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Courts cannot dictate authentication board’s decisions, case concerning Calder works finds

Judge says he does not have power over Calder Foundation

A New York court has said it cannot compel a major artist’s authentication board to verify a work. The judge said that it could not dictate what the board, the Alexander and Louisa Calder Foundation, considered authentic or included in its catalogue raisonné. The decision was issued on 1 December by Justice David Saxe of the Appellate Division, First Department in Manhattan.

In 1975, the plaintiff, Joel Thome, a conductor, wanted to restage a 1936 production of Erik Satie’s composition Socrate, including theatrical stage sets designed by Alexander Calder which had been destroyed. Calder met Thome in New York, and later approved working plans that an architect prepared based on the original drawings; at Thome’s expense, the stage sets were completed, Thome says. Calder died in 1976, before seeing the completed sets.

In 1997, Thome decided to sell the sets, and submitted the necessary documentation to the Calder foundation for authentication and inclusion in its catalogue raisonné. But the foundation did not include the works. In 2005, “people at the foundation” told Thome’s representative that a catalogue raisonné number would not be issued, he says.

In 2007, Thome sued the foundation, seeking a judgment declaring that the sets were authentic, an injunction compelling inclusion of the works in the catalogue raisonné, and damages for product disparagement and breach of contract. Without a catalogue raisonné number, Thome says, the works are unmarketable, because refusal or failure to include a work is tantamount to a determination that it is not authentic. He argued that he has been unable to sell the works because the offers he has received have been contingent on authentication by the foundation.

Dismissing the lawsuit, the appellate court said it found no duty on the part of the foundation to authenticate the work. There was no support for the idea that a court could force a private entity such as the Calder Foundation to include a particular work in its catalogue raisonné based on the court’s independent finding, and it would be inappropriate for the court to declare authenticity anyway, it said.

Such determinations are “complex and highly subjective”, involving opinions from experts who may disagree, and are “ill-suited” to a declaratory judgment from a court, which typically declares the legal rights of parties. Here, Thome was seeking a declaratory judgment on authenticity, which would “attempt to affect the art market generally”.

A court declaration would not even resolve Thome’s situation, the court said, because his inability to sell “is a function of the marketplace” and the art world’s “voluntary surrender” of authenticity decisions “to a single entity”.

Originally appeared in The Art Newspaper as 'Courts cannot dictate authentication board’s decisions'