Case Review: Bilinski v. the Keith Haring Foundation

March 17, 2014

By Chris Michaels, Esq.

Filed in the Southern District of New York on 21 February 2014, the case of Bilinski v. The Keith Haring Foundation, Inc. finds its origins, in large part, from the decision of the Haring Foundation to dissolve its Authentication Committee in September 2012. (See our article:  The Keith Haring Foundation Announces Its Decision To Disband Authentication Committee). In order to properly understand the implications of the dissolution and the lawsuit, which was brought by owners of works allegedly created by Haring against The Haring Foundation, Keith Haring’s Estate, and the Foundation’s directors, a brief background of the artist, as well as the Foundation he established, is helpful.

Keith Haring, an influential New York-based artist and social activist, gained renown in the 1980s for visual artwork that explored controversial and enduring subjects including AIDS, sexuality, birth, death, and war. His work in the New York City subways (left), captured by photographer Tsing Kwong Chi, catapulted Haring into the pop art stratosphere with the likes of Jean Michel-Basquiat and Andy Warhol. Haring went on to produce more than fifty public artworks around the world and hundreds of smaller scale works.  Some of Haring’s works were discovered as recently as 2007.

In 1989, before his AIDS-precipitated death on 16 February 1990, Haring established The Haring Foundation.  Goals of the Foundation include, but are not limited to, distributing funds to AIDS organizations, distributing property and grants to museums and institutions, and perpetuating the understanding of Haring’s artwork. Notably, pursuant to the Bilinski Complaint, the Foundation never took upon itself to compile and publish a catalogue raisonné of Haring’s artwork. Authentication of the artist’s works was left to an Authentication Committee within the Foundation.

According to the Complaint, before its dissolution, the Authentication Committee accepted applications for review of works thought-to-be-by Haring and decided, often without explanation, whether the submitted work was indeed an authentic Haring. The Plaintiff’s in Bilinski are owners of artwork allegedly purchased from friends of Haring and potentially worth over $40,000,000 if authentic. They are pursuing various causes of action related to the alleged improper denial of the Authentication Committee from declaring the works at issue authentic Haring pieces. Part of the lawsuit also relates to a Press Release authored by the Foundation publicly declaring the pieces as fakes. Interestingly, a few of the causes of action arise under the Lanham Act, which allows for damages to be trebled. As the Plaintiffs’ are claiming damages of not less than $40,000,000, a ruling for the Plaintiffs under the Lanham Act causes of action could prove costly for the Defendants.

The crux of Plaintiffs’ argument in the case is that the decision to dissolve the Authentication Committee allegedly “makes it easier for Defendants to evade liability for the committee’s improper denials of authentic Haring artworks” and improperly inflates the market value of Haring works that have already been authenticated by the committee. According to the Complaint, “[b]y refusing to authenticate the works [at issue] and publicly branding them as fakes, the Defendants have limited the number of Haring works in the public domain, thereby increasing the value of the Haring works that the Foundation and its members own or sell.”

Plaintiffs are represented by David A. P. Brower and Brian C. Kerr of the Brower Piven firm.

Source: Complaint – Bilinski v. The Keith Haring Found., Inc., 14-CV-1085 (S.D.N.Y. filed Feb. 21, 2014).

About the Author: Chris Michaels is a litigation attorney in the Philadelphia office of the Atlanta, GA-based law firm, Cruser & Mitchell, LLP, where he actively pursues his interest in the field of art law.  He may be reached at 518-421-7238, chriswmichaels@gmail.com, or on Twitter @CMichaels88.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.