Gagosian not off the hook

The New York state Supreme Court in Manhattan has ruled that Larry Gagosian and Gagosian Gallery Inc. must continue to defend a fraud claim brought by Ronald Perelman.

By way of background, in September 2012, Perelman, an American businessman with a mere net worth of around US$14.1 billion, sued Gagosian Gallery Inc. and its founder and owner, Larry Gagosian alleging that they had "concealed material information from [Perelman] and used their dominant position in the contemporary art world to manipulate the price of a certain artwork in transactions with [Perelman] in gross violation of the fiduciary duties owed to [Perelman]."

Perelman brought claims for breach of contract, breach of fiduciary duty, fraud, breach of the covenant of good faith and fair dealing, unjust enrichment and deceptive business practices.

On the same day Gagosian sued Perelman, accusing him of reneging on an agreement to buy two works of art. In October 2012, however, the Gagosian parties dropped their suit and subsequently filed a motion to dismiss all of Perelman’s claims.

Unfortunately for Gagosian, while New York State Supreme Justice Barbara Kapnick dismissed the majority of the charges (in her decision of 31 January 2104), she ruled that the fraud claim may stand.

Businessweek reports:

The judge said that while the plaintiffs, Perelman’s MAFG Art Fund and MacAndrews & Forbes Group LLC, are “experienced and sophisticated” business investors, the allegation that Gagosian and his gallery had “superior and unique” knowledge of the art world is enough for the fraud claim to survive.  

“Plaintiffs allege that Gagosian has enormous power to influence, and even set, the markets for the artists he represents because of his impressive roster of artists and his access to and knowledge of the largest private art collections in the world,” Kapnick wrote. “Even though the plaintiffs are sophisticated art collectors and investors, the court cannot say, as a matter of law, that plaintiffs’ alleged reliance on defendants’ representations regarding the art market and intrinsic value of particular works of art was per se unreasonable or unjustified.”

The full decision can be found here.

Gagosian has 30 days (from 31 January) to file and serve an Answer to the fraud claim.

Perhaps most interesting is the power and influence that one individual is said to wield in the art world - and the other scary insights into the art world that the case provides. Details can be found in the initial complaint and amended complaint.


Source: Businessweek, 4 February 2014

Dylan's clones??

Another week, another art copying row. The opening of an exhibition of paintings by Bob Dylan (perhaps *slightly* more famous for his singing) has reportedly lead to a number of accusations of copying. Hosted by the Gagosian Gallery in New York, the exhibition is described as follows:

"Dylan's drawings and paintings are marked by the same constant drive for renewal that characterizes his legendary music. He often draws and paints while on tour, and his motifs bear corresponding impressions of different environments and people. A keen observer, Dylan is inspired by everyday phenomena in such a way that they appear fresh, new, and mysterious.

The Asia Series, a visual reflection on his travels in Japan, China, Vietnam, and Korea, comprises people, street scenes, architecture, and landscapes, which can be clearly identified by title and specific cultural details…"

It seems, however, that rather than being inspired by his travels, the works are also inspired by other artists' works. Fans have point out a number of the works bear remarkable similarities to the works of other artist. These include the following examples:

Bob Dylan’s painting / Léon Busy’s photo

Bob Dylan’s painting / Henri Cartier-Bresson photograph

Bob Dylan’s painting / Dmitri Kessel photo


As the New York Times points out, it is not the first time that Dylan has been accused of "borrowing" as his use of the writings of others in his lyrics has been noted in the past. It would, however, be less controversial if Dylan had credited his source material - After all, all the greats borrow, don't they?? It remains to be seen whether the 'original' artists object to Dylan's works and take any action.

Source: New York Times, 26 September 2011

Cariou v Prince and the Gagosian Gallery: Fair use of photographs in artworks

Further to this post, the Gagosian, in association with Richard Prince, is in more trouble this month following a decision of the US District Court of the Southern District of New York which has made headlines around the world.

The claim was brought by professional photographer Patrick Cariou who had published a book of numerous photographs that he had taken of Rastafarians and landscape in Jamaica over a six year period. The defendants were Richard Prince, the well known so-called “appropriation artist”, as well as the Gagosian Gallery, the art dealer and gallery which inter alia represents Price and markets the artworks he creates.

The action concerned a series of paintings by Prince entitled Canal Zone, which included photographs from Carious’s book, Yes, Rasta. Prince had painted over some parts of certain photographs, used only portions of other photos, while some were used in their entirety or nearly so. Indeed, in total, Prince admitted using at least 41 photos from Yes, Rasta as elements of Canal Zone works. For its part, the Gagosian had displayed 22 of the 29 Canal Zone paintings at one of its Manhattan locations at the end of 2008. It had also published and sold an exhibition catalogue for the show, similarly entitled Canal Zone, which contained reproductions of many of the Canal Zone paintings (including some paintings which were not shown at the Gallery) as well as photographs of Cariou's photos in Prince's studio. Accordingly, Cariou brought his claim for copyright infringement and sought summary judgment.

One of Prince's Canal Zone works - which uses Cariou's photos

The defendants did not dispute that Cariou owned a valid copyright in the photos. However, they asserted that his photos were mere compilations of facts concerning Rastafarians and the Jamaican landscape, which were arranged with minimum creativity in a manner typical of their genre, and therefore not protectable by law. The Court rejected this argument noting that it was a matter of long settled law for that creative photographs were worthy of copyright protection even when they depicted real people and natural environments. Therefore, Cariou’s photos were protected by copyright.

The defendants’ next argument was that their use of Cariou’s photos was allowed under the doctrine of Fair Use (as codified in Section 107 of the 1976 US Copyright Act). The Court considered each of the factors relevant in a finding of fair use and found that none favoured the Defendants for the following reasons:

1. Purpose and character of the use of the copyright work

The defendants’ claimed, the photos were merely the “raw materials” which they had used in the creation of new transformative works. The Court refused to accept that appropriation was per se fair use, and found that Prince’s works were only transformative to the extent that they comment on the photos, and so, to the extent that Prince’s works merely recast, transformed, or adapted Cariou’s photos, they were infringing derivative works. Further, the Court said, since, on the facts Prince did not intend to comment on Cariou’s photos when he appropriated them, the transformative character of his works was minimal. Indeed, the Court found that in the works which most heavily drew on Cariou's photos, such as those in which Prince used entire photos from Yes, Rasta, there was vanishingly little, if any, transformative element.

The Court then looked at whether the infringing works nevertheless served a commercial purpose of nonprofit educational purpose. While, the Court recognised the inherent public interest and cultural value of public exhibition of art and of an overall increase in public access to artwork, on the facts it held that the defendants' use and exploitation of the photos was substantially commercial, especially where the Gagosian was concerned. In this respect, the Court noted that the Gagosian had sold eight of the Canal Zone paintings for a total of US$10,4 million, and seven other Canal Zone paintings had been exchanged for art with an estimated value between US$6 million and US$8 million.

The Court was also considered the proprietary of the defendants’ conduct. The background facts showed that Prince's employee had contacted the publisher of Yes, Rasta to purchase additional copies of the book, but neither Prince nor his employee had ever asked the publisher about licensing or otherwise sought permission to legitimately use Yes, Rasta or the photos contained therein. Nor had Prince attempted to contact Cariou by email to enquire about usage rights to the photos, even though Yes, Rasta clearly identified Cariou as the sole copyright holder and even though Cariou's website displayed an email address at which he can be reached. Under these circumstances, the Court said, Prince had acted in bad faith. Moreover, since the record established that the Gagosian was aware that Prince is an habitual user of other artists' copyrighted work, without permission, and because it was equally clear that the Gagosian neither enquired into whether Prince had obtained permission to use the photos contained in the Canal Zone paintings nor ceased their commercial exploitation of the paintings after receiving Cariou's cease-and-desist notice, the Gagosian had also shown bad faith.

2. Nature of the copyright work

The Court found Cariou's photos to be highly original and creative artistic works constituting "creative expression for public dissemination" and "within the core of the copyright's protective purposes."

3. Amount and Substantiality of the portion used in relation to the copyright work as a whole

The Court noted that Prince had appropriated entire photos in a number of his paintings, and the central figures depicted in portraits taken by Cariou and published in Yes, Rasta in the majority of his paintings. Since those central figures were of overwhelming quality and importance to Cariou's photos, going to the very heart of his work, the amount of Prince's taking was substantially greater than necessary.

4. Effect of use upon the potential market for or value of the copyright work

It was clear that the market for Cariou's Photos was usurped by defendants since it was undisputed that a gallery owner had discontinued plans to show the Yes, Rasta photos, and to offer them for sale to collectors, because she did not want to appear to be capitalising on Prince's works and did not want to show work which had been "done already" at the Gagosian. Further, since it had been recognised that licensing original works for secondary use by other artists is the kind of derivative use that creators of original works do in general develop, and so the widespread unlicensed use in new artworks would destroy the market for such licenses, Prince had unfairly damaged both the actual and potential markets for Cariou's original work and the potential market for derivative use licenses for Cariou's original work.

Since none of these factors weighed in favour of the defendants, the Court held that they could not rely on Fair Use and, accordingly, the defendants were both found directly liable for copyright infringement of Cariou’s photos and the Court granted Cariou’s motion for summary judgment in its entirety.

In addition to restraining the defendants from infringing the copyright in the Cariou’s photos, or any other of his works, the Court ordered that they deliver up for impounding, destruction, or other disposition, as Cariou may determine, all infringing copies of the photographs, including Prince’s paintings and unsold copies of the Canal Zone exhibition book, in their possession, and other articles for making such infringing copies.

Damages remained to be assessed, but with Prince and the Gagosian having made millions of dollars from sale of the Canal Zone works, at this stage it looks like Cariou can expect a large pay day.


To read the whole decision see here.

The Innocent Art Sale Test

Above: "The Innocent Eye Test", a comment on the art world?

Late last week, an art collector, Robert Wylde, filed a lawsuit against the Gagosian Gallery in New York. The lawsuit has it roots in 2009, when Mr Wylde purchased a Mark Tansey painting called ‘The Innocent Eye Test’ from the gallery for US$2.5 million. Mr Wylde claims that the Gagosian did not tell him at the time that the Metropolitan Museum in New York already owned 31% of the work and had been promised the painting would eventually be gifted to the museum in full.

Wylde still has possession of the painting and is reportedly seeking several million dollars in damages.  The suit also contends that the gallery had agreed to sell Mr Wylde a Richard Prince painting for $2.2 million in 2009 but cancelled the sale when it got a higher offer.

According to the New York Times, the Gagosian has stated that owner, Charles Cowles, "represented that he had clear title to the painting, which was viewed for sale in his apartment, and the gallery acted in good faith at all times in selling the painting."

When Cowles was contacted by the New York Times, he admitted that the mix-up was his fault: "One day I saw it on the wall and thought, 'Hey, I could use money,' and so I decided to sell it… And now it's a big mess."