NEW YORK—A second lawsuit alleging “antitrust and unjust enrichment” was filed against the Andy Warhol Art Authentication Board on Jan. 15 in U.S. District Court for the Southern District of New York, accusing the board of wrongfully denying authentic Andy Warhol artworks and of attempting to manipulate the market for the artist’s work.
The complaint, brought by New Jersey–based collector Susan Shaer, is related to a similar case filed in late 2007 by filmmaker and collector Joe Simon-Whelan, whose Warhol self-portrait was rejected by the authentication board on two separate occasions, in 2001 and 2003, despite prior authentication by Warhol associates and experts, according to his claim. Also named as defendants in the case are the Andy Warhol Foundation for the Visual Arts (which handles grantmaking, product licensing, artwork loans and sales), the Estate of Andy Warhol, and Vincent Fremont (the sales agent for the foundation).
Shaer owns a painting from the same series as Simon-Whelan, which consists of 12 identical Warhol self-portraits that depict the artist against a red background, head tilted slightly back and gazing directly at the viewer with a cool, blank expression on his face. According to the complaint, the series was created in 1965 “at Warhol’s direction, through his employee Paul Morrissey, from an acetate personally created and chosen by Warhol.”
Warhol and Morrissey personally authorized filmmaker Richard Ekstract to create 12 paintings in exchange for the use of expensive cameras, video recorders and related equipment that Warhol used to make several films, according to the complaint, which goes on to say that Ekstract arranged for the series of self-portrait paintings to be created from the acetate that Warhol provided. “This method of production was typical of Warhol,” the complaint asserts, and argues that “in so doing Warhol explicitly acknowledged his authorship.”
In 1990, Shaer submitted her self-portrait to the Warhol Estate, the predecessor of the Andy Warhol Art Authentication Board, which was formed in 1995. The estate rated it “C,” a designation which means “not able at this time to form an opinion.” Shaer was informed that her submission had been rated as such despite acknowledgment by the estate, in a letter dated Oct. 31, 1990, that the painting was made from an acetate transparency created by Warhol and that the estate had “no basis on which to doubt that the silkscreening of the work onto canvas was authorized by Andy Warhol,” the complaint states.
According to her lawsuit, in 2004, Shaer received a letter from the authentication board inviting her to submit the painting for review, and advising her that “additional information had come to the attention of the board since the date of the estate’s opinion letter.” Her complaint claims that, unbeknownst to her, “the board had adopted a policy of systematically rejecting works from the series as part of its campaign to enforce a self-serving vision of Warhol’s legacy.”
Shaer’s lawsuit alleges that the real purpose of the letter was to solicit submission of the painting so that she would be forced to sign a submission agreement, which would indemnify the board from any liability from their finding and allow it to reverse its decision at any time.
Shaer has refused to submit the painting to the board, fearing that a rejection stamp, which would prevent the work from being sold as an authentic Warhol, is a “foregone conclusion,” according to the lawsuit. She “was able to sidestep this trap,” Shaer’s lawyer, Seth Redniss, told ARTnewsletter.
Simon-Whelan acquired his self-portrait from Lang & O’Hara Gallery, New York, in 1989 for $195,000. His suit claims the painting had been authenticated on multiple occasions by both the Foundation and the Estate, including by Fred Hughes, who was sole executor of the estate until he died in 2001, and by Fremont.
In preparation for an attempt to sell the painting in 2001, when its value was estimated at about $2million, Simon-Whelan submitted the painting to the board for authentication, but it was stamped “DENIED” on the back in ink without any explanation, the suit claims. At Fremont’s urging, Simon-Whelan then spent more than a year researching and documenting the provenance of the work, and in 2003 resubmitted the painting, with evidence that “demonstrated Warhol’s personal role in the creation and use of the Series,” his lawsuit claims. Nevertheless, it was again stamped “DENIED.”
Nicholas Gravante Jr., a partner in the firm of Boies, Schiller & Flexner, New York, who is representing the Warhol Authentication Board in both the Simon-Whelan and the Shaer cases, told ARTnewsletter that the issue of the authenticity of the Ekstract self-portraits is “a sideshow and very small part of the larger case, but even there, the evidence demonstrates that the Authentication Board got it right. The real issue in dispute in the lawsuit concerns Simon-Whelan’s attempt to side-step the submission agreement he signed, which prohibits him from bringing precisely this kind of lawsuit.”
“He is alleging that members of the Warhol Foundation and Authentication Boards entered into an unlawful conspiracy to deny authenticity to this work because they secretly wanted to drive up the price of Warhol work,” Gravante said. “We have yet to see a single document or any other evidence that supports that allegation. Neither the members of the Foundation Board nor members of the Authentication Board have ever had any incentive to deny authentic works.” The two sides are currently engaged in the discovery process, with a deadline set for early summer.
The ‘Bruno B’ Portrait
“I would say this case shows the Warhol foundation’s intent is targeting owners of Warhol art from the early 1960s,” Redniss told ARTnewsletter, “baiting them into submitting the art for sham examination, and then mutilating those original paintings like they did with the self-portrait that Warhol personally chose as the cover of his first catalogue raisonné in 1970.”
Redniss was referring to another red self-portrait from the same series, which the artist had signed and inscribed “To Bruno B Andy Warhol 1969” for his friend Bruno Bischofberger. Warhol selected that work, repeated several times, for the cover of his catalogue raisonné. It is now owned by dealer Anthony d’Offay, who was reportedly forced to repurchase the work from a buyer after the Warhol Authentication Board twice stamped it “DENIED,” according to court documents.
The Warhol authentication board ruled in 2003 that d’Offay’s painting “is not the work of Andy Warhol,” but simultaneously declared that the work “was signed, dedicated and dated by him.”