Case Review: The Mayor Gallery v. Agnes Martin Catalogue Raisonné

November 12, 2019

By Yuchen Xie.

The Case: The Mayor Gallery Ltd. v. The Agnes Martin Catalogue Raisonné LLC et al., No. 655489/2016 (N.Y. Sup. Ct. 2019).

The authenticity of an artwork is essential to its value in the art market. If a work once attributed to a renowned artist is subsequently deemed inauthentic, its market value plummets to zero and it becomes an “orphan.”^[1] With the financial stake in artwork’s authenticity, many lawsuits have been brought against authenticators and catalogue raisonnés editors for negative opinions in the past few years, making experts’ liability a hot topic in the visual arts community. Notable cases include Simon-Whelan v. The Andy Warhol Found. for the Visual Arts^[2] and Thome v. Alexander & Louisa Calder Found.^[3]

A catalogue raisonné, is a compilation of reproductions and ownership details for works created by a specific artist, which is typically an authoritative reference about a given artist’s oeuvre. Among other benefits, catalogue raisonné helps collectors identify artworks, and protect the art market from forgeries.^[4] By declining to list a work of art in a catalogue raisonné, authors of these compilations effectively make a pronouncement on the authenticity of a work of art.

In the United States, statutory sources for the laws relating to art authenticity can be found in state laws, but the protection for art authenticators is very limited. The New York Arts and Cultural Affairs Law §13.01 specifies that whenever an art merchant, in selling or exchanging a work of fine art, furnishes to a buyer of such work who is not an art merchant “a certificate of authenticity or any similar written instrument”, it shall create “an express warranty for the material facts stated as of the date of such sale or exchange.”^[5] Partly in reaction to the lawsuits against authenticators, on April 11, 2016, the New York Senate agreed to review Bill S1229A, with a purpose to enhance protections under the law for individuals who are employed as art authenticators in the visual arts community,^[6] the law has been pending ever since, despite efforts by the legislators and the Art Law Committee of the New York City Bar Association.

The same year as the proposed bill aimed to provide protection for authenticators, a UK-based art dealer, the Mayor Gallery, filed a complaint against the Agnes Martin Catalogue Raisonné LLC (“AMCR”) in the New York Supreme Court in 2016. The plaintiff alleged that AMCR, established in 2012 for the purpose of compiling the catalogue, refused to include thirteen authentic Agnes Martin artworks which caused a loss to the Mayor gallery Ltd. of more than $7 million. ^[7]

Facts

Agnes Martin is a Canadian-born abstract expressionist and minimalist artist who became an American citizen in 1950. “She resided, was educated and worked in both New York City and New Mexico” and was “reclusive and eccentric and was hospitalized several times for schizophrenia.”^[8] To this day, Martin’s average sale price in the secondary market is $625,760, with the highest realized price of $10.69 million for her painting Orange Grove sold at Christie’s in 2016.^[9]

From 2010 to 2013, the Mayor Gallery in UK sold 13 works of art attributed to Agnes Martin to collectors Jack Levy, Patricia and Frank Kolodny (“Kolodny”), Sybil Shainwald, and Pierre Lachouchère. After the establishment of AMCR, each collector submitted the purchased works to AMCR for inclusion in the catalogue but the works were declined. The Mayor Gallery refunded the full purchase price plus tax to two collectors while the other two collectors agreed to retain possession of the pieces on the condition that the Mayor Gallery would establish that the artworks were authentic and marketable.^[10] Apparently the Mayor Gallery was unable to get the desired results and in 2016 they started legal action against AMCR and against Arnold Glimcher, managing member of the Agnes Martin authentication committee, director of the Agnes Martin Foundation, and owner of the Pace Gallery. Tiffany Bell, the catalogue’s editor, and the “members of the authentication committee” were also named as defendants.^[11]

Provenance

The court documents provide some insight into the provenance of four out of thirteen artworks involved in the lawsuit.

1. Day & Night, sold to Levy in September 2010, was signed and inscribed “to Delphine” on the reverse. The provenance suggested that Delphine Seyrig (an actress, film director, feminist, and friend of Martin’s) acquired the work directly from Agnes Martin in 1971 and sold the work back to the artist when she moved. Martin then sold it to Lenore Tawney, subsequently buying it back from Tawney for “twice what she had paid her” when Tawney needed money. Gallerist Sam Green in New York acquired the work in the 1980s, and “must have sold the work to [James Mayor, owner of the Mayor Gallery] at some point” since the two were reportedly friends.
2. Untitled, sold to Kolodny in December 2011, was acquired by the Mayor Gallery from Sam Green, who bought the work directly from the artist.
3. The Invisible, sold to Shainwald in December 2012, was acquired by the Mayor Gallery from Sam Green, who bought the work directly from the artist.
4. Untitled (Solitude), sold to Labouchère in October 2013, was also acquired by Sam Green from the artist at an unknown date, which the Mayor Gallery subsequently acquired from an “unknown owner” to whom Sam Green sold the work.

Undoubtedly, the AMCR studied the provenance for all 13 artworks; however holes in the history of ownership, such as missing dates or unknown previous owners proved unfortunate. Nexus with the same dealer may have pointed to problematic provenance. Historically, forgers are known to create fake provenance history, like Beltracchi who staged photos of his fakes as proof of their ownership by his family.

Causes of Actions

Plaintiff’s First Amended Complaint alleged seven causes of action: (1) product disparagement; (2) tortious interference with contract; (3) tortious interference with prospective business relations; (4) negligent misrepresentation; (5) gross negligence and breach of contract; (6) breach of implied duty of good faith and fair dealing, solely with respect to plaintiff’s resubmission of one particular work, Day and Night, given that the Mayor Gallery resubmitted the work after Levy’s submission with substantial supporting documentation testifying the work’s authenticity; and (7) violation of New York’s General Business Law § 349.^[12]

The Gallery sought more than $7 million in damages (the total amount of the original sale prices of the works at issue), as well as injunctive relief requiring the defendants to provide detailed reasons for their decisions or enjoining them from engaging in the purportedly deceptive business practices.^[13] In the Second Amended Complaint, the plaintiff dropped claims against the individual members of the authentication committees, clarified some aspects of the refund to collectors, and asserted a conflict of interest for Glimcher because of his control of AMCR and “economic interest [to reduce] the number of Agnes Martin artworks in the marketplace.”^[14]

Central to the plaintiff’s complaint is the allegation that by refusing to include the 13 works at issue in the catalogue, AMCR rendered the works worthless, and the gallery is now unable to offer for sale any of the works due to AMCR’s refusal. The fact that AMCR consistently ignored the Mayor Gallery’s follow-up correspondence led to the plaintiff’s belief that the decisions of non-inclusion were made cursorily.

Procedure

On April 3, 2018, the court granted the defendants’ motion to dismiss the First Amended Complaint in its entirety but allowed the Plaintiff to serve the Second Amended Complaint, which was filed on April 25, 2018 and eventually dismissed on July 2, 2019.^[15] Subsequently, the Mayor Gallery filed a notice of appeal in early August 2019, seeking reversal of the court’s decision dismissing all seven causes of action.^[16]

The Lower Court’s Reasoning

In the court’s decision, the most noteworthy part is its affirmation that “whether any catalogue raisonné’s inclusion or non-inclusion of an artwork has any bearing on a work’s value is a function of the art marketplace” and that “it is not for the court to determine what the art market should or should not credit as reliable.”^[17] Based on this reasoning, the court dismissed the product disparagement claim. The court also dismissed the tortious interference holding that “there are no allegations that any of the defendants were aware of the terms of the sale agreements between plaintiff and the collectors.”^[18] Likewise, the court found that plaintiff could not establish that the defendants intentionally acted to harm plaintiff’s prospective business relationships.^[19]

The court moved on to dismiss the negligent misrepresentation claim on the grounds that a privity-like relationship, an element required for the claim to stand, does not exist between the plaintiff and defendants.^[20] In dismissing the claims regarding gross negligence and breach of contract, the court cited that, according to the Examination Agreement between AMCR and plaintiff, “AMCR would examine the work in the manner AMCR, in its sole discretion, deems appropriate.”^[21] Further, the court noted that “merely alleging that breach of contract duty arose from lack of due care will not suffice to establish such a claim sounding in tort or contract.”^[22] The sixth claim was deemed “not separate and apart from” plaintiff’s fifth claim.^[23] Finally, the violation of New York Business Law claim was rejected due to the lack of any elements necessary to establish the claim.^[24]

Regarding the conflict of interest mentioned in the Seconded Amended Comlaint, the court held that there are no valid allegations that Glimcher controls AMCR. Further, in accepting plaintiff’s assertion that Glimcher controls AMCR, Glimcher’s personal financial motivation is rendered irrelevant.^[25]

Takeaways

The case has once again underscored the conflict between authenticators and art owners when an artwork at issue is rendered worthless because of authenticators’ opinions, even though what the authenticators provide are essentially expert opinions to inform the public and potential art buyers rather than warranties of any sort.

The court’s ruling in favor of the AMCR sets an undeniable precedent for the stronger protection of art authenticators from ungrounded accusations by art owners. In establishing that it is not for the courts to determine either the value of art or its genuineness, the court clearly defined its role in the authenticity disputes, intending to deter disgruntled art owners from suing authenticators for not including a work in the catalogue in the future. Moreover, the court’s emphasis on the Examination Agreement and enforcement of its legal fee-shifting provisions demonstrate that authenticators can rightfully avoid legal fees with a well-drafted contract even without a formal legislation in place.

However, with the unpublished decision made by a single trial-level state court, the case’s binding precedential value is ultimately limited. The tension between art owners and authenticators, given that the authenticators’ decisions can drastically change the market value of the artworks, is likely to continue. The key question here is how to promote a healthy relationship between the two parties, ensure effective communications, and clearly define accountability and liability.

Note: While updates regarding the appeal have not yet been published, Melvyn R. Leventhal, one of the attorneys representing the Mayor Gallery, according to Art Forum, was planning to cite the European Fine Art Fair’s (TEFAF) move introducing a new global vetting policy that excludes dealers, so that committees consist of experts with as little commercial interest in the art market as possible, when the case is heard in the appellate court.^[26]

Endnotes:

1. Hannah Schechter, Can the New York Legislature Bring Back Authentication Boards: The Effect of Proposed Legislation on Liability for Art Authenticators, 40 Colum. J.L. & Arts 141 (2016). ↑
2. Simon-Whelan v. The Andy Warhol Found. for the Visual Arts, No. 07 Civ. 6423 (LTS) (S.D.N.Y. 2009). ↑
3. Thome v. Alexander & Louisa Calder Found., No. 600823/07 (N.Y. Sup. Ct. 2008); aff’d 70 A.D.3d 88 (N.Y. App. Div. 2009).  ↑
4. What is a Catalogue Raisonné, Masterworks Fine Art (2018), https://www.masterworksfineart.com/what-is-a-catalogue-raisonne/ ↑
5. See N.Y. ARTS & CULT. AFF. LAW § 13.01 (McKinney 2011). ↑
6. N.Y.S. ASSEMB. 238, MEMORANDUM IN SUPPORT OF A1018, Red. Sess. (N.Y. 2016). ↑
7. See Complaint, The Mayor Gallery Ltd. v. The Agnes Martin Catalogue Raisonné LLC et al. No. 655489, at 1 (N.Y. Sup. Ct. 2016). ↑
8. Id. ↑
9. The data is acquired through CollectorIQ’s database at https://collection.collectoriq.com/artists/15969/agnes-martin ↑
10. See Complaint, The Mayor Gallery Ltd. v. The Agnes Martin Catalogue Raisonné LLC et al. No. 655489, at 6-16 (N.Y. Sup. Ct. 2016). ↑
11. Id. at 1-9. ↑
12. See Redacted First Amended Complaint, The Mayor Gallery Ltd. v. The Agnes Martin Catalogue Raisonné LLC et al., No. 655489, at 5 (N.Y. Sup. Ct. 2017). ↑
13. Id. ↑
14. See The Mayor Gallery Ltd. v. The Agnes Martin Catalogue Raisonné LLC et al., No. 655489, at 3-4 (N.Y. Sup. Ct. 2019). ↑
15. Id. at 1. ↑
16. See Notice of Appeal, The Mayor Gallery Ltd. v. The Agnes Martin Catalogue Raisonné LLC et al., No. 655489, at 7 (N.Y. Sup. Ct. 2019). ↑
17. The Mayor Gallery Ltd. v. The Agnes Martin Catalogue Raisonné LLC et al., No. 655489, at 9 (N.Y. Sup. Ct. 2019). ↑
18. Id. at 11. ↑
19. Id. at 12. ↑
20. Id. at 13. ↑
21. Id. at 14. ↑
22. See Saint Patrick’s Home for the Aged & Infirm v. Laticrete Intl., 267 AD2d 166, 166 [1^st Dept 1999] ↑
23. The Mayor Gallery Ltd. v. The Agnes Martin Catalogue Raisonné LLC et al., No. 655489, at 22 (N.Y. Sup. Ct. 2018). ↑
24. See The Mayor Gallery Ltd. v. The Agnes Martin Catalogue Raisonné LLC et al., No. 655489, at 5 (N.Y. Sup. Ct. 2019). ↑
25. Id. at 8 ↑
26. Lawsuit Against Agnes Martin Authentication Committee Dismissed, Art Forum (2019), https://www.artforum.com/news/lawsuit-against-agnes-martin-authentication-committee-dismissed-80299 ↑

Suggested Readings:

• Justine Mitsuko Bonner, Let Them Authenticate: Deterring Art Fraud, UCLA Entertainment Law Review, 24(1), 2017
• Savannah Holzwarth, Express Yoursef: Providing Greater Protection for Independent Art Authenticators Who Offer Good Faith Opinions, Hofstra Law Review, Vol. 46: Iss.4 (2018)
• Sam Miller, The End of Fine Art Experts? A Few Lessens Learned From The Recent Agnes Martin Litigation, Medium (July 17, 2019)
• Report on Legislation by the Art Law Committee, New York City Bar (2016)

The author would like to thank Dean Nicyper, partner at Withers Bergman LLP, for providing his valuable opinions on the case and clarifying some procedural aspects.

About the author: Yuchen Xie is a Fall 2019 Intern at the Center for Art Law and is pursuing her M.A. in Arts Administration at Columbia University. She holds her B.A. in Studio Art and French from the University of Virginia (2018).