Visual Artists Rights Act in Action

Enacted in 1990, the Visual Artists Rights Act (“VARA”) bestows upon the living artist “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 USCA § 106(a) (2) ).

Cady Noland, the creator of a print on aluminum entitled Cowboys Milking (“the work”) did just that when Noland discovered that Sotheby’s was about to offer the work at auction.  Noland disclaimed authorship of the work on account of apparent damage and demanded that Sotheby’s withdraw it from auction.  Sotheby’s implored Noland to change her position but to no avail.

With Noland’s refusal, Sotheby’s immediately contacted the consignor Marc Jancou Fine Art, LTD, to report that it was withdrawing the print from auction, citing Noland’s disavowal of the work.  Bitterly disappointed, Jancou sued Sotheby’s contending that a)  Sotheby’s breached its contract to offer the work at auction; and b) Sotheby’s breached its fiduciary duty to Jancou (presumably on the theory that Sotheby’s permitted Noland to inspect the work without Jancou’s knowledge).

In Marc Jancou Fine Art, LTD v. Sotheby’s, Inc., New York County Judge Ellen M. Coin, on November 13, 2012, dismissed Jancou’s suit, affirming the vitality of VARA.  First, Judge Coin cited to the consignment agreement which gave Sotheby’s the right to withdraw any work from auction when there “is doubt as to its authenticity or attribution,” finding that Noland’s assertion of her right under VARA created more than “doubt” as to attribution – – and thus Sotheby’s was well within its right to withdraw the work. 

Second, Judge Coin was equally dismissive Jancou’s fiduciary theory, holding:

 “There is no indication that Sotheby’s withdrawal of the print item was made in bad faith.  On the contrary, Sotheby’s has established that there was ample support for its determination that there was doubt as to the print’s attribution, and thus Jancou’s claim for breach of fiduciary duty must be dismissed.” (id.at 246-248)

If you would like more information about this post or other VARA issues, please contact Dennis Wade at dwade@wcmlaw.com.