A New York state appeals court heard arguments yesterday in a multimillion-dollar clash between Sotheby's and Marc Jancou Contemporary Gallery involving Cady Noland's Cowboys Milking (1990). Jancou consigned the work to Sotheby's in 2011, but the auction house abruptly yanked the piece, at Noland's request, on the eve of its scheduled sale. Jancou filed suit in February 2012 seeking $26 million in damages from Sotheby's.
Last August a trial court ruled in favor of Sotheby's, but if that decision is reversed on appeal the case could have broad implications for the art world, defining the circumstances under which living artists can disclaim authorship of works that have been damaged or modified.
Noland invoked the Visual Artists Rights Act of 1990 (VARA)—part of the Copyright Act that protects artists' integrity and reputation, sometimes called their "moral rights"—in a Nov. 9, 2011 e-mail her lawyer sent to Sotheby's the evening before the scheduled Nov. 10 contemporary art afternoon auction. Noland insisted that Cowboys Milking, a silkscreen print on a 1/16th-inch-thick aluminum sheet, was damaged and demanded that Sotheby's not sell it because "her honor and reputation [would] be prejudiced as a result of offering [it] for sale with her name associated with it," in light of the artwork's condition. The work had already been sold or transferred five times, including the sale to Jancou just months earlier.
Jancou says any damage was "accidental and slight" and he employed renowned conservator Christian Scheidemann, who specializes in contemporary art, to restore the work. Scheidemann's own June 30, 2011, report says that "compared to many other aluminum sheets [by Noland] this particular work is in very good condition. There are no scratches or major indentations in the surface. However, all four corners are bent and slightly deformed." Scheidemann cleaned the piece and attempted to straighten its edges, concluding: "The work appears now better maintained than before. Some deformations, however, will always be noticeable."
Jancou's Sept. 9, 2011, consignment agreement allowed Sotheby's to withdraw Cowboys Milking "at any time before sale" if in Sotheby's sole, good faith judgment "there is doubt as to its authenticity or attribution." Sotheby's lawyer, Charles G. Moerdler, told the justices of the appellate division yesterday that his client initially "tried to settle this with [Noland]" and persuade her to reconsider her objection. When these attempts failed, Moerdler said "we had reasonable doubt" about the attribution of the work, triggering Sotheby's contractual right to pull it. "If Cady Noland did something improper," Moerdler said in court, Jancou "has a remedy [against Noland]," but not against Sotheby's.
Jancou's lawyer, Thomas Sheridan, argued that Sotheby's did not make a good faith judgment about the work's proper attribution to Noland, but rather, "completely abdicated their responsibility to use discretion," and capitulated to the artist's unreasonable demand based on "bogus claims." Complicating matters further, Jancou has suggested that Sotheby's and Noland struck a deal to allow the sale of a more valuable Noland work, Oozewald (1989), in exchange for the withdrawal of Cowboys Milking. The work was estimated to sell for $250,000-$350,000, whereas Oozewald, another silkscreen on aluminum, sold only the night before the auction at issue for $6.6 million, $4 million over the low estimate and a new record price for a living woman artist. In his brief, Jancou says Noland acceded to the Oozewald sale "even though an integral part of the complete work was entirely missing."
Moerdler told A.i.A. after yesterday's oral argument that he expects a ruling by the end of the summer at the latest, and that a decision could be handed down within a few weeks.
Although the appeal will likely be decided on the basis of contract law, NYU art law professor Amy Adler toldA.i.A. by phone yesterday that there is an "open question" as to whether the protections afforded by VARA apply in Noland's case. "If I paint a painting and somebody cuts it in half, they can't use my name when they sell the top half," Adler said of the law. But "we don't know whether the damage to this work" rises to that level, Adler continued, "and whether this artwork is no longer a Cady Noland" or if it is "merely a Cady Noland that was diminished in value."
New York attorney and art law specialist John Cahill told A.i.A. earlier today that VARA "refers to intentional distortion" and that ordinary wear and tear is not covered by the law. Cahill also suggested that statutory ambiguities are a reason that "all well-advised auction houses" use contracts with protective language similar to that in Sotheby's contract with Jancou, giving them the right to pull items when controversy sparks. "When there is some colorable claim," Cahill said, "it's not unusual for an auction house to withdraw work and evaluate the claim."
PHOTO: Cady Noland, Cowboys Milking, 1990.