Authentication committees and authors of catalogues raisonné play a critical role in the art world. They are generally made up of people who have a special expertise in the work of an artist – art historical scholars, dealers who have represented the artist's work, family members, and/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.

We noted in the Summer 2009 issue of The Legal Canvas that the art world has an interest in protecting the ability of these experts to provide their best professional opinions without fear of legal exposure. We also noted, however, that their decisions can have substantial financial and art historical implications, and that themarket therefore has an interest in holding them accountable when they engage in unlawful behavior. The decision by the federal district court to permit an antitrust complaint against the Andy Warhol Foundation, the Andy Warhol Authentication Board and others to proceed -- on which we reported in that issue -- represented one judicial data point in striking this balance.

In December, an appeals court in New York provided another. In the case of Joel Thome v. The Alexander & Louisa Calder Foundation, et al., the court held that absent an independent contractual responsibility to an applicant, the Calder Foundation, as author of a Calder catalogue raisonné, had no legal obligation to render an opinion on any given work of art.

Joel Thome, the plaintiff in the case, alleged that in 1975, he approached the artist Alexander Calder to discuss the re-creation of stage sets that Calder 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, a smaller one for smaller theaters, and a maquette, or model. 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. He subsequently submitted additional documents. Each submission was acknowledged in writing by the Foundation.

Despite conversations that Thome alleged he had with the Foundation indicating that the works would be included, the works were never given an authentication number. Thome alleged in his complaint that as a result, he has been unable to sell the sets despite interest on the part of a number of 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 works by Calder, an injunction ordering the Foundation to include the work in the catalogue raisonné, and damages under a number of different causes of action. The case was dismissed by the trial court. The appellate court affirmed that ruling.

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.

A court is just a court…

The court first 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 raisonné. Catalogues raisonné are voluntary and private undertakings. No one is compelled by any government regulatory body to issue a catalogue raisonné, or to include any particular work in it. 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. As a legal matter, the declaratory judgment mechanism is meant to be used as a way of determining the legal rights of parties to a dispute where the facts are not at issue. Here, the court was being asked to decide an issue of fact – whether the works are authentic. Since "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," the court concluded that it is not the kind of determination that is suited to being made by a court on a motion for declaratory relief.

Moreover, the court noted that while declaratory judgments are meant to bring resolution to a dispute, a declaration that the works are authentic would not do that. It would act, as the court put it, merely as a record that the decision of the Foundation was disputed – at best, an "advisory opinion." Without the concurrence of a recognized 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 involving a Calder, Greenberg Gallery, Inc. v. Bauman, in which the judge made a factual determination 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 that they had not. The court's authenticity finding 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' art expert Klaus Perls, who believed the sculpture to be a forgery, and the new owners were left with a virtually valueless work of art.

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 matter made essentially the same point. A court of law can make only the sorts of decisions that are entrusted to the courts. It is responsible for adjudicating matters of law. It is not responsible for rationalizing the art market.

If buyers will not buy works without the Foundation's 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. If it is immaterial to the art world that plaintiff has proof that the sets were built to Calder's specifications, and that Calder approved of their construction, then it will be immaterial to the art world that a court has pronounced the work "authentic." Plaintiff's problem can be solved only when buyers are willing to make their decisions based upon the Work and the unassailable facts about its creation, rather than allowing the Foundation's decisions as to what merits inclusion in its catalogue raisonné to dictate what is worthy of purchase.

But….

Having said that the Foundation did not have a legal obligation to authenticate a given work of art, the court suggested that a failure to authenticate could theoretically 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 recognized 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 product disparagement cause of action in this context. The court's view on this issue is not legally binding (mere dicta, as lawyers would say) as it did not actually reach the question in Thome's case. Instead, it ruled that the disparagement claim was time-barred.

The court also 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 sphere of competence.

The court also dismissed Thome's claims that the Foundation and its trustees had declined to authenticate his works because they wanted to manipulate the market and buy his works inexpensively. The claim was not only time-barred, but also lacked the sorts of allegations that supported the antitrust claim against the Warhol Foundation.

As we go to press, Thome has sought leave of New York's highest court to appeal the case.

Where does that leave us?

While the court in the Thome case acknowledged that authors of catalogues raisonné 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 as to authenticity in the course of resolving parties' disputes, and the court in Thome appeared open to a tort law claim directly against authors of catalogues raisonné. However, 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 take a court's finding of authenticity over that of the market's recognized expert.

Thus, even if the New York Court of Appeals reverses this decision, the Thome matter may ultimately stand as yet another illustration of the fact that some grievances in the art world do not have a legal remedy.