Give and Take: on Jeff Koons mastering contractual and statutory relationships with other artists

By Madeleine Conlin*

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Photo by Jeff Ferzoco

Contemporary blue-chip artist and controversial figure Jeff Koons has long been known for developing concepts, then leaving the implementation of his designs to studio assistants to execute the vision. Historically studio assistants are young or mid-career artists who specialize in drawing, painting, photography, sculpture, and other mediums necessary to making their employer’s ideas a reality. Drawing inspiration from a number of predecessors and contemporaries, including French-American artist Duchamp and his readymades, Ukrainian A. Rogers, and many of the old European masters, Koons describes his art in terms of its potential to help him and others achieve “a higher level of consciousness.” However, despite his unconventional creative process, Koons does not consider the contributions of his studio workers to go beyond those of hire help, and affirms that all of his work is entirely his own since they merely follow instructions, and are not allowed creative liberties. Koons sees himself comparable to a fashion designer, who creates an idea, then employs other individuals to make the product.

Screen Shot 2017-07-07 at 2.08.52 PMThe method of producing art with help of others, perhaps better skilled, is not new and many, from Andy Warhol to Gerhard Richter, have relied on studio assistants to make art. The subject of employment and labor law in the arts is, however, less well known. In 2015, efforts were initiated by several Koons workers to form a union; however, these attempts were thwarted by a series of layoffs which continued over the course of the next few years. In July of 2016, an article in Art F City announced that many of Koons’ workers were laid off in the preceding week (the same workers had begun to form a workers union in the months just before this occurred). Based on what the anonymous source told Art F City, Delaware-incorporated company Jeff Koons LLC fired everyone who had started working for the corporation after June 1st, 2015. Another downsizing occurred recently, and the company fired half of its painting staff on June 13, 2017. This cut the number of painters down to 30 from its previous 60 person team. Some of the assistants that Jeff Koons LLC laid off in June were employed by the artist for over a decade. In all, there have been 3 reported rounds of layoffs since 2015, each around the same time of year. While the reasons for laying off all of these artist-workers were not publicly given, the first one seems to have coincided with the workers’ unionizing processes. This timing has led to speculation by some that perhaps the two actions are related.

Unions are formed to maintain a balance of power between employers and employees, and to ensure that employers uphold certain practices, some of which include fair wages, benefits, and reasonable working conditions. Union formation, however, is a complicated process. First, an individual must petition their coworkers to form an organizing committee. Then, the committee must meet with legal counsel, or with a chosen union representative. Based on this meeting, the group can decide if the union would be effective and useful in their own workplace, and if so, each must fill out a union authorization card. Union representatives and individuals from the organizing committee are responsible for garnering interest and support from roughly 75-80% of their coworkers in order to formalize the union. Once the target percentage has been reached, each interested party member must fill out and file union authorization cards with the National Labor Relations Board and petition for an election. This election request is then processed by the board, which will subsequently conduct a secret ballot election at the workplace to ensure that the majority of members actually wish to be represented by the union. If so, then the board will certify the union, which means that by law, the employer must bargain in good faith with the workers’ union. Moving forward, the union and employer can work together to address issues or concerns in the workplace, and eventually create new contracts regarding the working conditions (that again, must be voted on by every worker later on). Unionizing, while incredibly useful for balancing the power between authority figures and workers, is not an easy process — to say the least.

While it is unknown whether or not Jeff Koons LLC did indeed fire its workers for unionizing, if they did, it could mean trouble for the company. According to the National Labor Relations Act (NLRA), it is illegal for employers to:

  • Prohibit [employees] from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms;
  • Question [employees] about your union support or activities in a manner that discourages [them] from engaging in that activity;
  • Fire, demote, or transfer [employees], or reduce [their] hours or change [their] shift, or otherwise take adverse action against [them], or threaten to take any of these actions, because [they] join or support a union, or because [they] engage in concerted activity for mutual aid and protection, or because [they] choose not to engage in any such activity;
  • Threaten to close [their] workplace if workers choose a union to represent them;
  • Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support;
  • Prohibit [them] from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances;
  • Spy on or videotape peaceful union activities and gatherings or pretend to do so.

The NLRA is explicit in that union members cannot be fired for joining, starting, or partaking in the union in any way. The state of New York provides additional protection for employees through the New York State Employee Relations Act, which states that union members also have the right to organize, bargain collectively, and to strike. If Jeff Koons LLC fired its workers for their unionization efforts, the company could face legal consequences. In the earlier 2000s, Koons had as many as 120 assistants in his studio, but after cutting the staff in half more than once in the last few years, sources claim that there are only about 30 people still working for the company. There has been no account of any successful union formation. Reportedly, some of the laid off studio assistants threatened to bring legal action against Koons in 2015, but none have been reported yet. As of now, no new action has been taken, and it is unclear whether or not the union workers or any of the ex employees will be filing against Jeff Koons LLC for interfering with the unionizing process. A savvy businessman, Koons probably has his contractors sign Non Disclosure Agreements (NDAs), as none of the reporters for these cases have not been able to gather much information from the studio assistants and individuals who were fired. Jeff Koons LLC was filed with the New York State Department of Corporation in 2005 as a foreign limited liability company, and it is likely that the workers’ compensation is handled through the company, as well as other financial matters.

These labor law concerns are only the newest emerging conversations relating to Koons’ non traditional style of creation. His employment of assistants has been a topic of discussion for many years. In an interview in March 2016, in which Koons opened up about his creative process and the concepts behind his art, the interviewer asserted that he seemed not to “suffer in solitude” like some renowned artists do, and called his work “communal art.” Koons responded to this insinuation emphatically: “My work is generated from myself and it comes from a process of following my intuition and through letting things resonate over a period of time. I’ve had people around me who … I’ve been able to use to help me realize some of these different works. But at the end of the day, I’m responsible for everything. So the creative process is not communal. I’m in front of it, because it’s the gesture.” Koons takes an approach to his work that mimics the style of esteemed clothing designers, architects, or a company’s “idea man.” While he leans on other artists to assist him in creating the physical manifestation of those ideas, the art would not exist without his conceiving of it and directing his team in its implementation.

As a widely known and too-big-to-fail artist, Koons frequently stands in the public eye, and each of his pieces faces immense scrutiny, making his attention to detail and desire for perfection extremely important to the success of his work. According to Koons, one key part of grasping one of his pieces is to understand what he is trying to accomplish on a conceptual level. Koons does not place as much emphasis on the process, as on the discovery of higher states of beauty, or the bringing together of polarities through his work. It is the outcome and presentation of each piece or series that Koons finds most salient; it likely does not hurt that the financial rewards are ever-expanding. He often states that he wants his work to express broader ideas — where some artists, such as Jackson Pollock, are very focused on the motions and methods of the production of art, Koons focuses on delivering a message through design concepts: “I believe in communication. That’s how I think about the viewer. It’s not to get any response from them, other than what I put into it… the excitement, the energy. You know, I make something because I’m in awe and wonder of what that idea is and what that will be like. I’m excited by it. I just want them to feel that.” Since the outcome of the piece matters most, it needs to achieve the degree of perfection Koons envisions to succeed in his mind.

In 2012, a few years before the first round of layoffs, John Powers, a 21 year old art student who worked for Koons at an hourly rate of  $14, described his experience with Koons in the New York Times. Powers spent most of his time painting in a color-by-numbers-esque fashion. He worked three nights a week and on Saturdays for around five months, spending his time in the studio working tediously on a highly detailed piece titled, “Cracked Egg.” (The painting was accidentally destroyed in the studio and a second edition of the same piece was begun and later sold in 2003 at a London Christie’s auction for $501,933). Illustrating Koons’ perfectionism in the studio and in his creative process, Powers stated that Koons would frequently fire individuals who failed to meet his standards. Powers managed to please Koons during his painting endeavors, but he only stayed with the studio for about six months total, quitting soon after the destruction of the first version of the piece. While some, like Powers, only work for a very brief time in the studio, Koons has had a loyal following of several assistants who, until recent layoffs, had been with the studio for over 10 years.

Perhaps Koons demands a lot from his workers, but that is not necessarily unusual — many work providers have high expectations for their hirees, especially if they wish to make a profit. Based on numbers and name recognition Koons seems to succeed. Some of his works have made record prices at auction, and he is broadly recognized as one of the most financially successful living artists. One especially lucrative piece, Balloon Dog (Orange) (1994-2000), sold for $58.4 million dollars in 2013 at a Christie’s auction, setting the reported record at the time for the most expensive piece of fine art by a living artist sold at auction. Koons made five unique Balloon Dogs (Magenta, Yellow, Red, Blue, and Orange) from stainless steel with different color coatings as part of his Celebration Series, with the help of the roughly 120 assistants who worked for him at the time. Other pieces have reached similar lofty prices at various auctions, including Jim Beam – J.B. Turner Train (1986), which sold for $33.7 million, Tulips (1995-2004), which sold for $33.6 million, and many more, all of which have been purchased for upwards of one million dollars, and all created by the workers in his studio. Koons works, regularly produced as multiples, draw upon a variety of techniques and skills that are not mastered by the mastermind behind them. While his artwork is often pricey to create, since he often works with materials such as stainless steel or porcelain, the sale revenues from each piece or series can be tremendous. He does not confine himself to working with any particular gallery, but rather shows his work in various museums, galleries, and auctions houses, and even works as a contract artist for interested — and affluent — buyers.

For workers like Powers, an art student at the time of his employment, it is likely difficult to reconcile the amount of pay received and the high-pressure work environment of the Koons studio with these sale prices and the fame of the pieces, much of which is not credited to the literal makers. Current minimum wage laws in New York City (as of December 31, 2016) require companies with less than ten employees to pay at least $10.50 per hour and companies with eleven or more employees to pay at least $11.00 per hour. Koons seems to have been clearing the pay standards, at least according to the sources that spoke with Artnet News and Art F City. Many of the artists fired this year were earning about $21 per hour, a higher rate than the one Powers received for his work in 2012 ($14 per hour). The difference in the hourly rate reported in 2012 and in 2017 may be reflective of terms negotiated by Koons in 2015 with his employees to discourage them from forming a union at that time, or due to increased profit since then. Artnet News reported that according to their source, some of the individuals fired this time had also not received severance beyond the last day’s pay (which, if promised upon their initial hiring, would be another breach of the NY State Employee Relations Act). New York State laws do not mandate that employers offer benefits or wage supplements, but if they are offered verbally or in writing upon the employment of new workers, failure to comply to those agreements is considered a misdemeanor. The original reasons behind the studio assistants’ desire to form a union in 2015, and current possible explanations for firing these workers, both remain obscure.

In statements, Jeff Koons LLC has publicly attributed each round of cuts to substandard sales and downsizing, or to a lower need for labor due to smaller or fewer projects. This would be reasonable, except that Koons’ other financial actions and ongoing projects do not seem to match those claims. In 2015, the year in which the first round of cuts were made, and the same year that some of the workers began to unionize, Jeff Koons LLC spent $23.7 million on purchasing three new adjacent studio spaces in Hudson Yards, with plans to move into the larger site from their current Chelsea location. Even earlier, in 2014, Koons spent an estimated $4.85 million constructing a 21,726 square-foot mega-mansion out of two neighboring houses on the Upper East Side. Perhaps then, the cuts are not financially incentivized, but rather due to a basic lack of need for assistance in his studio. Koons stated that he was not working on any major shows in 2015, hence the layoffs, although the Gazing Ball series of paintings with sculptures went on view that year in November. Since 2015, Koons has worked on collaborative projects with Burton (2014-2016), Google (2016), and Louis Vuitton (2017-ongoing) on snowboard designs, iPhone cases, and a designer handbag collection. Other “solo” (non-collaborative) works that he has completed since 2014 include his piece Bouquet of Tulips (2016), Gazing Ball (Bottlerack) (2016), Seated Ballerina (2017), eleven new editions of previous paintings and sculptures, and various contract-based pieces. He has also reportedly become involved in the development of virtual reality-based art in the past few months. And yet, each year for the past three years, during the summer months, Jeff Koons LLC has made substantial cutbacks to his studio staff, which leads to the question, why?

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Given his impressive legal and financial footprint, it is worth remembering that Koons had to work his way up to his international stardom. He too worked various jobs similar to the positions of the studio assistants he employs now, including a position selling memberships at the Museum of Modern Art in NY, where he worked as a young man scraping to get by. He even worked as a studio assistant for Ed Paschke, where he worked so hard that he would sometimes go home with bloody fingers from stretching canvases. Koons’ baggage and meteoric rise from a MoMA public services employee to a world famous artist, as popular as he and his works have become, is constantly subjected to public scrutiny, including his record sheet as an employer.

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*About the Author: Madeleine Conlin is a rising Junior undergraduate at Yale University studying Psychology and English. She is spending the summer as an intern at the Center for Art Law. She can be contacted at madeleine.conlin@yale.edu.

Disclaimer: This article is intended for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely upon the information in this article and should consult a licensed attorney.

 

Interns in the Arts

By Lesley Sotolongo

Internships have become increasingly important not only in academic curriculums, but also for any jobseeker wanting to gain work experience to boost his or her resume. It is both an avenue of recruitment and a source of human capital for employers. However, interns are often unpaid and only receive academic credit for their work. While these positions have been traditionally perceived as offering students with opportunities and professional experiences, there has recently been a boom in the amount of lawsuits being brought forth by interns against their former employers arguing that they should be compensated for their work. In fact, one intern’s victory has fueled a class action and student protests against their university’s internship guidelines, demanding pay. For example, students at New York University (NYU) expressed their concerns about being offered only unpaid for-profit internships, and as a result NYU’s Wasserman Center for Career Development issued a statement that going forward the opportunities posted to its jobs board would comply with New York Wage and Labor laws, further details of which are described below. With funding coming mostly from programming or grants, arts organizations may find it tempting to rely on interns to perform some of its key logistical functions. However, in the wake of the recent controversy, employers are on notice to familiarize themselves with both federal and state wage laws.

As a result of the issue gaining national recognition, the Department of Labor in 2010 issued guidelines employers should follow to comply with FLSA, which states that unpaid internships are legal only in stringently outlined educational settings.

The six criteria are:

  1. the internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment
  2. the internship experience is for the benefit of the intern
  3. the intern does not displace regular employees, but works under close supervision of existing staff
  4. the employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded
  5. the intern is not necessarily entitled to a job at the conclusion of the internship, and
  6. the employer and intern understand that the intern is not entitled to wages for the time spent in the internship program.

In 2011, a group of unpaid interns brought a class action against Fox Searchlight under the Fair Labor Standards Act (“FLSA”), New York Labor Law (“NYLL”), and California Unfair Competition Law (“CAUCL”), alleging that defendants violated federal and state labor laws by classifying them as unpaid interns instead of paid employees. Specifically, the FLSA mandates that individuals who are employed must be compensated for the services they perform. In Glatt v Fox Searchlight Pictures Inc., Judge William H. Pauley III sitting in the Southern District of New York ruled that interns were employees covered by FLSA and NYLL. Therefore, Fox Searchlight Pictures was considered to have violated federal and state minimum wage laws by not paying the interns. This case is controversial as its ruling has an impact on how employers manage its unpaid internship programs. Additionally, Judge Pauley III stated that whether the student was receiving academic credit was not important in determining whether interns should be paid. Instead, he called for employers to follow the U.S. Department of Labor’s criteria for unpaid internships.

The U.S. Department of Labor’s guideline is based on the 1947 United States Supreme Court opinion in Walling v. Portland Terminal Co., 330 U.S. 148, 152-53 (1947), which held that the FLSA’s definition of “to employ” as “to suffer or permit to work” does not include student participation in an educational or vocational training program, so long as the employer derives no benefit from the trainees’ work. Almost seventy years ago, the Court cautioned against arrangements “in which an employer has evasively accepted the services of beginners at pay less than the legal minimum.”

Furthermore, understanding these guidelines is crucial for avoiding the increasing amount of lawsuits that have sprung in the wake of Glatt v. Fox Searchlight. However, it is important to note that the FLSA applies to only “for-profit” private sector employers. Non-profit organizations and arts organizations in particular – often strapped for cash and operating on tight budgets – are not included in this law as long as all applicable non-profit incorporation requirements are met.

Moreover, non-profits are subject to state laws that may affect interns. For example, it is possible for non-profit organizations and institutions to have unpaid internships in New York if certain criteria for minimum wage laws are met for interns who are not in an ‘employment relationship’. The criterion for this situation in New York State set out in the is that Students working in a not-for-profit organization are exempt from the State Minimum Wage Act and the Minimum Wage Order for Miscellaneous Industries, so long as the organization is (1) organized and operated exclusively for charitable, educational, religious (2) they attend an institution of learning with courses leading to a degree, certificate or diploma (3) they are completing residence requirements for a degree such as those required of medical and pharmaceutical students and (4) the work experience need not fulfill a curriculum requirement or even relate to the student’s field of study.

Furthermore, the National Council of Nonprofits advises that it’s important to clarify whether interns are ‘unpaid volunteers’ or ‘paid employees’. If a non-profit considers its interns ‘volunteers’ but pays them a ‘stipend,’ there could be unintended negative consequences. Both the FLSA and state wage and hour laws define what constitutes a volunteer. The stipend may trigger the Department of Labor to conclude the intern is an employee, creating the risk that the non-profit could owe back wages (at least minimum wage) and back taxes. On the other hand, if the non-profit is following state wage regulations closely, it may be appropriate to treat the intern as a “trainee”, relieving the non-profit of paying minimum wage, but raising the need to document carefully how the internship primarily benefits the intern and not the non-profit.

In sum, a key takeaway from the fact sheet and cases like Glatt v Fox Searchlight Pictures Inc., is that employers who intend to hire students, should ensure that the internship not only complies with the law, but that the internship also assures that they receive educational benefits other than the usual résumé boost, job reference, and a mere understanding of how the business works. Nevertheless, it is clear that whether for-profit or not, if an employer hires an intern, the employer must make sure that the intern is receiving beneficial training. If and when in doubt about taking interns and assigning them tasks, employers should consult with counsel to ensure compliance with federal and local laws.

Sources:

Steven Greenhouse, Judge Rules That Movie Studio Should Have Been Paying Interns, available at, http://www.nytimes.com/2013/06/12/business/judge-rules-for-interns-who-sued-fox-searchlight.html?_r=0

Glatt v. Fox Searchlight Pictures Inc., 293 F.R.D. 516 (S.D.N.Y. 2013) on reconsideration in part, 11 CIV. 6784 WHP, 2013 WL 4834428 (S.D.N.Y. Aug. 26, 2013) and motion to certify appeal granted, 11 CIV. 6784 WHP, 2013 WL 5405696 (S.D.N.Y. Sept. 17, 2013).

Christopher Zara, NYU Wasserman Center Bends On Unpaid Internship Guidelines, But Is It Bending Far Enough?, available at, http://www.ibtimes.com/nyu-wasserman-center-bends-unpaid-internship-guidelines-it-bending-far-enough-1555016

U.S. Department of Labor

NY Labor Standards Fact Sheet

Christopher Zara, Are All Unpaid Internships Illegal? Labor Lawyers Explain How Businesses Can Avoid Lawsuits, available at, http://www.ibtimes.com/are-all-unpaid-internships-illegal-labor-lawyers-explain-how-businesses-can-avoid-lawsuits-1352583

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WikiMedia

About the Author: Lesley Sotolongo, is a third year law student at Benjamin N. Cardozo School of Law. She may be reached at Lesley.Sotolongo@law.cardozo.yu.edu.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.