Case against Warhol Foundation withdrawn

Joe Simon-Whelan spent three years trying to prove authenticity of a painting depicting the artist himself


A three-year court battle pitting London-based film producer Joe Simon-Whelan against the Andy Warhol Foundation over the authenticity of a painting came to an anticlimactic finale on 15 November, with the announcement of a settlement. Simon-Whelan, who had accused the foundation of “a 20-year scheme of fraud, collusion, and manipulation” to control the Warhol market, withdrew his case. “I don’t have any choice,” he said on 10 November, while a court hearing in the United States District Court, Southern District of New York was still ongoing. “I want this case to be dismissed. I can’t afford to go up against them. I don’t want to speak about it again or even hear about it. But I have no choice but to do this. I can’t fight this organisation, it’s too big.”

The Warhol Foundation spent nearly $7m on legal fees, according to a foundation statement. Foundation president Joel Wachs declared the expense “a tragedy” in a statement, describing the case as “a blatant attempt to shake down the foundation”.

The settlement terms required Simon-Whelan to admit there was no evidence the foundation “engaged in any conspiracy, anticompetitive acts, or any other fraudulent or illegal conduct in connection with the sale or authentication of Warhol artwork,” according to the 10 November hearing. A related case, brought by collector Susan Shaer, the owner of a painting from the same series as Simon-Whelan’s, was also settled.

The saga heated up in 2007, just as the Warhol market was exploding at auction, when Simon-Whelan filed a class-action case against the pop artist’s New York foundation. The case stemmed from Simon-Whelan’s 1989 purchase of a $195,000 red painting depicting Warhol. The painting had been previously authenticated by Warhol insiders, the late Warhol executor and foundation chairman Fred Hughes and sales agent Vincent Fremont, sold at Christie’s and then by a string of dealers including Daniel Templon, Ronald Feldman and Jonathan O’Hara, according to court papers. In 2001 Simon-Whelan submitted the painting to the Warhol Authentication Board, in order to complete a $2m sale, according to the case. The work was stamped “denied”. Simon-Whelan resubmitted the painting in 2003 with more evidence and was denied again. Other works from the same series, including one owned by collector Richard Ekstract, have also been denied. London dealer Anthony d’Offay owns another work from the group.

The painting was one of a series created around 1964-65 under an arrangement with Ekstract who gave Warhol $16,000 of video equipment and received an acetate and “express authorisation and instruction” to create a series of silk-screen paintings. Simon-Whelan’s case argues this outsourcing “is typical of Warhol”. The authentication board disagreed, sending a rejection letter that said the works were executed by a commercial printer who “received materials and specifications from another party, and never had any contact with Warhol himself”, according to court papers.

The foundation responded by calling Simon-Whelan’s allegations an effort to “bludgeon” the organisation, and “coerce” the art experts to declare his painting authentic, according to court filings.