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2009 Calder case: A court of law is no place to authenticate art

The case set a legal precedent about the legal duty of authenticating bodies

Authentication committees and authors of catalogues raisonnés play a critical role in the art world. They are generally put together by people who have a special expertise in the work of an artist: scholars, dealers who have represented the artist, family members or representatives of the artist’s estate. Without the imprimatur of an authentication committee or the creators of a catalogue raisonné, a work of art may be virtually unmarketable.

The art world has an interest in protecting the ability of these experts to provide their best professional opinions without fear of legal exposure. But their decisions can have substantial financial and art historical implications, so the market has an interest in holding them accountable if they engage in unlawful behaviour. The decision by the federal district court to permit an anti-trust complaint against the Andy Warhol Foundation and the Andy Warhol Authentication Board brought by Joe Simon-Whelan in 2007 (subsequently abandoned in 2010) represents one judicial reference point in striking the balance between freedom and accountability. A case decided in 2009 provides another.

In 2009, a court held that the Calder Foundation, as author of the artist’s catalogue raisonné, had no legal obligation to give an opinion on a work of art.

The case was brought by Joel Thome, who alleged that in 1975 he approached Alexander Calder to discuss the re-creation of stage sets the artist had designed for a 1936 production of an Erik Satie composition and the mounting of a new production. Calder agreed to the re-creation of three versions of the set: a full-size set, one for smaller theatres, and a maquette. Working from drawings of the original set designs, a set of plans was prepared by an architect and approved in writing by Calder. The sets were constructed, but Calder died before his picture could be taken with them. The production was staged a year later.

In 1997, Thome decided to sell the sets, and supplied documents to the Calder Foundation seeking to have the sets authenticated and included in the catalogue raisonné. Despite conversations Thome alleged he had with the foundation indicating that the works would be included, they were never given an authentication number. Thome alleged that as a result he has been unable to sell the sets despite interest from buyers.

Thome sued the foundation, as well as its director and a number of its trustees, seeking a declaratory judgment that the works are authentic, an injunction ordering the foundation to include the work in the catalogue raisonné, and damages. The case was dismissed by the original trial court; the dismissal was affirmed on appeal.

The core question in the case was whether the foundation owed any legal duty to Thome, either because it was a not-for-profit corporation, or because of promises that it allegedly made to Thome, or because of “its unique position as the sole arbiter of whether work will be included in Calder’s catalogue raisonné”.

The court concluded that no such duty existed, and also stated that even if it concluded that the work was authentic, it had no authority to compel a private entity such as the Calder Foundation to include the work in the catalogue since it is a voluntary and private undertaking. Therefore, “neither the creation of such a catalogue nor its inclusion or exclusion of particular works creates any legal entitlements or obligations”.

Even if the art market accepts the foundation’s determinations of authenticity as authoritative, “that fact alone does not give a court the right to dictate what the foundation will include in that catalogue, just as no court has the authority to compel a scholarly author of a treatise on Calder to include a listing or discussion of a particular work”.

The court then turned to Thome’s request for a declaratory judgment that the works are authentic. The court ruled that it would be inappropriate as a legal matter, and ineffective as a practical matter, to issue such a determination. The court concluded that this is not the kind of decision that is suitable for a court to make because “art authentication involves the exercise of [an] expert’s informed judgment… is highly subjective, and even highly regarded and knowledgeable experts may disagree on questions of authentication”.

Without the agreement of a recognised market authority—in this case, the foundation—the opinion of a court will not be accepted as meaningful by the market. The court noted that this was the result in a case from 1993 also involving a Calder, Greenberg Gallery vs Bauman, in which the judge determined that a Calder sculpture was authentic. (In that case, the court was obliged to make the finding of fact in order to adjudicate the rights of the individual parties to the dispute—the current owners, who claimed that they had been sold a forgery, and the former owners, who maintained they had not.) The court’s judgment was not meant to establish the authenticity of the piece to the world at large—and, indeed, did not. Even though the sellers won, the market continued to rely on the buyers’ expert, the late Klaus Perls, who believed the sculpture to be a forgery, and the new owners were left with a virtually valueless work of art. Nineteen years later, it remains unsold.

In the Greenberg case, the court acknowledged that the art world might not accept its opinion but concluded that this was simply not its problem. “This is not a market…but a court of law, in which the trier of fact must make a decision based on a preponderance of the evidence.” The court in the Thome case made essentially the same point. “If buyers will not buy works without the foundation listing them in its catalogue raisonné, then the problem lies in the art world’s voluntary surrender of that ultimate authority to a single entity,” it said.

Having said that the Calder Foundation did not have a legal obligation to authenticate a given work of art, the court then suggested that a failure to authenticate could support a claim for product disparagement, a form of defamation in which the plaintiff must prove publication of a false statement to a third person, malicious intent, and special damages. The court said that this would constitute a substantial expansion of the scope of disparagement claims, as a failure to speak has never been held to satisfy the publication requirement. The court noted, however, that because the art market treats non-inclusion in a catalogue raisonné as a conclusion that the work is a fake, this tended to support the availability of the disparagement cause of action in this context. The court’s view on this issue is not legally binding as it did not reach the question in Thome’s case. Instead, it ruled that the disparagement claim was time-barred.

The court did not address the issue of how it could find that a work had been disparaged without making a factual determination that the work was authentic—in effect, engaging in the authentication process itself. Presumably, this is something that this court would be reluctant (or even unwilling) to do, given its earlier statements about a court’s role and competence.

So where does that leave us?

While the court in the Thome case acknowledged that authors of catalogues raisonnés may have a crucial art market role, the case establishes that as a general matter they have no legal obligation to render an opinion on a given work.

Courts sometimes do make findings involving authenticity in the course of resolving disputes, and the court in the Thome case appeared open to a tort law claim directly against authors of catalogues raisonnés. But adjudication of such a claim could ultimately be an expensive and fruitless venture for the claimant. Even if a claimant could prove that the failure to authenticate a work was the result of unlawful conduct, he might not succeed in proving that the work is authentic—at least not in a way that will satisfy the market. As we saw in the Greenberg case, the market is not likely to privilege a court’s finding of authenticity over that of the market’s recognised expert. The Thome case may ultimately stand as yet another illustration of the fact that some grievances in the art world do not have a legal remedy. n

The writer is an art law expert, Of Counsel at Patterson Belknap Webb & Tyler, and former general counsel at Christie’s Inc. Carrie Trowbridge, associate general counsel at New York University, assisted with this article