In 1936, the American Sculptor and artist Alexander Calder created a set for Erik Satie’s musical composition Socrate. The set was later destroyed, but in 1976 Joel Thome, a musician, composer and conductor of contemporary music,sought to recreate the set. Calder agreed to the reconstruction by writing on the set plans: “I have looked at the drawings & find them OK, and think everything OK, & construction can begin when you are ready.” Calder died before the sets were completed and the production was performed.
In 1997, Thome decided to sell the work. Before he could, however, he needed to have the the Alexander & Louisa Calder Foundation authenticate the work and include it in the Foundation’s Calder catalogue raisonné. Without the authentication, the work was essentially unmarketable.
Over the years, despite repeated requests, the Foundation refused without explanation to included the work in its catalogue raisonné. In response, Thome brought an action in New York state court to compel them to do so.
The court was sympathetic to Thome’s plight:
The allegations evoke our sympathy for plaintiff and some puzzlement at the lack of a formal response. Many, if not all, of the legal issues raised here might have been avoided had the Foundation provided plaintiff with some explanatory response to his submission.
Nevertheless, the The court could find no legally enforceable duty arising from the Foundation’s not-for-profit status, or its explicit or implicit promises or assertions, or its unique position as the sole arbiter of whether work will be included in Calder’s catalogue raisonné.
Interestingly, however, the court did not reach the question of whether a foundation’s denial to authenticate could open the foundation to liability to the tort of product disparagement. This tort requires a plaintiff to prove:
(1) falsity of the statement;
(2) publication to a third person;
(3) malice (express or implied); and
(4) special damages
Here the second element presented a particularly difficult problem for the plaintiff because the Foundation had not made an affirmative statement that the work was not authentic. Nevertheless, the court recognized the possibility that “as a practical matter, the denial of authentication is arguably indistinguishable from a direct assertion of inauthenticity.”
Unfortunately the court was not able to answer this question because of the one-year statute of limitations that applied to the cause of action.
Thome v. Alexander & Louisa Calder Foundation, 2009 WL 425559 (1st Dept 2009).
Does an Artist’s Foundation Have a Duty to Authenticate?
In 1936, the American Sculptor and artist Alexander Calder created a set for Erik Satie’s musical composition Socrate. The set was later destroyed, but in 1976 Joel Thome, a musician, composer and conductor of contemporary music,sought to recreate the set. Calder agreed to the reconstruction by writing on the set plans: “I have looked at the drawings & find them OK, and think everything OK, & construction can begin when you are ready.” Calder died before the sets were completed and the production was performed.
In 1997, Thome decided to sell the work. Before he could, however, he needed to have the the Alexander & Louisa Calder Foundation authenticate the work and include it in the Foundation’s Calder catalogue raisonné. Without the authentication, the work was essentially unmarketable.
Over the years, despite repeated requests, the Foundation refused without explanation to included the work in its catalogue raisonné. In response, Thome brought an action in New York state court to compel them to do so.
The court was sympathetic to Thome’s plight:
Nevertheless, the The court could find no legally enforceable duty arising from the Foundation’s not-for-profit status, or its explicit or implicit promises or assertions, or its unique position as the sole arbiter of whether work will be included in Calder’s catalogue raisonné.
Interestingly, however, the court did not reach the question of whether a foundation’s denial to authenticate could open the foundation to liability to the tort of product disparagement. This tort requires a plaintiff to prove:
(1) falsity of the statement;
(2) publication to a third person;
(3) malice (express or implied); and
(4) special damages
Here the second element presented a particularly difficult problem for the plaintiff because the Foundation had not made an affirmative statement that the work was not authentic. Nevertheless, the court recognized the possibility that “as a practical matter, the denial of authentication is arguably indistinguishable from a direct assertion of inauthenticity.”
Unfortunately the court was not able to answer this question because of the one-year statute of limitations that applied to the cause of action.
Thome v. Alexander & Louisa Calder Foundation, 2009 WL 425559 (1st Dept 2009).