Keith Haring Foundation v. Colored Thumb Corp.

Groupon offering a discount on the Miami Show.

Just last year, Keith Haring Foundation (the “Foundation”) announced its plans to disband its authentication committee either as a cost cutting or a self-preservation measure. Apparently they deemed one too many works as not by Keith Haring and drew ire from collectors. Now in a more lucrative move, the Foundation is making headlines alleging willful trademark infringement, copyright infringement and other dubious behavior by Florida residents, Michael Rosen and Colored Thumb Corporation because they organized an art fair Haring Miami (www.haringmiami.com).

From the Complaint filed in the Federal Court of the Southern District of Florida on March 8, 2013:

“2. The Haring Foundation is the successor-in-interest to and owner of the intellectual property of Keith Haring, the world famous artist.  The Haring Foundation’s mission is to sustain, expand, and protect the legacy of Keith Haring, his art, and his ideals. The Haring Foundation supports not-for-profit organizations that assist children, as well as organizations involved in education, research, and care related to AIDS. Despite his death in 1990, artwork by Keith Haring continues to be in high demand, and The Haring Foundation has an active licensing program. There is also a strong market for Keith Haring’s original works, which sell for very significant sums (depending on the size of the work, the medium, and other factors).

3.    Defendants are currently promoting and conducting an art show that purports to feature original works by Keith Haring and his “friends.” In fact, the overwhelming majority of the works are not by Keith Haring; they are counterfeits and/or infringements. Defendants are also offering these counterfeit and/or infringing works for sale, and may have already made sales of such works.”

Indeed, the Foundation owns copyright registration to Haring’s works as well as trademark registrations in his signature, name and some iconic images to be used in such goods as T-shirts, magnets, books, postcards and much more. (see Complaint, at 4 -7). It accused Defendants of featuring not genuine Haring’s artworks at a fair they organized in Miami from March 7 to Mrch 13, 2013 under the title of “Haring Miami: A Celebration of the Life & Art of Keith Haring.” Defendant’s expected that some works exhibited would not be authentic and notified attendees of the show in a disclaimer that

“The art in this catalog may be by the artist Keith Haring or from his circle of friends. In that this is an expansive Exhibit, some of the artwork has not been submitted or examined by the Keith Haring Foundation for authenticity. Although every effort has been made to research the authenticity of the artwork, the promoter of this show, the owners and publisher of this catalog and curator cannot and does not guarantee the authenticity of the works. The works in this show are all from creditable private collections for your viewing pleasure and charitable educational experience. Some of the artwork in this catalog may be controversial. The show is meant to be an exploration of the work of Keith Haring and his friends and their influence on art. The pieces here may have been created by Keith Haring or his inner circle of collaborators. The promoters of Haring Miami, and the art owners, the curator and their agents are not affiliated with the Keith Haring Foundation or any entity related to their organization. Some of the works have been submitted and approved by the Foundation; some have been submitted and not authenticated by them with a caveat that they reserve their right to possibly authenticate the pieces upon further examination. Others have not been submitted.“

The Foundation sent a representative to the show who allegedly examined the works closely and identified only 8 works are genuine Harings.  Many works on display were allegedly submitted to the Foundation for authentication in the past and were deemed inauthentic. For example, of the 80 some large acrylic paintings on canvas all but one were designated as fake by the Foundation in their Complaint. Paragraph 24 explains why the Foundation is taking its concerns to court:

“Putting such works of art into the market will cause enormous and irreparable damage to The Haring Foundation. Sales of poor quality works purporting to be authentic Keith Haring work depress the value of the work because it discredits the genius and innovative nature of the authentic artwork, people can buy the fake artwork cheaply and people also come to regard Haring’s work as amateurish because of poor quality fakes, such as are being shown at Haring Miami. Further, if not stopped, the market could be flooded with these fakes. And, once they hit the market, they will be extremely difficult if not impossible to track down and control. They will defraud investors and collectors who, among other things, purchase authentic artworks from the Foundation’s representatives. It would destabilize the market for authentic Keith Haring artwork. For example, if the approximately 80 acrylic works on canvas in the show were real Harings, their collective value would be more than $40 million. In fact, they are poor quality fake Harings and infringements of copyrighted and trademarked Haring artworks. Since there are so many, their entry into the market would certainly have an effect on the sale and the price of real Haring artwork.”

To protect collectors and its own interests, the Foundation is seeking punitive damages, profits from all wrongful acts, attorney fees, transfer of the http://www.haringmiami.com domain name to the Foundation as well as injunctions galore against using, advertising, selling, displaying, reproducing, transmitting and much more any works not created but labeled as by Keith Haring.

Attorneys representing the Foundation are with Proskauer Rose LLP.

Sources: Complaint in Keith Haring Foundation v. Colored Thumb Corp., 1:13-cv-20830-xxxx; Justia.com.