On 5 April 2018, a New York State court dismissed a complaint filed by the Mayor Gallery, a London-based art dealer, against Agnes Martin Catalogue Raisonné LLC (“AMCR”), Arnold Glimcher, the managing member of AMCR’s authentification committee and the owner of the Pace Gallery, Tiffany Bell, the catalogue’s editor, and other members of AMCR’s authentification committee for their refusal to include 13 artworks purportedly by Agnes Martin in the artist’s Catalogue Raisonné. The complaint sought more than $7 million in damages.

The complaint arose from the submission of 13 artworks to AMCR, a private non-profit organisation that authenticates and compiles a catalogue of works by deceased artist Agnes Martin. Prior to the formation of AMCR in 2012, the Mayor Gallery had sold those artworks, allegedly created by Martin, to four separate private art collectors. After AMCR was founded, the collectors each submitted their artworks to AMCR to be included in the catalogue, but AMCR declined after examining the works and the collectors’ accompanying applications. Before submitting the artworks to AMCR, each collector signed a non-negotiable “Examination Agreement” with AMCR. Pursuant to the agreement, AMCR had full discretion to accept or reject the artworks. The Agreement required AMCR to notify the collector in writing, but did not require AMCR to justify its decision. After AMCR declined to include one particular work- a painting entitled Day and Night– the Mayor Gallery refunded the purchaser and resubmitted the painting to AMCR, which again declined to include it in the catalogue. Prior to resubmitting the artwork, the Gallery signed an Examination Agreement with AMCR.

By the time the Gallery had filed its claim, it had refunded two of the four collectors and accepted the return of two artworks; the two remaining collectors retained ownership and possession of their respective 11 artworks on the condition that the Gallery prevails in the action. The Gallery alleged that AMCR’s refusal to approve each of the artworks was a declaration to the market that they were fake and rendered them to be worthless.

The court dismissed the Gallery’s complaint in its entirety on procedural grounds, finding that the Gallery failed to plead its claims with particularity and assert the required elements of its tort claims like malice, gross misconduct, fraud etc. on part of AMCR and/or its personnel.

The Examination Agreement provided that in the event that the party submitting any artwork for inclusion in the catalogue raisonné brought a claim against AMCR and that party lost its claim, it would be responsible for legal fees incurred. The court held that such provisions would be enforceable under New York law, and turned the matter over to a special referee to decide the amount of legal fees that would be reasonable for AMCR to recoup.

The court’s decision does not address substantive issues, including whether artist committees take on a duty of care to owners of artworks seemingly by an artist, where artist committees present themselves as authority over the authenticity, the extent of that duty, if any, and how that duty should be exercised.

This case clearly shows that a well drafted agreement recording the terms on which a catalogue raisonné committee will examine an artwork goes a long way to protecting the committee, especially on costs in the event of litigation.

In recent years, there has been a growing concern over frivolous lawsuits against art authenticators brought by unhappy claimants dissatisfied with an expert’s opinion relating to the authenticity of an artwork or their failure to include the artwork in the artist’s catalogue raisonné. The result of these lawsuits has led to authenticators, including scholars, academics, artist authentication boards and authors of catalogues raisonné, ceasing to practice their profession due to exorbitant costs of litigation. Many prominent artist foundations, including that of Andy Warhol, Keith Haring and Jean-Michel Basquiat, have dissolved their authentication board after being embroiled in expensive litigation. The New York State legislature has, since 2014, been trying to pass a bill to protect authenticators against frivolous claims. The bill, in its now revised form, is again pending before the New York State Senate and Assembly.

Azmina Jasani

Published 19 June 2018

Photo: © J. Paul Getty Trust.