“We’ve corroborated every single allegation of wrongdoing against Michael McKenzie,” says the lawyer Luke Nikas, a partner at the firm of Quinn Emanuel Urquhart & Sullivan who is representing the Morgan Art Foundation (MAF) in the latest leg of a winding, prickly lawsuit that involves of some of the world’s most recognizable artworks and the legacy of their creator, the late Pop artist Robert Indiana.
In a memorandum filed against McKenzie in the US District Court for the Southern District of New York on 10 December, the latest motion in a labyrinthine affair that began the day before the artist died in 2018 when MAF accused McKenzie of exploiting the ailing artist and forging his works, the foundation again accused McKenzie of forgery and emotional abuse as well as lying under oath about evidence in his possession since litigation began, hiding evidence including documents, paintings and even a monumental sculpture from discovery, and brazenly continuing to forge Indiana’s works. MAF is asking the court to enter a judgment against McKenzie, who it claims “made a mockery of the discovery process” and “repeatedly thumbed his nose” at the court, strike his pleadings and pay the foundation’s legal fees and costs.
The allegations, which the foundation says are corroborated by testimony submitted to the court by current and former employees of McKenzie’s publishing company American Image Art (AIA), spring from Osvaldo Gonzalez, who for a time worked at McKenzie’s studio and claims to have witnessed and been told about McKenzie’s many alleged wrongdoings.
In a sworn statement filed to the court, Gonzalez claims to have seen the publisher order the forging of Indiana’s works, using a stencil or a stamp to add the artist’s signature and a date prior to his death to the verso of works that McKenzie may not have been authorised to replicate. At least two employees were pressured to add Indiana’s signature to unauthorized works, Gonzalez says, and those who were reluctant were threatened with violence. “McKenzie made it known to me that he owned guns, and he would repeatedly discuss violent incidents involving guns and shootings,” Gonzalez told the court.
The alleged forging goes further than stamps and stencils. According to MAF, McKenzie directed his employees to use a machine called “The Ghostwriter”, which uses a mechanical arm to scrawl Indiana’s signature on works with a pencil. In one piece of evidence submitted to the court, an Instagram video posted by a former AIA employee shows “The Ghostwriter” in action, its mechanical arm swinging a pencil back and forth, adding Indiana’s signature to what appears to be a print of the artist’s work The Alphabet while an voice offscreen whispers the word “forgery”.
“My boss says I would be fired if I didn’t do this,” the caption on the Instagram post reads. “So because Indiana is too old to sign his prints part of my job is to commit forgery. If the cops ever come, I’m singing like a bird.” MAF claims that Indiana himself described McKenzie as a forger and confirmed on video that he was “emotionally abusive and uncontrollable”.
One of the most shocking accusations in MAF’s motion is that McKenzie purposefully hid a cache or works from the foundation’s lawyers during two court-ordered inspections of his compound in Katonah, New York. According to MAF, in January 2019 the court ordered McKenzie to conduct a “reasonably diligent search” after its lawyers received a letter from McKenzie stating that he would stop turning over documents and refuse to appear for depositions. The letter followed what the foundation described as a “meager production” of documents, most of which were taken from the internet, on 9 November 2018. After multiple reminders from MAF and a failed mediation in April 2020, settlement discussions began in the spring of 2021. However, during the discussions the foundation uncovered information about McKenzie’s stash of Indiana works. During a visit to McKenzie’s studio MAF allegedly discovered a trove of works purportedly by Indiana including many forgeries and thousands of documents that McKenzie had failed to produce to the court.
According to the foundation and testimony from Gonzalez and AIA employees, McKenzie hid roughly half of his inventory of Indiana works when MAF lawyers visited his Katonah property, some in the basement of his home and others haphazardly stored in wooden racks behind one of the seven buildings on the property. Before a second court-ordered visit by the foundation’s lawyers, in August 2021, McKenzie, who according to court documents was “visibly angry” about the inspection and “felt like he was being invaded”, moved roughly 2,500 works off his property. McKenzie later admitted to moving the works, claiming in a deposition that he realized the works would be safer, and easier to view and sell, in a temperature and humidity-controlled environment as opposed to on his property where everything was “stacked up on top of each other for lack up space”.
“There really is no substance to the charges,” says McKenzie’s lawyer, John Markham of the law firm Markham Read and Zerner. “McKenzie has made all the artwork available for inspection. He’s done that twice and he’s never hidden it.”
Markham claims all of Gonzalez’s allegations against McKenzie are untrue and rooted in a dispute between Gonzalez and his former employer. According to Markham, Gonzalez worked as McKenzie’s gopher and lived on the Katonah property with his son and daughter. According to court documents, Gonzalez quit after McKenzie read him the riot act for filling up his vehicle with the wrong type of fuel.
“The day after I informed McKenzie I was leaving one of his employees called me and warned me to ‘be careful for [my] health’,” Gonzalez says in his statement. “I perceived that statement as a threat,” he adds, saying that he feared for his safety and that of his family. Markham told The Art Newspaper he looks forward to vindicating McKenzie, and showing that it was “a bit overwrought for MAF to claim wrongdoing on the part of McKenzie” based on testimony by Gonzalez, who is simply a “disgruntled employee” with “a very checkered past and motive to lie”.
In amended complaint filed by MAF in 2018 the foundation claimed that Indiana disavowed AIA reproductions of his iconic LOVE image and that McKenzie, through intimidation and abusive behavior, forced the artist to approve AIA’s reproduction of another well known Indiana work, HOPE. At the time AIA and Indiana’s estate had filed a countersuit to the original complaint alleging that the foundation failed to pay Indiana for reproductions that were authorised under two separate contracts, one which gives the foundation the copyright and trademark to all images and sculptures Indiana produced between 1960 and 2004 and the exclusive right to reproduce and sell the images in exchange for 50% of the net income, and a second that gives the foundation the exclusive right to fabricate and sell certain sculptures, including Indiana’s famous LOVE, in exchange for 20% of the sale price.
In July 2019 a New York judge dismissed most of the case made by Indiana’s estate against MAF over the alleged failure to pay Indiana. The estate had filed the claims in response to the 2018 complaint. A similar ruling was handed down in January 2020 in which the estate claimed MAF’s rights to Indiana’s work ended after the artist died.
The next hearing will take place on 1 March 2022.