Second Circuit - Art Litigation: Claim Over Painting Time-Barred But Claim For Frame Timely

In Marchig v. Christie's, 11-461-cv (July 12, 2011)(summary order), a plaintiff consigned an artwork to Christie's in 1997 she thinks it was painted by Michelangelo's tutor.   Christie's tells her it is a nineteenth-century German work. Christie's advises her to change the frame, then sell it.   She ok's the sale, but says nothing about the frame. Christie's sells the painting in 1998 for $21,850.  In 2009 Christie's tells her it is probably a work by Leonardo da Vinci.   She sues in 2010, claiming the work is worth $150 million.

A short, informative and Solomonic opinion on the law of consignments, sales, and authentication claims.

Marchig v Christie's

Result:  claim against the painting is time-barred, but the Second Circuit reversed and remanded, holding that the claim for the return of the frame was timely.

 http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Birth of the Virtual Gallery? ArtWeLove.com at Pulse Art Fair

Founder by Quentin Curry

Ran into Laurence Lafforgue, founder of Artwelove.com at their booth at the Pulse Art Fair on the occasion of their launch of Shop.artwelove.com.   Laurence works with the rising stars of the art world to make their works available to fans through affordable, limited edition prints that can be purchased over the internet.  The prints arrived unframed, but the site provides framing suggestions from the artists, together with a three-minute video interviewing the artist about the particular artwork.

The interview with Quentin Curry is found here.

The prints start at $50 and are selling like hotcakes - so whether you buy as an investor, an art lover or both, check them out.

From AWL's FAQ page:

What is a limited edition?


An edition is a limited run of a particular piece of artwork. Once an edition is closed, the print cannot be reproduced, ever. ArtWeLove works directly with artists to offer editions for sale solely on Shop.ArtWeLove.

How unique is my limited edition piece?

Your piece is one of a limited run specifically created with the artist, and approved in sizes and print types by the artist. No additional prints will be made of this unique work -- and it is only available through Shop.ArtWeLove.com. Each print comes with a certificate of authenticity which is numbered and signed by the artist.

How do I know these prints are authentic fine art works?

All of our projects are developed under the artist's direct supervision. Each print is paired with a certificate of authenticity, signed by the artist, and is individually numbered. All our prints are created using some of the finest archival pigment inks available, and they are printed on high quality fine art or photo-base paper. For prints in particular, we use a “Giclee” printing process, which provides better color accuracy than other means of reproduction. Giclee printing is an industry accepted standard for fine art reproduction, used throughout museums and galleries; they can be worth thousands of dollars. Numerous examples of Giclee prints can be found in New York City at the Metropolitan Museum, the Museum of Modern Art, and in Chelsea galleries. Some auctions of Giclee prints have fetched $10,800 for Annie Leibovitz, $9,600 for Chuck Close, and $22,800 for Wolfgang Tillmans (April 23/24 2004, Photographs, New York, Phillips de Pury & Company).

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:

Examinations



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.