Tuesday, January 26, 2010

Authentication, Artist Foundations and Catalogue Raisonnes

In Thome v. The Alexander & Louisa Calder Foundation, 890 N.Y.S.2d 16 (First Dept. 2009), the Appellate Division, First Department upheld a decision of Justice Charles E. Ramos dismissing a claim against the Calder Foundation.  

The plaintiff owned a work it believed was created by the late Alexander Calder.  Calder was an American sculptor and artist most famous for inventing the mobile.   The plaintiff sued because the Calder Foundation refused to include the work in the artist's catalogue raisonne.  A catalogue raisonne is a publication that purports to include an artist's entire oeuvre (body of work).

The Calder case came up after another case, Simon-Whelan v. The Andy Warhol Foundation for the Visual Arts, 2009 WL 1457177 (S.D.N.Y.) survived dismissal with allegations that the Warhol Foundation attempted to tamper with the market for Warhol works in violation of federal and state antitrust laws, to wit:

- The Board made unsolicited suggestions to Warhol owners that they apply for authentication;
- Foundation policies of authentication inconsistently applied;
- Board reversed prior determinations authenticating works;
- Board refused to authenticate works the Foundation previously tried to purchase;
- unlike other boards, Warhol Board not made up of independent and experienced scholars

(these are allegations only, at the pleading stage).  A visit to the Warhol Foundation website shows that they license Warhol's brand, the Bond No. 9 perfume pictured above is an example.

In Calder, however, the court dismissed the actions for declaratory judgment and product disparagement.  The court found that it did not have the power to declare the purported Calder work authentic nor to order the Calder Foundation to include it in the catalogue raisonne.  The court distinguished the law of France, where a French court has the power to appoint a neutral expert and to make determinations of authenticity.  According to the Calder court, a court may not act as a connoisseur, except to make rulings on authenticity that are related to actual cases or controversies before it.   In essence, the court found that its function is not to tell scholars what is real and what is not.

The court also found that the Calder Foundation had no duty to the plaintiff to authenticate the work and that the individual officers of the charity who were sued enjoyed immunity from suit.   The fact that the Calder Foundation might own Calder works and thus might enhance their value by restricting the market was not enough to survive dismissal.

Foundations vary greatly in practices, market power, and credibility.  There is no disputing that for certain artists, the foundations act in dictatorial and inappropriate ways, leveraging the artist's power far beyond what copyright law contemplates.

So if you own an artwork that you think is a Calder, how would you proceed?  From the Calder Foundation's website, you would fill out the following application:


Owners of works attributed to Alexander Calder may apply to the Calder Foundation for the examination of the work. The Calder Foundation does not charge a fee for examinations.

For the Foundation to consider the examination of a work, the owner must have previously submitted an Application for Registration and a 4” x 5” Ektachrome as well as a written request for an examination.

For works which the Foundation has agreed to examine, the owner will be provided with an Examination Agreement. The Examination Agreement must be executed and returned to the Foundation prior to the examination.

The Foundation does not provide certificates of authenticity and does not assist with appraisals or valuations.

To request an examination, please contact the Foundation directly.

Click here to download the Application for Registration in Adobe.pdf format.

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