Caveat artifex: The case of one Immendorff Ready-Made

October 8, 2014

By Steffanie E. Keim, Esq. 

The German artist Jörg Immendorff (June 14, 1945 – May 28, 2007) was controversial during his lifetime and the controversies surrounding his art have not ended with his death.

Following Immendorff’s death, his estate became embroiled in numerous high-profile lawsuits, including a suit by his illegitimate son, Jean-Louis, from a relationship with Marie-Josephine Lynen, and several suits launched by his widow, Oda Jaune, against various gallery owners and art dealers he had dealt with.

One of Jaune’s suits dealt with a version of the painting, Ready-Made de l´Histoire dans Café de Flore, offered for sale in Düsseldorf with the Viennese auction house Dorotheum auction house in 2007 (the painting was withdrawn from the auction following the criminal complaint by Jaune as discussed below). In 2008, Michael Werner, Immendorff’s long-term art dealer, issued a warning that some works regarded as Immendorff’s may be forgeries. Critics claim that the forgery controversy is merely a public relations stunt and a market dispute between gallery owners and art dealers with financial interests.

To fully understand the particular controversy surrounding what may be the final ruling in the matter concerning one of Immendorff’s paintings, Ready-Made de l´Histoire dans Café de Flore, which was originally purchased at the artist’s studio in 1999, one has to take into consideration the life and work of the artist. Born in 1945, Immendorff was an artist and a political activists from an early age. Immendorff initially became famous with his series, first Café Deutschland (1977 to 1982), and later Café de Flore where he depicted himself in a number of roles surrounded by a community of intellectuals and artists. A student of Joseph Beuys (a well known artist in his own right), one of Immendorff’s  most famous works, Affenplastik, depicts Immendorff as a monkey child  being lead by Beuys. Affenplastik, also known as Malerstamm, is part of a 17-piece series of bronze sculptures and shows Beuys explaining the world with a grand gesture of his raised left arm while leading a monkey child. Explaining and understanding the world was an important mission of Beuys’; Affenplastik casts Immendorff as a willing pupil.

Immendorff was famous not only for his artworks but also for a lavish and controversial life style. In fact, according to his art dealer Michael Werner, “Joerg could not paint as fast as he wanted to spend money,” thus frequently owing money to Werner. Immendorff was known for producing copies of his own work and for selling signed copies from his workshop. He created further legal confusion by signing contradictory agreements with different galleries in addition to selling works directly from his studio during his lifetime. In 1997, Immendorff was diagnosed with amyotrophic lateral sclerosis (ALS) (also known as Lou Gehrig’s Disease), a progressive neurodegenerative disease that eventually fully paralyzed him and led to his death in 2007. As a result of his debilitating condition, during his last decade, his assistants were producing Immendorff works under the artist’s close instruction and direction. Immendorff reportedly had a reputation for strict quality control which often required numerous corrections of a single brush stroke by his assistants before Immendorff would approve a work as finished.

Following the artist’s death, his widow Oda Jaune filed criminal charges claiming that the painting Ready-Made de l´Histoire dans Café de Flore (120 x 100 cm) [Ready-Made B] which was consigned for auction in 2007 by the Defendant, was a forgery based on a painting created in 1987 Ready-Made de l´Histoire dans Café de Flore with the dimensions 150 x 175 cm [Ready-Made A]. The prosecutor’s office did not find enough evidence during its criminal investigation to lay charges and Jaune decided to pursue her claim in a private action in one of the most publicized and closely followed law suits discussed here concerning Immendorff’s painting, Ready-Made de l´Histoire dans Café de Flore [Ready-Made B] which first began in 2008 and seems to have finally been settled in court.

In its decision on August 5, 2014, the Court of Appeals (Oberlandesgericht) Düsseldorf, reversed the lower court (Landgericht) decision which had ordered the destruction of the painting.

The uncontested underlying facts were that Ready-Made B was originally purchased – accompanied by a certificate of authenticity – at Immendorff’s studio in 1999 for the price of 30,000 DM. The original purchaser received Ready-Made B from and paid the purchase price to one of Immendorff’s assistants. The original purchaser then sold the painting to the Defendant, his brother, in 2001. In 2007 the Defendant put it up for auction in Düsseldorf with the Viennese auction house Dorotheum. Once the painting had been listed in the catalogue, several discoveries were made:  i) there was a duplicate original created in 1987 owned by a collector in New Zealand [Ready-Made A], and ii) Ready-Made B had different dimensions than the 1987 version.

The Plaintiff, Oda Jaune claimed that the painting owned by the Defendant and listed in the auction catalogue – Ready-Made B- either was a forgery or was sold without Immendorff’s authorization respectively. According to the Plaintiff, in either case Ready-Made B was an unlawful propagation of Immendorff’s work and she as his heir was entitled to injunctive relief in the form of the destruction of Ready-Made B.

On October 17, 2012 the lower court (Landgericht Düsseldorf, 12 O 473/08), ruled in favor of the Plaintiff and granted the injunctive relief as requested, ordering the destruction of the painting.

The order was based on Articles 97 Abs. 1 a.F., 98 Abs. 1 a.F., 16 Abs. 1 of the German Copyright Act (UrhG). Under Article 97 UrhG, an injured copyright owner can bring an action for injunctive relief requiring the infringer to cease and desist if there is a danger of recurring acts of infringement, as well as an action for damages for intentional or negligent  infringement.  Article 98 UrhG gives the injured copyright owner the right to require destruction of all copies unlawfully manufactured, unlawfully distributed or intended for unlawful distribution in the possession of or owned by the infringer, unless such destruction is disproportionate or unreasonable.

The lower court’s opinion relies heavily on the expert opinion of art historian and Immendorff expert Siegfried Gohr who discusses the differences between Ready-Made A and Ready-Made B in great detail and determines that Ready-Made B was copied using a projector and in his opinion could have not been authorized by Immendorff, since Immendorff was not known to create a “2^nd edition” of his works. Based on these factors and his personal knowledge of the artist and his work process, Gohr deemed it unlikely that Immendorff authorized Ready-Made B and stated that if Ready-Made A and Ready-Made B had been painted by the same artist he would need to resign as an art historian.

Based on Gohr’s testimony, the lower court concluded that Ready-Made B was an unlawful copy of Ready-Made A, and further held that the Defendant distributed the copy by putting it up for auction. Pursuant to Article 15 and 16 UrhG, all exploitation rights, including reproduction and distribution, lay exclusively with the author and any reproduction is generally unlawful unless there is consent or legal justification.

In the eyes of the lower court, the Defendant failed to meet his burden of proof, citing a failure to substantiate claims that he reproduced and sold Ready-Made B with Immendorff’s consent. The court also found that the destruction of Ready-Made B was proportional and not unreasonable since the infringement of the author’s rights could not be eliminated in a less drastic but similarly efficient way. The Plaintiff’s predominant interest in avoiding forgeries circulating next to the original without an obvious and easy way of distinguishing one from the other outweighs any rights or interest of the Defendant as the owner according to the lower court.

On August 5, 2014, the Court of Appeals reversed the lower court’s decision and held that Ready-Made B will not be destroyed since its distribution is lawful. The Court of Appeals found it unnecessary to decide whether Ready-Made B is a forgery since the circumstances surrounding the sale of Ready-Made B at Immendorff’s studio are to be construed as apparent consent by Immendorff as the undisputed author of Ready-Made A, to the publication and exploitation of Ready-Made B according to Article 23 UrhG. Pursuant to Article 23 UrhG adaptations or other transformations of a work may be published or exploited only with the consent of the author of the adapted or transformed work.

The Court of Appeals found that the evidence established that Immendorff knew of and had at least tolerated direct sales in his studio by his assistants. He thereby made it look like he consented to the sale and thereby the publication and distribution of works of art sold in his studio as “his“ artworks.

Since the original purchaser was protected in his trust in the apparent consent, the Plaintiff, as the artist’s heir is bound by it and is barred by estoppel, even if the assistant selling Ready-Made B may have sold a painting not authorized by Immendorff. The Court of Appeals refused to determine if Ready-Made B is a forgery or not – even though the assistant selling Ready-Made B was a witness and could have probably answered the questions by whom, when and how exactly the copy was made once and for all. The Court of Appeals even goes as far as admitting that it has doubts regarding the authenticity of Ready-Made B and the accompanying certificate of authenticity, however the appearance of consent based on the totality of the circumstances is sufficient to prevent Jaune from succeeding in her claims.

Courts are historically uneasy when it comes to answering art related questions since they have to rely on expert testimony and the conflicting parties usually find experts with conflicting testimonies, whereby a battle of the experts ensues.

In this case, however, the Court of Appeals decided to allocate the risk with the seller. While the art market and its participants are often blamed for not following basic legal standards or neglecting to perform due diligence, a purchaser may feel rightfully justified in her reliance in the authenticity of a work of art when the purchase is made directly from the artist’s studio and is accompanied by a certificate of authenticity. According to the Court, it is just to allocate risk of selling a fake with the artist in the instances where there are no aggravating circumstances, which would raise concerns in a well-informed objective purchaser. A possible aggravating circumstance would be, for example, a widely reported fact that the artist does not engage in direct studio sales.

The uncertainty whether the question regarding the authenticity of this and other works by Immendorff will affect the market value of his entire oeuvre remains. The current risk allocation seems to invite a decline in market value across the board due to the fact that the court may have “created” new Immendorff works by labeling every artwork an “Immendorff” that was sold directly from the artist’s studio.

Given that the art market is unpredictable and is subject to many influences, not the least of them aesthetic taste and fashion, legal decisions with a potentially large impact on the art market end up having little or none of the expected effect. It remains to be seen how Ready-Made B does compared to other Immendorff works if and when it is offered for sale again.

In conclusion the old age “caveat emptor” is not the only lesson for the art world. In this case the Court of Appeals sided with the purchaser specifically because the seller, in this case artist, did not do enough to protect his legacy but instead potentially endangered it by his own actions.

Sources:

• Henri Neuendorf, “Lawsuit Erupts Over 400 Jörg Immendorff Works” Artnet
• Benebelte Affen, http://index-magazin.com/online/benebelte-affen/
• Article 17 Section 2 UrhG
• Article 23 Urhg

About the Author: Steffanie E. Keim is admitted to the bar in New York and Germany and is practicing law and pursuing her interest in art law in New York. She may be reached at 917-669-2514 or steffanie.e.keim@hotmail.com