One of the many complexities in the Google Book Search Amended Settlement Agreement is the legality of Google’s digitization efforts abroad. As Robert Darnton reported in the New York Review of Books, there has been considerable resistance to the settlement agreement on the part of foreign governments. France and Germany both submitted memorandums to Judge Denny Chin of the Southern District of New York invoking lofty principles and the value of their culture heritage in opposing the book settlement. Now it’s clear that the opposition is not limited to Europe.
According to the Wall Street Journal’s China Realtime Report, Mian Mian, a Chinese author, has sued Google in Beijing “for an apology and 61,000 yuan ($8,921) for publishing part of her novel, Acid Lover.”
Though the trial is to be held tomorrow, it seems that Google is not very concerned –”Candy,” one of Mian’s books, is still accessible from the Google Book Search Website.
Mandarin Trading purchased Gauguin’s Paysage aux Trois for $11.3 million based on the appraisal of a world renowned Gauguin expert. Mandarin later came to find the painting was worth only $9 million, and the appraisal on which it relied was written by the company that in part was selling the painting. Mandarin sued, but a divided New York Supreme Court found that Mandarin could not sue for fraud because the appraisal was mere opinion and, because the painting was sold through middlemen, the selling/appraising company never knew about Mandarin and could not be held liable.
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).