Franz Erhard Walther Sues for Ownership, Sued for Defamation
A legal battle is under way in New York between German artist Franz Erhard Walther, who currently has a show at Dia:Beacon, and Urban Architecture gallery. The two parties are at odds over who rightfully owns the artist's installation 1. Werksatz (1963–69), a participatory work comprising 58 white canvas assemblages, as well as a selection of framed drawings and photographs.
The tangled web of conflicting stories dates back to 2001 and the demise of John Weber Gallery, where the work was consigned. The current string of legal complaints began in March, when Urban Architecture received a letter from Walther's attorney, John R. Sachs, Jr., demanding the return of the entire installation. That led to Urban Architecture filing a complaint in New York Supreme Court on May 24 seeking a declarative judgment action, or court ruling, as to the ownership of the work. Walther then filed a suit against the gallery; the gallery is countersuing.
In court documents, Urban Architecture owner Keith Johnson says he purchased the drawings and photographs from John Weber Gallery, for $28,000, on Feb. 12, 2001. Weber declared bankruptcy in August 2001. (He died in 2008.) Unwilling to pay storage bills, the court-appointed trustee overseeing the bankruptcy proceedings requested and received court permission to dispose of any works not picked up by Aug. 14, 2001. Johnson says he was at the warehouse to collect works by an artist he represented—a former Weber artist—when he noticed Walther's canvas assemblages in the garbage and rescued them.
Johnson asserts that he tried to reach Walther in 2001, which Walther denies, and again in 2008, successfully. Johnson traveled to Fulda, Germany, to meet with the artist. According to the May 24 complaint, Johnson says he was prepared to recognize Walther's ownership of the work but that the former wanted the right to sell it. Johnson maintains that a verbal agreement was reached, a claim that Walther refutes. Walther says that when Weber declared bankruptcy in 2001, he was unable to recover the work despite having hired lawyers in Germany and the U.S. He also notes that he has been at the same address for 35 years, so why he was difficult to locate is unclear, considering that he is a living, exhibiting artist.
Attorney Peter B. Stern, who is representing Urban Architecture, told A.i.A. that he had attempted to contact Sachs, to no avail. Seeking to resolve the matter, Stern filed the complaint requesting a declaratory judgment action. The complaint was sent to Sachs, who, according to Stern, "prevaricated, stonewalled" and refused to accept service of the complaint. (While the party being sued is usually served, it is common practice for their attorney to accept on their behalf. Walther's residence in Germany made serving him there extremely complicated and expensive, says Stern.)
In response, on June 29, Walther filed a suit alleging that Johnson wrongfully acquired the work and holds it unlawfully. He is seeking $7 million in punitive and compensatory damages. Part of the claim arises from Walther's assertion that the work's value is in excess of $2 million, which Urban Architecture denies. Stern told A.i.A., "Their request for punitive damages is absurd given that Urban Architecture rescued the work from the garbage and attempted to contact the artist." Further, "If it's such an important work, why did he let it sit for 20 years?"
In Walther's cross-complaint, he acknowledges that he had consigned the work to John Weber Gallery in or around 1988, and "agreed to share with the John Weber Gallery the proceeds of the sale of any of the consigned works." However, he also asserts that "at no time did [he] authorize a sale of the work by John Weber Gallery." Most gallery consignments, however, are made with the purpose of selling a work. Walther says he never received any proceeds from the sale of the photographs and drawings to Johnson. (Given Weber's reputation for not paying artists, it is a plausible claim.)
In his account, Walther says Johnson contacted him in July 2008 and that at their meeting Johnson produced a letter that he had supposedly faxed to Walther in 2001 but which he never received. Walther says that Johnson then tried to persuade him to sign a new consignment agreement, but he refused and demanded the return of his work, contradicting Johnson's assertion that a verbal agreement was reached.
Stern argues, "John Weber Gallery's failure to account for the works and failure to return them constituted a breach of contract." Because Walther failed to pursue Weber on those charges and the statue of limitations has passed, Stern says that such claims against Urban Architecture are also barred. Stern notes that in the June 30 complaint, Sachs "failed to disclose the fact that Urban Architecture had filed a declaratory judgment action over one month prior" to Walther's filing.
With regard to the verbal agreement, which can be enforceable in court, Urban Architecture alleges that Walther's change of mind was caused in part by his wife, Susanne Walther, and Peter Freeman gallery. Johnson also claims that the events thwarted a pending sale of the works for $750,000–$675,000 for the assemblages and $75,000 for the drawings and photographs. As a result, Urban Architecture is seeking damages in the amount of $375,000 for its share of the lost sale and $100,000 for storage costs since 2001.
In addition, they are seeking $1 million for defamation due to Walther's allegedly filing a report with the Art Loss Register naming Johnson as the thief; proof of the filing has not been provided to Stern or Urban Architecture. A call to the Art Loss Register could not immediately confirm this particular filing but revealed over 100 reports of Walther works that have been lost or stolen.
Also at issue is whether 1. Werksatz is an original work of art, as the artist maintains. Urban Architecture disputes that distinction, noting that there are multiple versions (versions are in the collections of MoMA and the Dia Art Foundation in New York) and thousands of photographs.
Walther is expected to travel to New York in September for a day-long colloquium on Sept. 17 at Dia:Beacon, where 1. Werksatz (First Work Set) is included in "Work as Action," a survey of his action-related pieces on view through Feb. 13, and to participate in a conversation with independent curator Jennifer Winkworth on Sept. 19 at Dia:Chelsea.
An early version of this article incorrectly stated that A.i.A.'s call to Sachs's office was not returned. In fact, a response was not available by press time.
Photo by Timm Rautert. Courtesy Peter Freeman, Inc.