A New York state trial court has dismissed dealer Marc Jancou’s suit against artist Cady Noland for tortiously interfering with his contract with Sotheby’s arising from her disavowal of her work Cowboys Milking (1980) just before it was to be sold at auction. This decision follows the earlier ruling in the same case in November, 2012, which also dismissed Jancou’s case against Sotheby’s for breach of contract. Read about Jancou’s initial filing of the $26 million lawsuit here.
Jancou alleged that Noland tortiously interfered with his contract with Sotheby’s to sell the work Cowboys Milking (1990), which Jancou consigned to Sotheby’s for sale, by disclaiming the work in November, 2011. Noland disavowed the work a few days before it was to be sold at Sotheby’s, after inspecting it and determining that it had sustained an unacceptable degree of damage. After Noland’s disavowal, Sotheby’s withdrew the work from auction. Jancou was particularly upset, as Oozewald (1989)–another of Noland’s works–had just sold for an unprecedented $6.6 million at Sotheby’s one day before Cowboys Milking was removed.
This case has been much watched in the art community because it addresses the limits of the Visual Artists Rights Act, 17 U.S.C. §106 (VARA). One of the few examples of moral rights in American copyright law, VARA is a federal statute that permits artists to protect their works or use of their name in connection with their artworks. VARA grants artists certain exclusive protections, such as the right to claim authorship, to prevent use of one’s name on a work the artists did not create. It also prevents the use of an artist’s name on any work that has been “distorted, mutilated, or modified” in a way that would damage the artist’s reputation. Exactly how much discretion an artist should have to make this determination and what standards should be applied are not clear, though other artists such as Richard Prince has disavowed works in the past.
Jancou’s lawyer Tom Sheridan stated that Jancou plans to appeal. He is also appealing the ruling dismissing his case against Sotheby’s for breach of contract. Sheridan stated that he hopes the appeal will clarify “the standards courts use” to interpret VARA. He continued that “permitting artists to determine those standards, such as how much damage constituted material damage and how much is just wear and tear is “like putting the fox in charge of the hen house.”
The next hearing in the appeal decision in favor of Sotheby’s is scheduled for June 6.
Source: The Art Newspaper