cases of slides that were entered in evidence. They represented Rothko’s entire oeuvre and had been shot by my dad in Rothko’s studio in 1968. It had been my father’s idea: Rothko had no cataloguing system, no way to keep track of his stock, and, as my dad put it during the trial, “Since photography is part of my work, and it’s something I enjoy doing, and I love Mark’s paintings, I told him I would be very happy to take slides of these.” So with Steindecker hanging and two assistants cataloguing, my father photographed the paintings, one by one.

I stole a few slides. I figured they belonged to me. Those slides—and, now that I think of it, his Nikon—are the only things I have from my dad, besides a monogrammed briefcase he gave me, much to my perplexity, when I turned eight.

VI.

You can read all about it online. Edith Evans Asbury covered the trial for two years for the Times, Lee Seldes covered it for three for the Village Voice. New York Magazine and the New Yorker, the Washington Post, they all ran features. The case had everything: fifteen thousand pages of trial transcripts; upward of $2 million in lawyers’ fees; shifting allegiances; a rotating cast of plaintiffs and defendants; genius, corruption, orphans, betrayal, riches, transcendence, luminous color. Seldes wrote a lurid book, from which the BBC made a lurid docudrama, The Rothko Conspiracy. Bill Murray started developing a feature about the affair, but somehow Ghostbusters director Ivan Reitman got attached and it morphed into the romantic comedy Legal Eagles (check Daryl Hannah as the Wronged Daughter, check Terence Stamp as the Villainous Gallerist, check Brian Dennehy as … Dad??).

The petitioners’ suit was as follows: Three months after Rothko’s death, the executors sold one hundred top paintings to Marlborough at rock-bottom prices, roughly $12,000 apiece, when they were going for upward of $50,000 on the open market. They then consigned the rest to Marlborough, with the gallery receiving half of each sale. While their haste could be excused as the alacrity of executors eager to fulfill their obligations to the estate, it was suspicious that just five weeks after Rothko’s death, Reis was named a director of Marlborough, and just a year after the bulk sale, Stamos joined the Marlborough stable of artists. By the time the suit was filed, on November 8, 1971, Marlborough had already sold thirty-six of the estate’s canvases for as much as $180,000 per painting, at a total profit of $2,474,250. The executors thus stood accused of “self-dealing” and, along with Marlborough, of conspiring to defraud and “waste the assets of” the estate.

They countered that they’d gone for the best prices they could get in a depressed market, since there was no telling whether Rothko’s value would continue to rise (hard as it may be to believe, there was a time when Rothko’s value was not yet established). Furthermore, they argued, their ability to negotiate a better deal was severely constrained by exclusive contracts Rothko had signed with Marlborough before his death. Most important, they insisted that they were under pressure to secure funds for the Mark Rothko Foundation, established during the last few years of the artist’s life to shepherd his paintings.

Under New York State law, Kate and Christopher Rothko were entitled to half their father's estate, despite Rothko's will. They sought to have the sales nullified and the executors removed for their improvidence and conflicts of interest. Christopher’s new guardian, Barbara Northrup, joined the suit on his behalf. Because this was a matter of wills, heirs, orphans, and executors, the case was tried in Surrogate’s Court, and because Rothko left everything to his foundation, the district attorney joined the suit on behalf of the public interest. But the foundation, which counted among its directors the executors themselves, supported the Marlborough contracts and contested the children’s right to inherit anything. The foundation thus endorsed a deal that liquidated its own inheritance at a measly $12,000 per painting.

While the prosecution seized on the foundation’s stance as yet another example of the executors’ self-dealing malfeasance, in this case the situation was less clear-cut, because Rothko, in his last days, addled by illness and depression, alchohol and Sinequan, kept changing his mind about the foundation’s purposes. Although it had originally been established to parcel out his work to institutions and collectors who would honor his intentions—no group shows, no resale, permanent installation of his works—Rothko had spoken increasingly, before his death, of using the foundation to make grants to older, unsuccessful artists. The charter was vague, citing “charitable, scientific, and/or educational purposes.” If the charitable aspect of the charter was paramount, then the executors were under obligation to secure liquid assets for the foundation, so that it could begin to fulfill its grantmaking mission; a bulk sale of the estate would therefore be prudent, to avoid the cost of insuring the paintings and the taxes that would be assessed if they were parceled out piecemeal.

Whatever the merits of this particular line of thinking, my dad seems to have believed in it, at least for a time. But he also believed, he wrote a friend, that the foundation ought to be able “to express its self-interests as an heir, letting the chips fall where they might.” For it was impossible for him “to be a foundation man acting for the foundation when that was called for, and an executor acting for the estate when wearing that crazy hat.” When the foundation, over his objections, joined the suit against the children, he resigned his directorship.

VII.

There’s an awesomely bad scene in the BBC movie of The Rothko Conspiracy where my father confronts the other two executors over their conflicts of interest. It takes place in the drawing room of Reis’s townhouse. Stamos says, “Screw you!” and my dad calls him a “son of a bitch!” and then he accuses Reis of being “arbitrary and high-handed.” The dialogue is based on Seldes’s account, which is in turn based on my dad’s testimony. He never doubted that Reis and Stamos had good intentions, apparently: Reis was already a millionaire and certainly didn’t need Marlborough’s $20,000 director’s salary. And Stamos had been negotiating with Marlborough even before Rothko died—a relationship Rothko himself had instigated. What my father was worried about was the appearance of a conflict of interest. Perhaps, as someone who had one foot outside the art world, he took less for granted and could foresee how bad the optics on these deals would be if they were ever contested before a broader public.

He underestimated. The executors were portrayed as vultures, false friends who had simply been waiting to pounce; news accounts depicted my parents subjecting the orphan Christopher to Dickensian privations; Agnes Martin, in an interview with Art News, suggested that Rothko had been murdered. While reporters described the complexities of the trial as something out of Bleak House, they rarely took note of the melodramatic story line they were both shaping and falling prey to.

As the only executor without a conflict of interest, my father eventually decided to obtain his own counsel, to join Rothko's children and the district attorney in supporting the court’s injunction against further sales, and to support the children's right to their inheritance. He maintained throughout, however, that in spite of their apparent conflicts of interest, neither Reis nor Stamos had conspired to defraud their friend’s estate. It was a complex, precise, and untenable position that had no place in legal or journalistic narratives of genius, wronged orphans, and art-world wickedness, and he got absolutely hammered for it. Reis and Stamos’s lawyer went after him for going rogue, the foundation and Marlborough’s lawyers went after him for supporting the injunction against further sales, Kate and Christopher’s lawyers went after him for defending his right to remain an executor. He was debriefed, deposed, examined, and cross-examined for thousands of pages; he was mocked by opposing lawyers as “the man on the flying trapeze.” Never in the best of health, he asked for frequent breaks during the trial. At one point the presiding judge, Millard L. Midonick, became concerned. He asked him if he didn’t sleep well at night. He just responded, “I have dreams.”

VIII.

I found a recording that my dad made around the time he decided to shear himself of Reis and Stamos, before the trial began, in 1972. It was in an old shoebox full of cassettes he’d made for me when I was a kid. He’s still married to Mom, they’re still on Eighty-Ninth Street, she’s visiting her parents in LA, and he’s decided, inexplicably, to tape the day’s phone conversations. The first is with Robert Motherwell, who gives him legal advice, bitches about Reis, and invites Dad up to the Cape to chill out; the second is with his new lawyers, Bernard Greene and Steve Zeche, with whom he discusses legal strategy, support for the injunction, and the mysterious “put” clause in Rothko’s final contract with Marlborough.1 The third is with the president of Marlborough himself, Frank Lloyd, whom my father tries to persuade to settle with the heirs.

Lloyd was a Jewish refugee from Austria who settled in London after the war. He named himself after Lloyds bank, named his enterprise after the Duke of Marlborough, and quickly turned his three-room basement antiques gallery on Old Bond Street into the bluest of blue-chip galleries, brazenly snatching artists like Francis Bacon and Henry Moore and making enormous deals on the secondary market. (Lloyd’s son, Gilbert, who was on staff, described Marlborough as “the most hated gallery in London.”) In the early 1960s, Lloyd decided to corner the market in New York School abstraction, picking up most of the artists who left Sidney Janis Gallery after Janis turned his eye downtown. By 1970, the year of Rothko’s death, Marlborough represented Motherwell, Rivers, Guston, and Gottlieb, as well as the estates of Franz Kline, Jackson Pollock, Ad Reinhardt, and David Smith. From its perch on West Fifty-Seventh Street, Marlborough operated satellites in Toronto, Tokyo, Zurich, and Rome. Traces of Lloyd’s largesse can be found all over Manhattan, including a big bronze Botero cat in the driveway of 900 Park Avenue, home of Mr. Drummond from Diff’rent Strokes.

In Legal Eagles, the evil gallerist Victor Taft has an unplaceable Euro-aristocrat accent. But in the recording, Lloyd’s accent is all too placeable: He sounds like Shylock. And he reasons like Shylock: A contract is a contract, he insists, and the contracts the executors signed are binding. And while he might have been willing to accommodate the heirs in some fashion, his honor has now been besmirched, and that is an offense from which he cannot back down. His logic is impeccable: “You can’t settle when someone says you’re a swindler. Either you are a swindler or you’re not. There’s no settlement possible.” Toward the end of the conversation, he asks my father, “Could you settle, if someone says you’re a thief and you swindled an estate?” My father just sighs and backs down.

IX.

The trial hinged on a question better suited for museums and art magazines than a court of law: Was Mark Rothko an artistic genius? If Rothko was a Great American Master, then the executors acted improvidently by selling all his paintings so cheaply. But if Rothko was just another fairly successful painter, whose value might decline precipitously as the art world forgot him, then the executors acted prudently. And, in the background, the question of Rothko’s intentions: If he wanted his paintings kept in groups and exhibited in museums, then the executors cheated the public by ensuring that his oeuvre would be atomized and absorbed into private collections; but if Rothko didn’t care what happened, and simply wanted to make grants to artists, then the executors’ conduct was perfectly appropriate.

And thus began the parade of experts and luminaries. For the respondents, poet Stanley Kunitz, composer Morton Feldman, and theatrical producer Clinton Wilder, who swore that Rothko had said the purpose of the foundation was to make grants to older artists. For the petitioners, MoMA director William Rubin and collector Ben Heller, who insisted this was nonsense, that “Mark” wanted his paintings to be available to the public, not sold to speculators and private collections. For the petitioners, critic Meyer Shapiro and dealers Richard Feigen and Arne Glimcher, insisting that Rothko was a Great American Master, “one of the half-dozen greatest living artists,” whose paintings would continue to increase in value. For the respondents, Frank Lloyd and curator Peter Selz, arguing that no one knew what surprises the market might hold and that Marlborough’s bulk purchase came with huge risks, since the cache was weighed down with early Rothkos—the ones you don’t see on Mad Men—for which a market would have to be created. And who knew, after all, whether Rothko’s reputation would last? Stamos, in his defense, cited the example of Bradley Walker Tomlin, “a “beautiful painter … who was just as famous as all of us,” but who had, since his death in 1955, been forgotten.

But every attempt by the defense to question Rothko’s enduring genius brought forth yet another critic or dealer willing to affirm it, until Rothko’s place in art history and the art market became a matter of legal record, and a trial that was supposed to ascertain his market value wound up entrenching it: The Surrogate Court’s 1975 decision valued all Rothko canvases at a minimum of $90,000, while conceding that private transactions had gone as high as $250,000. If the executors had intended to betray Rothko, they could not have done much worse; instead, they ensured his immortality.

The determination that Rothko was a genius meant that his three friends must, ipso facto, be Judases: Stamos was censured by the judge for having the audacity to negotiate a better contract for himself with Marlborough than he did for Rothko’s estate; for not realizing that he was, existentially, “a not-too-successful painter.”

X.

Stamos’s reputation was destroyed. He rarely showed in the US after the trial, and spent most of his time abroad. In 1982, the court awarded his West Eighty-Third Street brownstone to the Rothko estate as a means of settling his enormous debt, granting him lifetime tenancy. After Stamos died, Christopher Rothko moved in.

Bernard Reis, who was, in truth, the only executor canny enough to conspire against anyone, never testified in court. He claimed to have suffered a debilitating stroke, although private investigators hired by Kate Rothko’s lawyers found him in quite good health, going to openings and taking the air with his wife, Becky, in New York. He died, his assets mysteriously evaporated, in 1978. His town house is currently up for sale.

As the only executor without a conflict of interest, my father got off lightly—if you can call $6 million in liability light—but with the unfortunate consequence that, his career terminally derailed, he would never be remembered for anything, not even for villainy. Years later, when people reminisced about the scandal, he would always be referred to as “the third one, what’s his name, the professor?” When he died in 1981, a friend at the Times offered space for a full obituary, but his wife and cousin declined, reasoning that it would have emphasized his role in the Rothko affair rather than his achievements in anthropology, and this would have made him ashamed.

If anyone profited from the whole mess, it was the Pace Gallery, which became the Rothko estate’s sole representative when Kate was finally appointed executor, and announced it triumphantly in a half-page ad in the Times. Pace had already picked up the Reinhardt and Pollock estates once artists started fleeing Marlborough en masse, and one can’t help but note that Arne Glimcher, the district attorney’s star witness and Pace’s founder and director, was an adviser and associate producer of Legal Eagles. The film’s climactic scene depicts the fictional Taft Gallery, located exactly across the street from the real Marlborough gallery, burning down.

Last spring, Hollis-Taggart, a secondary-market gallery on Madison Avenue, mounted a show of Stamos paintings in an effort to revive his US market. I went by and asked whether they were buying, since I know my mother has a couple she’d like to sell. The youngish-looking associate director asked if they were from the ’60s; I said they were; he asked me whether I had images; I told him I was representing an anonymous owner; he asked my own name, and I paused. I simply said, “David.” He looked at me, waiting for a last name, but I suddenly felt that my last name was cursed, and that if I uttered it the earth would open up and swallow us.

XI.

The irony is that after my father moved downtown—just east of the Cedar Tavern and the West Village, where his New York School buddies made their fortunes, and just north of CBGB and SoHo, where a new generation was rendering those buddies obsolete—he quit hanging out with artists. He found a job at Fordham, remarried, befriended Jesuits; he suffered through the appeal, the post-trial hearings, and the hounding of lawyers; he enjoyed about a year of peace before he got cancer in his hip and died. In his last days, high on morphine, he kept pointing to a “square of paranoia” in the corner opposite his bed.

There’s no vacant real estate: When my dad died, my mom sent me to Dalton, the same Upper East Side prep school that the Rothko kids had attended. After I finished college, she encouraged me to pursue a PhD at Harvard, as my father had done. But I left halfway through and became an artist, like my family’s household god. In 2008, Kate and Christopher obtained a court order to have Rothko’s remains removed from the Stamos family plot on the North Fork. Stamos’s sister requested that a plaque be erected at the site, saying that he had been “buried there through the good graces and efforts of his best friend and artist Stamos.” But the remains still haven’t been moved, and no plaque has been erected.

XII.

Why are we all fighting so fiercely on behalf of bad fathers? Rothko was, by all accounts, a terrible parent, who alienated his teenage daughter to such an extent that she told him she hated his paintings. So he responded as any narcissistic, alcoholic, monomaniacal abstract expressionist would, and he left the paintings in the hands of his friends. Once he’s dead, she’s sorry, and wants to take it all back. But by now the paintings are with others, who have their own interests and their own understanding of his priorities. And they are villainized. And they lose. And my father dies. And I barely notice, because as far as I know, he’s a loser, and a jerk, and then thirty years later someone brings me a failure’s blessings from beyond the grave, and suddenly I feel as though my father’s memory is being betrayed. And suddenly I find myself a loyalist, because apparently it’s more important to like your father’s memory than to like your father.

In high school, my mom, who became an artist herself, would occasionally tell me stories about Christopher’s days as their ward. They were dark, but at the time all I could think about was how cool it would be to have a brother. Now, I imagine running over to his house—Stamos’s old house—and climbing the ten steps to his door, ringing the bell and pressing that cassette into his hands and saying, “See? My dad didn’t mean it! He was trying to make peace! He meant everybody well!” And then maybe we’d hug and have a drink at Elaine’s or something.

When what would actually happen is that he would just stand there, and stare at me with fully justified incomprehension, and then gently shut the door to his haunted brownstone.

XIII.

Was my dad guilty? I think he was lazy; I think he was negligent. I think he was inexperienced in these things, and he deferred to Reis on practical matters because he had other things to worry about and other things he wanted to accomplish. Stamos, who loved Rothko as much as he competed with him, likewise had his own career to attend to. So of course Reis, the accountant, took the reins; of course he guided the foundation and the executors into doing his bidding; of course he colluded with Lloyd. But even he, for all his arrogance, obstinacy, and underhandedness, thought he was doing the right thing.

I think it must have been shocking for my father to be accused—then publicly indicted, then convicted—of betraying his closest friend when he was just trying to help; and I think it’s tragic that the Manichaean worldview of a twenty-one-year-old girl found binding expression in the press and the law; and I think it’s awful that Rothko, one of the purest exponents of pure abstraction, had to take everyone else down with him in such a messily concrete way.

That day in the library when I found The Legacy of Mark Rothko, I opened it to a random page and there was a photo of my dad, the first one I’d seen in twenty years; the only photo of him I’d ever seen taken by someone other than my stepmom or myself; the only photo of him in black and white, looking like an official figure in the pantheon of grown-ups. What stopped me was the doorway he’s standing in, the wall. I knew that doorway, I knew that wall. This was his apartment on Ninth Street, before he remarried. Here was a public photo of a private space that has no personal significance to anyone who will ever come across that book except me.

On the wall next to him is a framed poster, his face dimly reflected in the glass. A Rothko.