After artist Cady Noland disclaimed authorship of one of her works (the “Work”) under the Visual Artists Rights Act (“VARA”) based on her assertion that the Work had been damaged subsequent to its creation, she demanded that Sotheby’s withdraw it from an upcoming auction. Sotheby’s obliged, citing to the section in its standard consignment agreement with the Work’s owner, Marc Jancou Fine Art Ltd. (“Jancou”), providing, among other things, that Sotheby’s could withdraw the Work at any time before sale if, “in its sole judgment,” “there is doubt as to [the work’s] authenticity or attribution.” Jancou then sued Sotheby’s and Noland for money damages asserting claims for breach of the consignment agreement and tortious interference with contract.  In granting summary judgment in Sotheby’s favor, dismissing it from the case, the court found as a matter of law that there was a “substantial, objective basis for Sotheby’s judgment that there was [] doubt as to attribution.”  See Marc Jancou Fine Art Ltd. v. Sotheby’s, Index No. 650316/2012 (Sup. Ct. N.Y. Co. Nov. 13, 2012).  Notably, however, in so holding, the court did not address the purported validity of the artist’s disclaimer under VARA.

VARA, 17 U.S.C. § 101 et seq., was enacted by Congress in 1990 to protect the “moral rights” of certain artists by “afford[ing] protection for the author’s personal, non-economic interests in receiving attribution for her work, and in preserving the work in the form in which it was created.”  Pollara v. Seymour, 344 F.3d 265, 269 (2d Cir. 2003).  The general rule under VARA is that “the author of a work of visual art . . . shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.”  17 U.S.C. § 106A(a)(2).  There are enumerated statutory exceptions to that rule, however, including in some instances where “[t]he modification of a work of visual art [] is a result of the passage of time or the inherent nature of the materials.”  Id. at § 106(A)(c).

In Jancou, upon receiving the Work, Sotheby’s noted “some bending” of three of the Work’s corners, as well as other “small areas of bending/indentation.”  Noland subsequently viewed the Work and, based on her observations, disclaimed authorship under VARA and demanded that Sotheby’s withdraw it from auction.  Prior to withdrawing the Work, however, Sotheby’s was shown a condition report by Jancou that it had commissioned before executing the consignment agreement and delivering the Work to Sotheby’s.  The report noted some “slight[]” bending and deformation, concluding that “[c]ompared to many other aluminum sheets of this body of work[,] this particular work is in very good condition.”  The report did not change Noland’s mind, however, and she again demanded that Sotheby’s withdraw the Work from the sale; so it did, based on the artist’s disclaimer of authorship under VARA.

The court granted summary judgment in favor of Sotheby’s, dismissing Jancou’s breach-of-contract and fiduciary-duty claims, finding as a matter of law that Sotheby’s had complied with its contractual and fiduciary obligations to plaintiff.  The court sidestepped the threshold question of whether Noland’s disclaimer was effective under VARA, holding that Sotheby’s was entitled under the consignment agreement to withdraw the Work “[g]iven Noland’s assertion of her right under VARA.”  But the court’s holding begs the question of whether Noland’s assertion of her rights under VARA was valid in the first instance.  For example, did one of the statutory exceptions described above apply? Was the alleged damage to the Work of such a degree that it “would be prejudicial to [Noland’s] honor or reputation,” as VARA requires? This latter question presumably is, at least in part, an objective—not subjective—inquiry, in which case the artist’s opinion may not be dispositive.

To be sure, even construing the facts in a light most favorable to Jancou, the Work was slightly damaged.  But there also was competing evidence in the record supporting a finding that the Work was in relatively “very good condition.”  Such factual questions ordinarily should not be resolved on a summary-judgment motion.  In any case, the court left unanswered the threshold question of whether Noland’s disclaimer was valid.  No doubt the court will be asked to answer that question in connection with Jancou’s pending claims against Noland—but perhaps an answer should have been provided already.