The opinion of the court was delivered by: Cedarbaum, District Judge.
This action arises from a dispute over the authenticity of
certain works of art attributed to Lazar Khidekel, who was born
in Vitebsk in 1904 and has been associated with the Suprematist
movement in Russian art. In 1918, Khidekel entered the Vitebsk
School of Art. Kazimir Malevich was the theorist and leader of
the Suprematist movement, and is the movement's most widely
recognized and celebrated artist. When Malevich arrived in
Vitebsk in November 1919, Khidekel became one of Malevich's
pupils. Additionally, Khidekel was a member of UNOVIS ("Affirmers
of the New Art"), a group that Malevich founded at Vitebsk in
1920. Other members of UNOVIS included Ilya Chashnik and Nikolai
Suetin. In 1922, Malevich moved to Petrograd, along with some
members of UNOVIS, including Khidekel. In that same year,
Khidekel became a student of architecture at the Petrograd
Institute of Civil Engineering. Although he continued to create
works of art during the 1920's, from 1930 to 1985, Khidekel
taught architecture at the Leningrad Institute of Civil
Engineering. In 1986, Lazar Khidekel died in the former Soviet
Union at the age of 82.
Claude and René Boulé, Parisian art collectors who own 161
works attributed to Khidekel, filed this action against Mark and
Regina Khidekel, a son and daughter-in-law of the artist, as well
as Ingrid Hutton and the Leonard Hutton Galleries, the art dealer
and art gallery that exhibited and offered for sale the
collection of Khidekel works that Mark and Regina inherited from
the artist. The Boulés sue under the Lanham Act,
15 U.S.C. § 1125(a), claiming that certain statements attributed to the
defendants falsely disparaged the authenticity of the Boulés'
collection in order to promote the sale of the Khidekel paintings
at the Hutton Galleries. The only Lanham Act claim that survived
partial summary judgment is a claim against the Hutton defendants
for statements in their exhibition catalog in early 1995. See
Boulé v. Hutton et al., 70 F. Supp.2d 378 (S.D.N.Y. 1999). The
Boulés also assert various pendent state law claims which arise
from the same nucleus of operative fact, including violations of
the New York General Business Law, product disparagement,
defamation, tortious interference with business relationships,
common law unfair competition, unjust enrichment, breach of
contract, common law fraud, prima facie tort and the tort of
"false light." The majority of these claims required the Boulés
to prove the falsity of defendants' statements that impugn the
authenticity of the Khidekels owned by the Boulés.
A bench trial was held from September 27, 2000 through October
6, 2000. In addition to the testimony of Claude and René Boulé,
plaintiffs presented the testimony of Patricia Railing, an art
historian who lives in England, Jean-Claude Marcadé, a French
art historian and researcher at the Centre National de Recherche
Scientifique in Paris, Samuel Palenik, an analytical forensic
microscopist, Andrew Sulner, a forensic document examiner, and
Serge Essaian, a Russian artist who lives in Paris. Plaintiffs
also submitted deposition testimony of Yvette Moch, a former
employee of the Chauvlin gallery in Paris and organizer of a
Russian avant-garde exhibition at the Centre d'Art Contemporain
in Tanlay, France, Helene Larroche, owner of Itinéraires, a
Paris bookstore and art gallery, and Edith Flak, owner of the
Gallery in Paris. In addition to the testimony of Ingrid Hutton
and Mark and Regina Khidekel, defendants presented the testimony
of Alexandra Shatskikh, a Russian art historian employed by the
Research Institute of Art History in Moscow, and Eugena Ordonez,
an art conservator and technical analyst.
After examining all the evidence, observing the demeanor of the
witnesses and considering the plausibility and credibility of the
testimony, I make the following findings of fact.
1. Claude and René Boulé currently own 161 works on paper and
one oil painting attributed to Lazar Khidekel, as well as works
of Larionov, Kogan, Sofranova, Yudine, and Cahvovra.
2. The Boulés purchased 176 works on paper attributed to
Khidekel over a period of four years, beginning in 1984, from a
private dealer named Vladmir Tsarenkov whom Claude Boulé met
outside of the Hotel Druout. Tsarenkov requested that the Boulés
conceal his identity.
3. The Boulés paid a total of 1.5 million French Francs ("FF")
in cash to Tsarenkov for the works.*fn1
4. Tsarenkov did not provide the provenance of any of the works
that he sold to the Boulés.
5. In 1991, the Boulés also purchased for £ 2,800 an oil painting
attributed to Khidekel, "Suprematist Composition," from a
Sotheby's auction in England.*fn2
6. In the summer of 1988, Jean-Claude Marcadé brought Mark
Khidekel to the Boulés' home in Paris. At that meeting, Claude
showed Mark 20 to 25 Khidekel works. Mark appeared moved that his
father had admirers in Paris, and did not express any skepticism
about the authenticity of the Boulés' works at that time. Claude
is fluent in French and is able to understand and speak some
English and Russian. Mark is fluent in Russian and is able to
understand and speak some English. Marcadé, who is fluent in
both Russian and French, acted as an interpreter at this meeting
and at all subsequent meetings at which he was present.
7. In 1989, Helene Larroche, owner of the Itinéraires book store
and art gallery, proposed a joint exhibition of the Khidekel
collections of the Boulés and of Mark. On July 25, 1989, the
Boulés and Mark signed an agreement for this joint exhibition.
8. The Itinéraires exhibition was canceled because Mark failed
to furnish his father's works by the date specified in the
9. When Mark visited the Boulés in July 1989, he gave Claude a
photograph of his father as a gift, and he noted that his father
had personally framed the photograph.
10. In March 1990, Larroche arranged for Regina to meet the
Boulés. At this meeting, Regina apologized for Mark's failure to
comply with the agreement for the joint exhibition and attributed
this failure to the political upheaval surrounding the
dissolution of the former Soviet Union in the fall of 1989.
11. Claude informed Regina that the Boulés were planning to lend
their Khidekel works to an exhibition at the Joliette Museum of
Art in Montreal, Canada. Regina did not express any objection to
the Boulés' display of their works at the Joliette exhibition.
12. On June 6, 1991, Mark, accompanied by Serge Essaian's
daughter and Jean-Claude Marcadé, visited the Boulés at their
home. Mark gave the Boulés a ceramic vase as a gift and
inscribed the photograph of his father which he had given to the
Boulés in 1989. At this visit, Mark asked whether he could
display his Khidekel collection with the Boulés' collection at
the Joliette exhibition. Claude told Mark that since limited
funds had been allotted for the exhibition, it would not be
possible to include Mark's works, but Mark could request an
invitation to lecture at the exhibition.
13. On June 9, 1991, Mark, Regina, and Marcadé joined the
Boulés and two of the Boulés' children for lunch at the
Boulés' home in Paris. Mark and Regina expressed their desire to
attend the Joliette exhibition in order to show slides of their
own collection. Mark and Regina also commented that they would
like to lecture at the Joliette exhibition about Khidekel and his
works. Mark and Regina did not express any reservations regarding
the authenticity of the Boulés' collection.
14. Mark and Regina made an unexpected visit to the Boulés' home
on June 11, 1991. They arrived without an interpreter and
communicated with Claude using a combination of Russian, English,
French and hand signals. Mark said that he wished to show Claude
slides of his father's works. Claude then reciprocated by showing
her Khidekel collection. At this time, a substantial portion of
the Boulés' Khidekel collection was in transit to the Joliette
exhibition. Claude showed Mark all of the original works that
remained at the Boulé residence and slides of the remaining
works. Mark noted some differences between the Boulés'
collection and his collection, and commented that the bulk of the
Boulés' collection was created when Lazar Khidekel was a very
young student — possibly as early as 1920.
15. At some point during the June 11 meeting, Mark agreed to sign
certificates of authenticity for the Boulés. Mark insisted on
receiving cash for the certificates, because he did not have a
checking account and would be leaving Paris shortly. Since Mark
insisted on being paid in cash, and the Boulés had only 40,000
FF on hand, Mark was willing to sign only 16 certificates, at a
price of 2,500 FF per certificate. Mark chose among the 44
original works that remained at the Boulés' residence, examined
the works closely with a magnifying glass and signed certificates
of authenticity on the backs of photographs corresponding to the
selected works. Regina was present at the time that Mark signed
16. Fifteen of the certificates include the following statement:
"I, Mark Khidekel, having examined the artwork shown to me
measuring . . ., hereby confirm that it is the work of my father,
Lazar Khidekel, and that it can be identified as a study."
17. In November 1991, Claude conveyed Mark and Regina's request
to participate in the Joliette exhibition. In the spring of 1992,
Mark wrote a letter to the Joliette museum containing his and
Regina's passport numbers and noted that he and Regina would be
available to lecture on a variety of subjects. The letter also
noted that he and Regina would be accompanied by their
11-year-old son Roman. The Khidekels ultimately did not
participate in the Joliette exhibition.
18. The Boulé collection was exhibited in different galleries
throughout Canada from August 1992 to August 1993.
20. At the end of 1994, Patricia Railing asked the Boulés to
lend some of their Khidekel collection to an exhibition at the
University of Iowa which was to be entitled "The Faces of
Suprematism." Ultimately, for financial reasons, the University
of Iowa exhibition was not held.
21. After learning that the Hutton Galleries exhibited, and
offered for sale, some of Mark and Regina's Khidekel collection
at the International Fair of Contemporary Art ("FIAC") in Paris
in October 1994, the Boulés decided to sell some of their own
Khidekel collection. The Boulés contacted Edith and Roland Flak,
owners of a Paris gallery that specializes in 20th Century art,
to sell some of the Boulés' Khidekel collection.
22. The Boulés consigned four of their Khidekel works to the
Flaks for display at the April 1995 Art Messe in Frankfurt. The
gallery had agreed to pay the Boulés 40,000 FF per work sold at
the Art Messe, but no works were sold.
23. In December 1995, the Flaks orally agreed to purchase at
40,000 FF per work a group of works from the Boulé Khidekel
collection over a two to three year period, but did not work out
the details of when, and under what circumstances, payment would
be made. The arrangement appears to have been a consignment with
a fixed payment per work sold.
24. In 1995, the Hutton Galleries exhibited and offered for sale
several dozen works on paper from Mark and Regina's collection at
prices averaging over $18,000 each. Only four works were sold —
including two works that had not been listed for sale.
25. From October 1994 through February 1996, the Khidekels and
Ingrid Hutton made a number of statements that impugned the
authenticity of the ...