Conceptual sculptor and artist Cady Noland’s works have garnered international acclaim and set records at auction.  She has also, however, received attention for her complex and sometimes-fraught relationship with her past works.  Last fall, she pointedly refused to endorse a show containing some of her work, and she has in the past expressed her concerns with how her creations are installed, maintained, exhibited, and sold on the secondary market.  Her vigorous oversight of works has even resulted in litigation.  Last week, her purported disavowal of one of her works that had been restored without her permission sparked a new lawsuit, and raised more questions about the scope of an artist’s right to disclaim authorship of her own works.

The “Cowboys Milking” Lawsuit

Noland made headlines in 2012 in connection with a lawsuit that arose out of her decision to disclaim authorship of one of her works, Cowboys Milking.  Our earlier blog post on this suit contains more detail, but in short, Sotheby’s had planned in the fall of 2011 to auction a Noland work on behalf of the work’s owner, dealer Marc Jancou, but before the auction could proceed, Noland asserted that the work had been damaged, and demanded that Sotheby’s withdraw it from the sale.  In doing so, she invoked her rights under the federal Visual Artists Rights Act of 1990 (17 U.S.C. § 106A) (“VARA”), governing artists’ “moral rights,” including their right to receive attribution for and preserve the integrity of their work.  Among other things, VARA permits an artist to “disclaim” authorship of a work by preventing the use of his or her name as its author in the event that the work is mutilated or otherwise modified in a way that would be prejudicial to the artist’s “honor or reputation.”  17 U.S.C. § 106A(a)(2).  Faced with Noland’s disclaimer, Sotheby’s withdrew the work from auction, whereupon Jancou sued both Sotheby’s and Noland, asserting that Sotheby’s had breached its consignment contract and its fiduciary duty to Jancou, and arguing that Noland had tortiously interfered with the consignment by persuading Sotheby’s to breach the agreement.

A New York state court ultimately granted summary judgment for Sotheby’s, holding that there had been no breach because the consignment agreement permitted Sotheby’s to withdraw the work at any time before sale if, “in its sole judgment,” “there is doubt as to [the work’s] authenticity or attribution.”  Marc Jancou Fine Art Ltd. v. Sotheby’s, Inc., 2012 WL 7964120 (N.Y.Sup., Nov. 13, 2012).  The trial court held that there was a “substantial, objective basis for Sotheby’s judgment that there was such doubt as to attribution.”  An appellate court affirmed the ruling.  Marc Jancou Fine Art Ltd. v. Sotheby’s, Inc., No. 650316/2012, 107 A.D.3d 637, 638, 967 N.Y.S.2d 649 (1st Dep’t 2013).  Neither court, however, addressed the issue of whether Noland’s disclaimer of authorship was valid under VARA, instead holding only that the contract gave Sotheby’s broad discretion to withdraw the work in the event of a question of attribution, and that Sotheby’s withdrawal was permissible given Noland’s invocation of her VARA rights combined with evidence that the work had been damaged and restored.

The “Log Cabin” Lawsuit

Because the Jancou case was resolved on contractual grounds, it did not fully explore whether, and under what circumstances, Noland could disclaim her work, nor did it examine any of the statutory exceptions to VARA (such as the provision explaining that modification of a work as “a result of the passage of time or the inherent nature of the materials” does not constitute “a distortion, mutilation, or other modification” that would give rise to a disclaimer).  17 U.S.C. § 106(A)(c).  Nor did the case shed light on what level of damage “would be prejudicial to [Noland’s] honor or reputation,” and whether that question is to be viewed through an objective lens or in the subjective view of the artist.

Now, a new case involving Noland may provide an opportunity for deeper exploration of some of the contours of artists’ disclaimer rights under VARA.  In a complaint filed on June 22, art collector Scott Mueller alleges that, during the summer of 2014, he agreed to buy Noland’s sculpture, “Log Cabin Blank with Screw Eyes and Cafe Door” from the Germany-based Janssen Gallery.  The work consists of a large wooden front façade of a log cabin with an American flag affixed over the entrance.  According to one report, “Log Cabin” is unique in Noland’s oeuvre in that the artist intended for it to be displayed outdoors.  Prior to Mueller’s purchase of the work, it had apparently been on loan to a German museum, where it was exhibited outdoors for about ten years.  During that time, the work suffered deterioration and damage; as a result, the owner obtained a condition report and, following the report’s recommendation, “the original logs were replaced and a new log cabin façade was constructed” by the “original fabricator” using the artist’s “original and exact specifications” and the same type of wood.

When Mueller and the Gallery agreed to Mueller’s purchase of “Log Cabin,” they entered a written contract that fully disclosed and acknowledged the work’s restoration.  In fact, the parties apparently contemplated that the artist might object to that restoration in a way that could cause problems; the complaint states that, “given the history of the artist,” the sale contract expressly provided that the Janssen Gallery would buy the work back from Mueller in the event that the artist “refuses to acknowledge or approve the legitimacy of the work; seeks to disassociate her name from the work; or claims that her moral rights . . . have been violated.”

Those fears indeed came to pass.  According to the complaint, after Mueller paid the purchase price of $1.4 million to the Gallery, his agent wrote to Noland “to inform her of the sale and the replacement of the logs that had rotted in the ten years it sat outside at a museum in Germany.”  Noland, according to the complaint, “angrily denounced the restoration of the artwork without her knowledge and approval” and told Mueller’s agent that any future display or sale of the work “must include notice that the piece was remade without the artist’s consent, that it now consists of unoriginal materials, and that she does not approve of the work.”  She also wrote to Mueller, stating, “This is not an artwork” and objecting to the fact that the work had been repaired without consulting her.  At this point, Mueller’s agent contacted the Gallery and told them that the buy-back provision had been triggered.  The Gallery tried to persuade Mueller to instead apply the purchase price to a different Cady Noland work, but Mueller insisted on exercising his buy-back right.  However, the Gallery ultimately refunded only $600,000 of the purchase price.  Mueller has now sued in the Southern District of New York (Docket No. 15-CV-04827), seeking the refund of the remaining $800,000 he asserts is due.

Unlike the Jancou case, which named Noland herself as a defendant, the artist is not a party to Mueller’s suit.  Nevertheless, the outcome of this case may involve close analysis of Noland’s words and actions in connection with “Log Cabin.”  A threshold question might be whether Noland did in fact disclaim “Log Cabin.”  Do her statements, including her angry note to Mueller stating that “This is not an artwork,” invoke her rights under VARA?  Beyond that, did Noland’s words and actions trigger the buy-back clause of the sale contract between Mueller and the Gallery?  And if Noland has purported to disclaim authorship of “Log Cabin” under VARA, is that disclaimer valid?  Or might the work’s modifications in this case be simply “a result of the passage of time or the inherent nature of the materials” (17 U.S.C. § 106(A)(c)) and not proper grounds for a disclaimer?  Is the replacement of the logs in keeping with the artist’s original specifications really “prejudicial to [Noland’s] honor or reputation”?  Does it change the analysis at all to consider that the logs were apparently originally constructed (and later reconstructed) by a fabricator? These and other questions may become relevant to Mueller’s claims and the Gallery’s defenses as the litigation proceeds.

In the meantime, the story acts as an important reminder to parties who collect, store, restore, buy, or sell the works of living artists.  Here, the parties apparently foresaw the possibility that the artist might object to the work’s restoration, thereby potentially affecting the work’s value and saleability as a Cady Noland work.  Indeed, the buy-back provision represents the parties’ attempt to agree to a clear mechanism for what should happen in that event.  Unfortunately, a dispute arose anyway, and the work’s marketability and attribution now hang in limbo.  Experienced art-law professionals can advise artists on ways to protect their moral rights in their works; advise collectors and dealers on how an artist’s rights under VARA might impact a contemplated restoration or transaction; and help draft contracts that may help to mitigate and allocate the risk that an artist may disclaim works under VARA.