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Calder Lawsuit May Raise Bar For Authentication Committees

In a case that could have significant implications for artist authentication committees and foundations, the appellate division of the New York Supreme Court is expected to deliver a decision by late spring on whether the Alexander Calder authentication committee is obligated to rule on the attribution of every artwork submitted to it.

NEW YORK—In a case that could have significant implications for artist authentication committees and foundations, the appellate division of the New York Supreme Court is expected to deliver a decision by late spring on whether the Alexander Calder authentication committee is obligated to rule on the attribution of every artwork submitted to it.

Last spring, the Calder Foundation, New York, prevailed in a lower court in a motion to dismiss a lawsuit by a collector who had submitted a work to the authentication committee in 1997 that he later sought to sell. The foundation argued it was under no legal obligation to render an opinion on the work. Oral arguments were made in an appeal by the collector in late April of this year, and a decision may come as soon as next month.

“The lower court erred in its decision,” said Richard A. Altman, attorney for Joel Thome, the New York–based owner of the work. Thome had sought to sell a reproduced 1936 stage set by Calder, but found that prospective buyers were unwilling to purchase the work without an attribution by the authentication committee. “We are stating that a nonprofit foundation, such as the Calder Foundation, which asks collectors to submit all works by Calder for authentication and inclusion in its catalogue raisonné, has as its educational function the obligation to make that catalogue as complete as possible,” Altman told ARTnewsletter. “Joel Thome submitted material to the foundation, and the foundation is contractually obligated to consider the material and make a determination. You can’t just do nothing.”

Altman added that the Calder Foundation’s numerical listing of works by the artist amounts to a “stranglehold on the market,” making sales of work without its authentication impossible. Should Thome win the appeal, the case would then return to the lower court for an assessment of damages, which Altman said would include the $175,000 asking price of the work and legal costs. Neither the Calder Foundation nor its attorney responded to requests for comment.

In 2004 and 2005, Thome, a musician, composer and conductor, received separate offers of $150,000 and $175,000 for a 1936 stage set by Calder that had been destroyed in the 1930s and re-created in 1975 under the artist’s supervision, according to court documents. Thome, who paid for the fabrication of the work—which consists of a large stage set, a smaller version suitable for more intimate theatrical venues, a maquette and related documents—first sought to sell it in 2004. Both prospective buyers required the stage set to be officially listed as part of Calder’s body of work in the catalogue raisonné, which was published and is periodically updated by the Calder Foundation’s authentication committee.

For reasons that have never been stated, the foundation has not listed this stage set in the catalogue raisonné. According to Thome, the artist’s grandson, Alexander Rower, who is the chairman and director of the Calder Foundation, acknowledged the reproduction was a work by his grandfather. In an affidavit submitted to the court, Thome claimed that Rower “promised to me that the pieces would be included in the Calder catalogue raisonné in a manner to be determined (perhaps in a special section for theatrical sets), to be published in the future.”

In a series of e-mails sent between December 2004 and March 2005, Shokan, N.Y.–based collector Lincoln Stoller, a prospective buyer who offered $175,000 to Thome, stated that “all our plans hinge on the issuance of a catalog number.” At another time, one of his e-mails stated that “if they have not been assigned numbers, then we’ve got a problem. In an e-mail cited in Thome’s complaint, Stoller called the refusal of the foundation to either list or formally disavow the stage set “a cat and mouse game.”

Other Lawsuits Against Authentication Committees

Other artist authentication committees have also been pressed to make similar decisions because of the importance of their rulings in the market. The Jean-Michel Basquiat Authentication Commit­tee, for example, was sued by Swedish collector Gerard de Geer early last year for refusing to authenticate the painting Fuego Flores, which de Geer had submitted to it along with a $100 application fee. The Basquiat committee initially declining to authenticate the work, stating that it did not have enough information to make a determination, but later declared the work genuine on the basis of additional materials that de Geer submitted for review (ANL, 12/23/08) and the lawsuit was settled.

In 2007, filmmaker Joe Simon-Whelan sued the Andy Warhol Art Authentication Commit­tee after it rejected a painting that he had submitted to it for authentication, claiming a “scheme of fraud, collusion, and manipulation” to control the market in Warhol’s artwork. The case is still pending in U.S. District Court, Southern District of New York.

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