When the Whitney Museum of American Art entertained a crowd of 200 collectors and friends a few days before the official opening of its Mark Rothko retrospective in September, Dr. Kate Rothko, the artist's daughter, was one of the speakers. Trying to avoid controversy, she only alluded to the convoluted battle over her father's estate, a long-ago case of underhanded greed that bared the inner workings of the supposedly genteel art world.
Still, a friend later told her, someone criticized her for resurrecting the past. "There is a feeling in the art world," said Dr. Rothko, a pathologist who was 19 when her father committed suicide in 1970, "that this is something they'd rather forget."
But it is not that easy. The Rothko case may be rarely mentioned nowadays, but there is little doubt that it had a lasting effect. For nearly a dozen years beginning in 1971, the art world and the public were transfixed by the battle between Rothko's executors, all of them his good friends, and his two children, who accused the executors of waste and fraud, and by the ensuing appeals and related litigation. As a result, many of Rothko's luminous Abstract Expressionist paintings, which had been sold or consigned by his estate to the Marlborough Gallery in Manhattan at deflated prices, were donated to museums, probably enhancing their value.
Rothko and his work became better known, further establishing his reputation. Marlborough lost its pre-eminence in contemporary art. Its flamboyant owner, Frank Lloyd, never recouped his reputation, and neither did Theodoros Stamos, a painter Rothko chose as an executor. Kate Rothko, who grew up in the middle of the New York art scene, grew disillusioned with her father's world. Even the public lost some innocence.
"The Rothko affair was a flashing red light to many that in this field of high values and mysterious goings-on there's always a potential for this kind of dealing," said Andre Emmerich, the Manhattan dealer.
Over the years, artists, dealers and museums have seen their share of scandals, but few if any have approached the level of the Rothko affair in size or notoriety. Day after day, newspapers recounted courtroom testimony under headlines like "Angry Exchange in Rothko Case" and "New Rothko Charges Denied by Gallery."
Before Marlborough was stopped by a court ruling, it had sold more than 100 paintings -- including a few that Rothko's children now say they would have kept -- at less than market value to favored clients while it collected inflated commissions as high as 50 percent, compared with the 30 percent usually charged for an artist of his caliber. The executors, meanwhile, divided the estate's proceeds from Marlborough as their fees.
Ultimately Dr. Rothko and her brother, Christopher, who was 6 when their father died at 67, were vindicated. In 1975, a New York State court ousted the executors, canceled their sweetheart contracts with Marlborough and fined them and the gallery $9.2 million.
Later, while at his home in the Bahamas, Lloyd was indicted by the Manhattan District Attorney for tampering with evidence in the case. He surrendered after years as a fugitive and was convicted on three counts in 1983. He died on April 7.
In a telephone interview, Dr. Rothko, who runs a blood bank in Washington, recalled that the case marked something of an intellectual coming of age for her. "I mainly remember my disillusionment with the art world," she said. "I hadn't thought of it as a business world. I had grown up with an idealized view of the art world."
Through their legal victory, she and Christopher, who had directly inherited only a tenth of their father's paintings through the estate of their mother (who also died in 1970), won possession of half of the 2,000 works Rothko left behind. In the late 1970's they were valued at $50 million.
Dr. Rothko, 47, said the case continued to cause her pain. Although she and her brother still own many of the paintings from the estate, she said she was frustrated that some paintings were sold by Marlborough before the ruling. Among those she says she would have kept is "Homage to Matisse," now owned by the Edward R. Broida Trust. "I haven't seen it since the time of my father's death," she said.
Dr. Rothko is "largely outside the art world now," she said. She and her husband, Ilya Prizel, a professor of international studies at Johns Hopkins University, see only a few people from those times, like the artist William Scharf.
Her three children, a boy, 17, and girls, 14 and 8, "are just finding out about this now," she said. "I'm making them aware of how difficult it was to get the paintings."
Christopher, 35, is also detached from the art world. He is a clinical psychologist who lives in Ann Arbor, Mich., and is married with two toddlers. He remembers nothing about the courtroom drama, he said, but added that it left him with "a certain cautiousness in dealing with the business world, the legal world and the business side of the art world."
Both Rothkos are keen protectors of their father's legacy. They disagree with people who say their father's work is mainly about beauty, as well as with those who see specific religious references in it.
'It Opened Artists' Eyes'
"I grew up knowing that content was very important to him," Kate Rothko said. "He did not consider the Color Field artists of the 70's in any way an outgrowth of his work. He was stressing the emotional content and a spiritual content in the broad sense."
She said the case also taught artists a worldly lesson. "It opened artists' eyes to the concept that this was a business, not just an intellectual world," she said, "and it probably affected their estate planning."
John A. Silberman, a lawyer who counts many artists among his clients, agreed. "The positive side of the Rothko case was to heighten artists' sensibilities about the long-term care and disposal of their estates," he said. "Choosing the right people is a constant issue."
When Rothko died, he left his works in the care of three friends, all of whom have died: Morton Levine, an anthropology professor; Stamos, a Greek-born Abstract Expressionist, and Bernard J. Reis, an accountant and director of Marlborough.
Reis drew up Rothko's will, bequeathing nearly all of his works to the Mark Rothko Foundation, which was supposed to see that they went to the right museums and collectors, with the proceeds put to charitable or educational purposes. In late 1970, the trustees changed its charter to make it focus on awarding grants to artists, necessitating sales of Rothko's works and allowing the new sweetheart deal with Marlborough.
Levine depicted himself as a passive accomplice; he testified that important details of the contract had been withheld from him. Stamos was affiliated with Mr. Emmerich's gallery but had been offered a more generous contract by Marlborough, and willingly joined the conspiracy.
Punished, But Lightly
"The mystery was Bernard Reis," said Mr. Emmerich, who recently sold his gallery to Sotheby's and is now semi-retired. "He delivered his great good friend Mark Rothko into the hands of Frank Lloyd. He was seen as a wonderful man, yet he did something so base, so inexplicable."
The trustees and Lloyd escaped with what were seen as light sentences. Reis staved off creditors by filing for bankruptcy 11 months before his death. Stamos paid his share of the fine by signing over his house to the Rothko estate, but he was granted life tenancy.
Lloyd, who could have served up to four years in prison, was ordered to create a scholarship fund and to sponsor art lectures and gallery visits for New York City students. (No one contacted could recall any details of the program or how long it lasted.)
A Reputation Never Recovered
But Stamos never recovered as an artist. "His market is weak," said Diane Upright, a private dealer in Manhattan. The Rothko case was less to blame for Stamos's decline than "a stand-back assessment of his art," she said. "His work is perceived as low, second-tier or third-rank Abstract Expressionism."
Still, after the case, no gallery on Emmerich's level stepped forward to represent Stamos, and that hurt. "If he had been handled by a better gallery, that would have given collectors a greater sense of security," Ms. Upright said.
Art dealers said that the biggest business effect was on Marlborough, though they would not speak for attribution. "It didn't destroy the gallery, but it damaged it severely," said one. "It was at that time the No. 1 gallery for contemporary art in New York." Artists like Robert Motherwell and Adolf Gottlieb fled to other dealers. Pace Gallery won the Rothko estate.
Fellow art dealers also rejected Lloyd. Richard L. Feigen, a Manhattan dealer, remembers a stormy meeting of the Art Dealers Association of America. Afterward Marlborough resigned its membership under pressure. Though it is now healthy, Marlborough has never tried to return to the organization, the most important dealers' group.
Gilbert S. Edelson, administrative vice president of the association, maintains, however, that the case made no difference in the trade because Lloyd was sui generis, a man who always played by his own rules. "Everybody talked about it then, but it was a unique case, so I can't say it had any effect," Mr. Edelson said.
Perhaps paradoxically, Rothko's status benefited from the scandal, partly from the exposure. "It didn't hurt his reputation," Mr. Emmerich said. "It's a little like van Gogh's ear."
Perhaps more important, the Rothko Foundation, which was reconstituted by the court and awarded the half of the estate his children did not receive, made a crucial decision. It shed the idea of supporting artists and donated the works to museums, 29 in the United States and 6 in other countries.
"By having fewer works on the market, that had a long-term effect," said Donald M. Blinken, the investment banker who was made foundation president.
Rothko's works are indeed selling well. Last November, the San Francisco Museum of Modern Art paid a record auction price, $5.9 million, twice the presale estimate, for "No. 14, 1960," a work in deep red and blue.
Aid for Artists' Estate Planning
Not far from the galleries displaying the Mark Rothko show, a group of artists including Chuck Close and Philip Pearlstein appeared at the Whitney Museum of American Art last month to promote the new book "A Visual Artist's Guide to Estate Planning."
Although Rothko's work provoked the most protracted estate fight in art-world history, the sponsors of the book described the juxtaposition as coincidental.
"When we asked if we could use the Whitney, we didn't ask what would be going on at the time," said Joyce E. Robinson, executive director of the Marie Walsh Sharpe Art Foundation, the publisher.
The book grew out of a small conference of artists, dealers, lawyers, accountants and curators in April 1997. The Rothko case turns up on page 116, where it is described as "perhaps the most well-known example of self dealing and breach of fiduciary obligation."
To encourage wide distribution, the foundation (711 North Tejon, Suite B, Colorado Springs, Colo. 80903) is charging $10 for the book, shipping included.