Court finds for artist who disowned work before auction
Consignor had sought damages after Sotheby's withdrew the lot
By Laura Gilbert. Web only
Published online: 30 May 2013
In a case with implications for artists’ rights and auction house contracts, a New York state court dismissed on 1 May a $6m lawsuit brought against artist Cady Noland by dealer Marc Jancou.
The suit alleged Noland interfered with the contract to sell the work Cowboys Milking, 1990, owned by Jancou, when she disowned it in November 2011, a few days before it was scheduled to be auctioned at Sotheby’s. Sotheby’s withdrew the work from the sale at Noland’s request. “She didn’t want her name associated with the work, because it was damaged,” says her lawyer, Daniel Brooks of Schnader Harrison Segal & Lewis.
Jancou plans to appeal, says his lawyer Tom Sheridan of Hanly Conroy. Jancou is also appealing the same court’s November 2012 ruling dismissing a case filed against Sotheby’s for breach of contract after it withdrew Cowboys Milking from auction.
When Noland disclaimed the work, she was asserting her rights under a federal law, the Visual Artists Rights Act (Vara), that permits an artist to prevent use of his or her name as the author of a work “in the event of a distortion, mutilation, or other modification” that would injure the artist’s reputation.
The consignment contract permitted Sotheby’s to withdraw the work if the auction house doubted its attribution. The court ruled for Sotheby’s, given Noland’s assertion of her Vara right to prevent the use of her name in connection with Cowboys Milking.
Because Sotheby’s had not breached the contract, Noland could not have interfered with it, the judge ruled in open court on 1 May.
Sheridan hopes the appeals will provide “clarification of the standards courts use” to interpret Vara. Permitting artists to determine those standards, such as how much damage constitutes material damage and how much is just wear and tear, “is like putting the fox in charge of the hen house”, he says.
The next hearing in the appeal of the decision in favour of Sotheby’s is scheduled for 6 June. Sotheby’s did not respond to requests for comment.
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