Cady Noland, Cowboys Milking, 1990.
Sotheby’s auction house has emerged victorious in a battle over a Cady Noland artwork it withdrew from auction in November 2011.
A New York state appellate court affirmed a trial court decision in favor of Sotheby’s this morning, likely ending a high-stakes battle between the auction house and New York’s Marc Jancou Contemporary. Jancou had sought $26 million in damages, claiming Sotheby’s breached its consignment agreement with Jancou when it bowed to Noland’s last-minute demand that her Cowboys Milking (1990), a silkscreen print on a 1/16th-inch-thick aluminum sheet, be withdrawn from auction due to damage to the artwork. In doing so, she invoked the Visual Artists Rights Act of 1990 (“VARA”), part of the Copyright Act that protects artists’ integrity and reputation.
Jancou, in his pleadings, had invited the court to address questions concerning how much and under what circumstances a living artist can control the market for her own work by invoking VARA. The appellate court declined Jancou’s invitation, announcing in a brief two-paragraph order that it was upholding the trial court’s decision granting summary judgment in favor of Sotheby’s. That decision was based strictly on the language of Jancou’s consignment agreement with Sotheby’s, which gave Sotheby’s the right to withdraw Cowboys Milking “at any time before the sale” if, in Sotheby’s judgment, “there is doubt as to its authenticity or attribution.” Because Noland, on the eve of the auction, told Sotheby’s that “her honor and reputation [would] be prejudiced as a result of offering [it] for sale with her name associated with it,” the court held that Sotheby’s was within its rights to pull the piece.
Jancou claimed any damage to the work was “slight” and was backed by New York-based contemporary art conservator Christian Scheidemann, whom he had retained to restore the work and who stated that “compared to many other aluminum sheets [by Noland] this particular work is in very good condition.” But today’s decision relies exclusively on the terms of the contract between Jancou and Sotheby’s, and does not take up factual issues concerning the work’s condition, or the question of whether Cady Noland acted improperly in asserting VARA claims under the circumstances.
Thomas I. Sheridan III, Jancou’s lawyer, declined to comment. A representative of Sotheby’s could not be reached immediately.
