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In the past few years, the work of artist James Turrell was featured simultaneously at the Guggenheim, the Museum of Fine Arts, Houston, and the Los Angeles County Museum of Art; a retrospective of Cindy Sherman’s work drew large crowds at the Museum of Modern Art; and Art Basel Miami Beach seemed to grow ever more popular. All very nice, but what has really riveted the attention of the art world in the last few seasons is the law. Lawsuits against artists (Richard Prince, William Eggleston), art galleries (Knoedler, Gagosian), auction houses (Christie’s, Sotheby’s), and other institutions (the Barnes Foundation, Fisk University) have arguably given risen to more interesting conversation than any recent displays of art. When did a law degree become the union card for making judgments on art?
As we all have seen, artwork can generate big money, and where money goes, lawyers and litigation follow. More recent lawsuits, though, are defining what art is, how it can be bought and sold, how literally to follow a donor’s wishes. The meaning of the legal term “due diligence” is far more debated these days than the Abstract Expressionist theory of “push-pull,” particularly when speaking about Abstract Expressionists.
Let’s start with lawsuits about the art itself. In May, a Puerto Rican art collector and dealer named Roderic Steinkamp brought a lawsuit against Chicago art gallery owner Rhona Hoffman for having lost a work of art that he had consigned to her. Well, sort of. He had entrusted to her a certificate of authenticity and a diagram for a Sol Lewitt wall drawing, not the wall drawing itself, and she somehow lost this paperwork. Big deal, you think: you ask the Sol Lewitt estate for a duplicate certificate and diagram, maybe pay a fee for the trouble, just as you would if you lost the deed to your house or car. However, the Lewitt estate said no. “We don’t give duplicates,” said Susanna Singer, long-time business manager for Sol Lewitt and now an advisor to the estate. “We don’t want two certificates out there, raising the question of which is the real one.”
The meaning of the legal term “due diligence” is far more debated these days than the Abstract Expressionist theory of “push-pull.”
That seems like an eminently solvable problem, but this is more than just an administrative issue. It’s the view of the estate that the certificate of authenticity and especially the diagram are the actual work of art; the paperwork is the art, rather than an installation of the wall drawing, and in this instance no installation appears to have taken place. Sergio Sarmiento, an art law professor at Fordham University School of Law, noted that “the question arises, what is the actual artwork: Is it the drawing, is it the performance of the drawing, is it the viewing of the drawing, or is it the certificate of authenticity? I think the Lewitt estate views the certificate and the maquette to be the artwork, and you don’t duplicate original art.”
If the Sol Lewitt case asked, what is a work of conceptual art, the Richard Prince lawsuit looked at the question of when an artist can make use of someone else’s images and call the result a brand new work of art. This issue dates back to 2008, when appropriation artist Prince made use of some photographic images he found in a 2000 book by French photographer Patrick Cariou called Yes Rasta, documenting a community of Rastafarians living in the mountains of Jamaica. Prince collaged many of these images directly onto his canvases, defacing them in limited ways (depicting an electric guitar in one Rastafarian’s hands and daubing paint onto the face, for instance), as well as adding other elements to the paintings. Prince claimed that his use of Cariou’s images was “transformative,” which is a permitted “fair use” of copyrighted images under the law, rather than stealing, since what he produced was new. Cariou, however, brought a copyright infringement lawsuit against both the artist and New York’s Gagosian Gallery, where the Prince paintings were exhibited (the gallery’s infringement occurred when it reproduced the artwork in a catalogue). He won in district court in 2011 and then lost in appellate court last spring. The decision of the appellate court is likely to reverberate for years to come.
Among the issues this lawsuit raised is whether appropriation — an art world term since the 1980s, referring to the use of another artist’s copyrighted images — has legal standing. Ruling against Prince, District Court Judge Deborah Batts viewed his work as pure stealing. “If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use … there would be no practicable boundary to the fair use defense,” she wrote. The appellate court took exception to that reasoning, claiming that “Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so.”
In other words, if the new work looks different enough, it’s OK. But the question remains: how much is enough? (And who is to judge? A judge?) A reading of copyright law was more essential than an interpretation of Prince’s artwork. The appeals court was convinced that the much larger size of Prince’s paintings, and the fact that they appealed to a different group of buyers, were important considerations. The one certainty is that more lawsuits, and more legal decisions, will follow.
Yet another important artist sued in recent years is photographer William Eggleston. The case followed a highly successful sale in 2012 at Christie’s of 36 large-scale (60” x 44”) digital prints, a number of which he had produced decades earlier in smaller (20” x 16”) sizes using the more labor-intensive dye-transfer medium. The auction raised $5,903,250, more than twice the $2.7 million presale estimate, with the money going to the Eggleston Artistic Trust, which plans to improve the storage and conservation of the artist’s prints and negatives. Howard Read, co-owner of New York’s Cheim and Read Gallery, which has represented the artist since 1984, saw the Christie’s auction as raising “the bar for Eggleston overall,” and presumably these high prices would be welcome news to the artist’s past collectors: what they owned now would be worth more. One of those collectors, however, Jonathan Sobel, brought a lawsuit against Eggleston in early April 2012, claiming that he had bought a number of those images when they were dye-transfers and part of “limited editions.” If an edition of an image is limited in quantity, and it is marketed and sold as such, then creating more would presumably lessen the value of each one and would seem to be a breach of contract.
So, what does “limited edition” mean? (You probably assumed you knew, right?) New York’s Arts and Cultural Affairs Law covering the sale of multiples, which includes graphic and photographic prints, as well as sculpture editions, states that “The number of multiples” shall “constitute an express warranty … that no additional multiples of the same image, whether designated ‘proofs’ other than trial proofs, numbered or otherwise, have been produced in an amount.” Muddying what might appear to be a straightforward understanding of what constitutes a limited edition is the increasingly regular practice on the part of photographers to create new versions of the same image at different sizes, using different technology or a different system of numbering. The new technology and size, Read claimed, produced prints that were substantially different than the dye-transfers and closer to Eggleston’s original conception.
George Lederman, the lawyer representing Sobel, stated that “the images that were sold at Christie’s are bigger, but they don’t look any different. They’ve been supersized, but there has been no new artistic exploration, and what we’re saying is, bigger is not new.” On the other hand, Josh Holdeman, Christie’s international director of 20th-century art and the organizer of the March sale, noted that “my definition of limited edition means you can’t produce identical objects.” Those looking for a new (better?) definition of “limited edition” that instructs artists, collectors, galleries, and publishers on what is and isn’t permissible will be disappointed, as Sobel’s lawsuit was dismissed.
The deep-pocketed Gagosian Gallery has also been the subject of a number of lawsuits, but the most noteworthy gallery to be sued in the past year was Knoedler and Company, which closed its doors in 2011 after 165 years in operation in the face of a spate of lawsuits charging that since the mid-1990s it had sold 20-plus fake or misidentified paintings by such artists as Franz Kline, Barnett Newman, Jackson Pollock, Mark Rothko, Clyfford Still, Willem de Kooning, and Robert Motherwell. Knoedler acquired these paintings from a small-time Long Island art dealer, Glafira Rosales, who claimed to have gotten them from a Mexican collector she refused to identify (she pled guilty this past summer to a scheme of selling fakes). Knoedler and its long-time president, Ann Freedman — who was fired by the gallery in 2008 and has since set up as a private dealer, but has also been named in the lawsuits — “had no reason” to doubt Rosales’s integrity, according to Freedman’s lawyer, Nicholas Gravante, Jr. Correspondence between Freedman and people with some expertise in these artists’ work has been held up to show that she had made efforts to verify their authenticity.
The question here, then, is, what comprises “due diligence”? What do we expect of art dealers when they sell us expensive artworks by important artists? Freedman let knowledgeable people view these paintings, but that is not the same as allowing a full-scale authentication process. When the International Foundation for Art Research examined an untitled Jackson Pollock that was purchased in 2002 for $2 million by Goldman Sachs co-chairman Jack Levy, its experts would not authenticate the work. (Levy’s money was refunded.) In 2009, after a forensic analysis, the Dedalus Foundation, which represents the Robert Motherwell estate, concluded that a purported Motherwell “Elegy” was not by the artist. (A lawsuit naming Rosales and another dealer followed and was resolved with the repayment of the buyer’s $650,000 and another $200,000 to the Dedalus Foundation.) One of the lawsuits alleged that “Freedman exaggerated certain experts’ informal impressions to make fraudulent assertions bolstering the impression the work was authentic.”
Amidst the charges and counterclaims, these lawsuits reveal, among other things, that establishing authenticity is no easy task. The International Foundation for Art Research didn’t prove that Pollock was a forgery; instead, its experts could not reach an opinion one way or another and so announced that it could not make a definitive attribution to the artist. The Dedalus Foundation’s 2009 conclusion about the “Elegy” overturned an initial finding a few years earlier that the work was an authentic Motherwell. If the experts aren’t certain, can art dealers such as Ann Freedman be held to a higher standard? Looks as though we need the courts to decide. The lawsuits could lead us to a discussion of what is unique in the paintings of Motherwell or Rothko, advancing our connoisseurship; in the meantime, our understanding of the term “due diligence” has grown.
The agreed-upon secrecy involving Glafira Rosales’s “source” of her paintings led to all this hassle, but not revealing information is a regular part of the art trade, especially in the auction field. In most major purchases at auction, the buyer and seller are rarely if ever identified for reasons of privacy — people with vast amounts of money and valuables don’t want to alert thieves to what they have, and auctioneers are happy to comply in order to get their business. That confidentiality, however, came up in two recent court decisions, both of which agreed that the identity of consignors could be kept sub rosa.
The first involved William J. Jenack Estate Auctioneers and Appraisers in Chester, New York, which put up for sale in 2008 a decorative Russian silver and enamel box from an unnamed consignor. Albert Rabizadeh offered the winning bid of $400,000 (the amount increasing to $497,398 when buyer’s premium was added) but failed to pay, coming up with the excuse that the auction house failed to identify the seller as required by state law. That reasoning led to a decision favoring Rabizadeh in district court, which was then overturned in appellate court last fall. The ruling stated that “the Statute of Frauds was not enacted to afford persons a means of evading just obligations; nor was it intended to supply a cloak of immunity to hedging litigants lacking integrity; nor was it adopted to enable defendants to interpose the Statute as a bar to a contract fairly, and admittedly, made.”
The second case, also decided last December, involved the sale at Sotheby’s in 2010 of an untitled 1961 Mark Rothko painting for $31.4 million. The painting had previously belonged to Dallas art patron Marguerite Hoffman, who had sold the artwork in 2007 for $17.6 million in a private sale to international financier David Martinez. Hoffman was not part of the consignment of the painting to Sotheby’s three years later, but she brought a lawsuit against Martinez and Robert Mnuchin, the Manhattan gallery owner who arranged the 2007 sale, because she had stipulated that she wanted to conceal her sale of the painting. Hoffman’s name wasn’t listed in the Sotheby’s catalogue, but people in Dallas knew she had owned that piece, especially people at the Dallas Museum of Art, where she and her late husband had once promised to donate the Rothko, among other artworks. It was within her right to sell the Rothko, but speculation about why she did so was a source of potential embarrassment, and her arrangement in 2007 required that the sale be kept quiet. Her lawsuit asked for $22.4 million in damages, but she was awarded just $500,000, which Hoffman called a “moral” victory but might otherwise be seen as yet another embarrassment.
The courts — in this case the US District Court of Appeals in northern California — did make one clear decision in recent years, striking down as unconstitutional the state’s 35-year-old Resale Royalty Act, which requires the payment to fine artists of 5% of the profit when their work is sold on the secondary market and either the seller resides in the state or the sale takes place in California. The ruling came in a class-action lawsuit brought against both Christie’s and Sotheby’s by the Sam Francis Foundation and the Estate of Robert Graham, as well as a number of individual artists, including Chuck Close. Judge Jacqueline H. Nyugen accepted the auction houses’ claim that California’s law, which had only known limited compliance over the years, violated the commerce clause of the US Constitution in that the law seeks to control commerce outside the borders of the state, a power only permitted to the federal government. She sided with the auction houses, whose lawyers argued that the state law was not viable without the ability to regulate commerce outside of California, noting that if resale royalties were “to apply only to sales occurring in California, the art market would surely have fled the state to avoid paying the 5% royalty.”
The case prompted New York Democratic Representative Jerrold Nadler to introduce legislation into Congress, the Equity for Visual Artists Act, which would take the provisions of the California resale royalties law and make them national. Don’t hold your breath waiting for that one to pass.
The portion of the legal community that focuses on the arts (literary, performing, and visual) is still small, in part because there aren’t really that many disputes requiring counsel, and also because the people most likely to be wronged are lesser-known artists without the resources to pay for lawyers. It was big money that drove the lawsuits most recently, but these cases are also notable because they ask basic questions, from what is art to who decides where and how it will be sold and displayed. They’re questions that in an earlier age might have been more a part of the general discourse but are now left to the courts to decide. Perhaps, if he wants more attention, James Turrell should write a legal brief.