|Will Sobel's claim end up on ice?|
William Eggleston, Freezer
Jonathan Sobel, a photograph collector recently issued proceedings against William Eggleston, the photographer widely credited with popularising colour photography.
As the writ explains, “The gravamen of [Sobel’s] Complaint centers on the sale of eight photographic images …the reprints are identical in image to original photographs which Eggleston had earlier created and designated as individually numbered limited edition works… A principal factor in Sobel’s decision to purchase photographs ... was that these photographs were, in fact, limited editions.”
Whilst Sobel owns a number of physical prints, clearly the copyright in the prints remains with Eggleston as the “author”. Therefore, from a copyright perspective, at least, there is nothing to stop Eggleston from making further prints.
As a result, the writ is based on the following causes of action (notably, not breach of contract):
(1) Violation of New York Arts and Cultural Affairs Law Section 11.01(1) [this section defines a “limited edition” as “works of art produced from a maser, all of which are the same image and bear numbers or other markings to denote the limited production thereof to a stated maximum number…”];
(2) Fraudulent misrepresentation [Yes, really!];
(3) Negligent misrepresentation [on the basis of a “special or privity-like relationship … between Sobel and the defendants, imposing … a duty to impart to Sobel … true and correct information pertaining to the edition size of these works"];
(4) Unjust enrichment;
(5) Promissory estoppel [i.e. Sobel relied on the “clear and unambiguous promise” that the photographs were in fact limited editions when he purchased them and this promise was “false”.]
Whilst I do not pretend to be an expert in American law, it looks like a stretch for Sobel to succeed in any of these claims.
|Eggleston's, untitled woman in colour |
from Los Alamos 1966-74.
She doesn't look convinced by the claims
I am unfamiliar with the laws surrounding limited editions, however, as Daniel Grant’s blog on the Huffington Post eloquently explains, “important exceptions [to various state laws on limited editions] are made for earlier limited editions that are of different sizes (a 10" x 8" photograph produced in a 5" x 4" format), different production techniques (a gelatin silver print produced as a platinum print or a photogravure) or different numbering (Arabic numbers on one edition, Roman numerals on another).” In other words, limited editions are only limited by the number of a particular type of print and the sale of a limited edition dye-transfer print does not provide the purchaser with a right to prevent the artist making further prints of his work (in a different medium) in the future. Had further dye-transfer prints in the same size etc been made Sobel might well have a cause of action but as it stands...
Even if it is ok to make new prints from a legal perspective, is it worth potentially alienating your market by bringing out new editions on a regular basis? Clearly if an artist regularly brings out new “limited editions” he or she will ultimately erode the value in all previous works and reduce the likelihood of purchasers continuing to buy the work.
Or will they? For a business/art world insight on the case, see Felix Salmon’s Reuters blog on the case. He notes that “[i]n reality ... Sobel’s prints have probably gone up in value, not down, as a result of Eggleston’s splashy reintroduction to the contemporary art market, in the form of a Christie’s sale which raised $5.9 million and set a new record price for the artist.” So Sobel does not appear to have a cause of action and, even if he did, may not even be able prove damage. Why has he brought the claim then? Is this just the result of poor legal advice or is this the start of some groundbreaking changes to the art world? It is worth noting that Sobel has requested a jury trial. If a jury is indeed appointed (which I understand is no longer a foregone conclusion in US civil proceedings) they may well decide the case against all expectations - there is no such thing as a foregone conclusion in litigation.
|Eggleston, The Red Ceiling|
Would Eggleston have felt the need to make new prints if there was an artist’s resale right across all States (and one which was adequately enforced)? All the large price tags have been in relation to recent sales of old prints (none of which, as I understand it, were still in the artist’s possession although one was purchased from Willliam Eggleston III).
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