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In 2012's Art World, More Lawsuits Than Art

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Photographer Cindy Sherman has a retrospective at the Museum of Modern Art, the Whitney Museum of American Art holds its biennial, scores of museums in California combine to stage a series of exhibitions called "Pacific Standard Time" -- all very nice -- but what really has riveted the attention of the art world in the past season has not been the art but the law. Lawsuits against artists (Richard Prince, William Eggleston), art galleries (Knoedler, Gagosian), auction houses (Christie's and Sotheby's) and other institutions (the Barnes Foundation, Fisk University) have given risen to more (and more interesting) conversation than any displays of art over the past year. When did a law degree become the union card for making judgments on art?

Let's start with lawsuits about the art itself. In May, a Puerto Rican art collector and dealer, Roderic Steinkamp, brought a lawsuit against Chicago art gallery owner Rhona Hoffman for having lost a work of art that he had consigned to her. Well, sort of. He had entrusted to her a certificate of authenticity and a diagram for a Sol Lewitt (1928-2007) wall drawing, not the wall drawing itself, and she somehow lost this paperwork. Big deal: You ask the Sol Lewitt estate for a duplicate certificate and diagram, which it certainly has, maybe paying a certain fee for the trouble, just as you would if you lost the deed to your house or to your car. However, the Lewitt estate said no. It is the view of the estate that the certificate of authenticity and especially the diagram are the actual work of art; the paperwork is the art, rather than an installation of the wall drawing, and in this instance no installation appears not to have taken place.

If the Sol Lewitt case asks, what is a work of conceptual art, the Richard Prince lawsuit looks at the question of when an artist can make use of someone else's images and call the end result a brand new work of art. This issue dates back to 2008, when appropriation artist Prince made use of some photographic images he found in a 2000 book by French photographer Patrick Cariou called Yes Rasta. Prince claimed that his use of Cariou's images was "transformative" -- which is a permitted "fair use" of copyrighted images under the law -- rather than stealing, since what he produced was new. However, Cariou brought a copyright infringement lawsuit against both the artist and New York's Gagosian gallery where these paintings were exhibited (the gallery's infringement occurred when it reproduced Prince's artwork in a show catalogue), winning in district court in 2011, and the appeal was heard this past spring. The decision of the appellate court is likely to reverberate for years to come.

Among the questions that this lawsuit has raised is whether "appropriationism" -- an art world term since the 1980s, referring to the use of another artist's copyrighted images -- has any legal standing and what should happen to both the sold and unsold paintings from that Gagosian gallery exhibition.

Yet another important artist was sued this past spring, photographer William Eggleston following a highly successful sale in March at Christie's of 36 large-scale (60" x 44") digital prints, a number of which he had produced decades earlier in smaller (20" x 16") sizes using the more labor-intensive dye-transfer medium. However, one of those collectors of the earlier versions, Jonathan Sobel, brought a lawsuit against Eggleston in early April, claiming that you can't have two sets of "limited editions." If this case gets to trial, it may establish a legal definition of "limited edition" that instructs artists, galleries and publishers on what is and isn't permissible.

The most noteworthy gallery to be sued in the past year was Knoedler & Company, which closed its doors in November of 2011 after 165 years in operation in the face of a spate of lawsuits charging that since the mid-1990s it sold 20 (and perhaps more) fake or misidentified paintings by such artists as Franz Kline, Barnett Newman, Jackson Pollock, Mark Rothko, Clyfford Still, Willem de Kooning and Robert Motherwell. The Knoedler Gallery acquired these paintings from a small-time Long Island art dealer, Glafira Rosales, who claimed to have gotten them from a Mexican collector she refused to identify.

If the Eggleston lawsuit asks, What does "limited edition" mean, the lawsuits against Knoedler ask, What comprises "due diligence": What do we expect of art dealers when they sell us expensive artworks by important artists? Looks as though we need the courts to decide.

The courts, in this case, the U.S. District Court of Appeals in northern California, did make one clear decision in May, striking down as unconstitutional the state's 35 year-old Resale Royalty law, which requires the payment to fine artists of five percent of the profit when their work is sold on the secondary market and either the seller resides in the state or the sale takes place in California.

The portion of the legal community that focuses on the arts (literary, performing and visual) is still small, in part because there aren't really that many disputes requiring legal counsel and also because the people most likely to be wronged are lesser-known artists without the resources to pay for lawyers. It was big money that drove the lawsuits over the most recent art season, but these cases are notable because they ask basic questions, from what is art to who decides where and how it will be sold and displayed. They are questions that in an earlier age might have been more a part of the general discourse -- there was a time when art exhibitions elicited outrage and debate! -- but are now left to the courts to decide. Perhaps, if she wants more attention, Cindy Sherman should write a legal brief.