Wednesday, November 14, 2012

A Court Victory for Sotheby's and Artist Cady Noland

"Cowboys Milking," formerly by Cady Noland
A major victory for Sotheby's and artist Cady Noland today -- the New York State Supreme Court ruled that when an artist objects to the sale of her work because that work has been damaged, the auction house can withdraw the work from auction without being liable to the would-be seller.

In September 2011, Sotheby's and dealer Marc Jancou entered into a consignment agreement to auction Noland's "Cowboys Milking," a fragile print on aluminum -- materials that don't mesh well -- that Noland had made some 20 years before.  The description of the property in the contract read "Cady Noland, Cowboys Milking," a description that was important to the court's decision.

Sotheby's estimated it would bring $250,000 to $350,000, but as the auction date approached Jancou may have looked forward to much more, since a Noland had sold at auction for about $6 million in early November.

On November 7, 2011 Noland viewed her work at the Sotheby's exhibition that immediately preceded the auction, and invoked her rights under the federal Visual Artists Rights Act -- that is, because the corners were bent and had been repaired but not restored to their original condition, she claimed the print was materially damaged and therfore under VARA she no longer wanted it attributed to her.

She requested that Sotheby's withdraw the work from auction, which Sotheby's did.

Jancou sued Sotheby's for breach of the consignment contract and sued Noland for interfering with the contract.  Sotheby's moved for summary judgment, and the court granted that motion, ruling that since Noland had objected, Sotheby's rightfully doubted that "Cowboys Milking" could be attributed to her.

And the court went farther:  "Absent the author's name, the print was not the 'Property' listed on the . . . consignment agreement and there was more than doubt as to attribution:  there was no attribution."

Although technically Jancou's claim against Noland is still alive, "she should win," said her lawyer, Dan Brooks.  "There can't be tortious interference with a contract when there hasn't been a breach."

Image from the internet.  Text (c) Copyright 2012 Laura Gilbert