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Thome v. Alexander & Louisa Calder Foundation

December 1, 2009


Plaintiff appeals from an order of the Supreme Court, New York County (Charles E. Ramos, J.), entered April 29, 2008, which granted defendants' motion to dismiss the complaint and denied plaintiff's cross motion for summary judgment.

The opinion of the court was delivered by: Saxe, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Richard T. Andrias, J.P., David B. Saxe, John W. Sweeny, Jr., Eugene Nardelli Helen E. Freedman, JJ.


This appeal arises our of plaintiff's efforts to obtain from defendant, the Alexander & Louisa Calder Foundation, a positive response, or any response, to his submission seeking its authentication of two theatrical stage sets and related material in his possession (the Work) that he claims were the work of renowned artist Alexander Calder. It raises the question of whether a private foundation such as this has any legal obligation either to the public at large or to owners of art work to authenticate that work.

The Calder Foundation is a private foundation formed in 1988 under New York's Not-for-Profit Corporation Law. According to its 2004 tax return, the Foundation was formed for the principal purpose of "cataloguing all the works produced by the artist Alexander Calder and making his works available for public inspection in order to facilitate art education and research." Defendant Alexander S.C. Rower is the Foundation's chairman and director, and the remaining individual defendants are trustees of the Foundation. All the individual defendants are related to Alexander Calder by blood or marriage.

By mid-2007, the Foundation had documented more than 17,000 of Calder's works for publication in its catalogue raisonnÉ, an annotated, illustrated comprehensive listing of the artist's work. "A catalogue raisonnÉ is regarded as a definitive catalogue of the works of a particular artist; inclusion of a painting in a catalogue raisonnÉ serves to authenticate the work, while non-inclusion suggests that the work is not genuine" (Kirby v Wildenstein, 784 F Supp 1112, 1113 [SD NY 1992]).

Plaintiff's complaint sets out the history and circumstances surrounding the creation of the work at issue here, and for purposes of this CPLR 3211 motion, we accept the factual recitation as true (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). In the 1930s, Alexander Calder created a stage set, which later was destroyed, for a 1936 production of Erik Satie's musical composition Socrate. In 1975, plaintiff, a musician, composer and conductor of contemporary music, had a conversation with composer Virgil Thomson, who directed the 1936 production of Socrate. The two men discussed the possibility of re-creating the Calder set and mounting a new theatrical production of the piece. Thomson contacted Calder about the possibility of a revival, and Calder responded favorably.

Plaintiff asserts that when Calder came to New York from his home in France in October 1975 in connection with an exhibition of his work at the Whitney Museum, he discussed the plans for the re-creation of the set not only with plaintiff, but with a number of others, including Calder family members, two of whom are defendants in this action. The Whitney Museum was in possession of the drawings for the original 1936 theater set, and an architect was hired to prepare working plans. In July 1976 Calder's dealer brought the completed plans to Calder, who reviewed and approved them, writing on the plans, "Dear Joel I have looked at the drawings & find them OK, and think everything OK, & construction can begin when you are ready." A professor of fine arts was appointed by Calder's dealer to carry out the construction of the re-created set, and at Calder's request, to construct in addition a second set, one-third smaller than the original, to fit smaller prosceniums. The two sets and a maquette -- a small-scale model of the work -- were then completed, at plaintiff's expense.

Calder died in November 1976, before the date that had been arranged for him to see and have his photograph taken with the completed sets, and before the production was performed. The performance was postponed; the production was successfully staged in New York a year later. Plaintiff has kept the sets and the maquette since then.

In 1997, plaintiff, in need of funds, decided to sell the Work. He submitted the necessary documentation to the Foundation for its authentication and inclusion in the Foundation's Calder catalogue raisonnÉ. His complaint explains that without a catalogue raisonnÉ number from the Foundation, the Work is "essentially unmarketable," since in the art world, refusal or failure to include a work in the artist's catalogue raisonnÉ is tantamount to a determination that the work is not authentic.

On September 15, 1997, the Foundation sent plaintiff a postcard acknowledging that it had received his materials and stating that it had "everything necessary to consider these works for inclusion in the catalogue raisonnÉ." In 1998, plaintiff alleges, further documentation on the Work was submitted to the Foundation, which the Foundation similarly acknowledged receiving; plaintiff does not elaborate on the nature of, or the need for, this additional documentation.

Plaintiff also asserts that he had a conversation with defendant Alexander S.C. Rower in November 1997, in which Rower stated that the Work would be included in the catalogue raisonnÉ "in a manner to be determined," and the two discussed and agreed upon the descriptive wording, "given the issues raised by its uniqueness in Calder's oeuvre." According to plaintiff, Rower stated that the main set would be described as a "recreation" and that the second, smaller set would be described as a "new catalogue creation."

However, without explanation, the Calder Foundation did not include the Work in the catalogue raisonnÉ. Over the years since then, plaintiff has received offers for the sets, contingent on their authentication by the Foundation and the assignment to them of catalogue raisonnÉ numbers, but he had been unable to complete the proposed sales because the Foundation has not taken that step. Indeed, according to plaintiff's affidavit, in 2005, one of the potential buyers re-submitted the set materials to the Foundation, and "people at the Foundation" told his broker/appraiser that "they had a file on the Work, but that numbers would not be issued."

By summons and complaint dated March 14, 2007, plaintiff commenced this action, seeking, inter alia, a judgment declaring the Work to be an authentic work of and by Alexander Calder; a mandatory injunction compelling the Work's inclusion in the catalogue raisonnÉ; and damages for breach of contract, tortious interference with prospective business advantage, and product disparagement. Defendant moved to dismiss the complaint on the grounds that the complaint failed to state any cause of action and was time-barred. Further, defendants Mary Calder Rower, Sandra Calder Davidson, and Shaun Davidson moved to dismiss on the ground that, as non-compensated trustees of a qualified charitable foundation, they are immune from liability. Plaintiff cross-moved for an order converting defendants' motion to a motion for summary judgment and granting summary judgment to him, asserting that there could be "no question as to the authenticity" of the Work.

The motion court granted defendants' dismissal motion, and denied leave to replead. We agree with the court's dismissal of the complaint, concluding that the facts as alleged fail to state a cause of action. The allegations evoke our sympathy for plaintiff and some puzzlement at the lack of a formal response. Many, if not all, of the legal issues raised here might have been avoided had the Foundation provided plaintiff with some explanatory response to his submission. However, determination of this appeal turns on neither of those reactions. As defendants contend, and plaintiff does not dispute, it turns on whether a duty is owed to plaintiff by any of the defendants that would entitle him to any of the relief seeks -- whether based on the Foundation's not-for-profit status, or its explicit or implicit promises or assertions, or its unique position as the sole arbiter of whether work will be included in Calder's catalogue raisonnÉ. We discern no such duty on defendants' part, and therefore no enforceable right of plaintiff to relief against them.

While plaintiff challenges the Foundation's failure to respond either way to his submission, his first two causes of action, the first seeking a judgment declaring the Work to be an authentic work of and by Alexander Calder, and the second seeking a mandatory injunction compelling the Work's inclusion in the catalogue raisonnÉ, are based upon the contention that he is absolutely entitled to the Work's authentication and its inclusion in the Calder catalogue raisonnÉ. However, when all plaintiff's allegations are accepted as true, he has not established a right to either form of relief.

Mandatory Injunction Compelling the Work's Inclusion in the Foundation's Catalogue RaisonnÉ

Initially, we find no support for the proposition that our courts may by mandatory injunction affirmatively compel a private entity such as the Calder Foundation to include a particular work in its catalogue raisonnÉ based solely on the court's independent finding that the work is authentic.

Catalogues raisonnÉs are generally undertaken by a scholar who has studied the artist's work, a dealer with expertise in that artist's work, or the artist's estate, or some combination of them (see Michael Findlay, The Catalogue RaisonnÉ, in Spencer, The Expert Versus The Object: Judging Fakes and False Attributions in the Visual Arts [Ronald D. Spencer, ed], at 57 Oxford Univ Press 2004]). While in some instances more than one such catalogue of a particular artist's work may be created, in the case of a contemporary artist whose estate owns the reproduction rights to his or her works, the estate will have the right to preclude other authorities from publishing competing catalogues raisonnÉs of that artist's work (see Peter Kraus, The Role of the Catalogue RaisonnÉ in the Art Market, in The Expert Versus the Object, supra, at 69). However, regardless of whether an entity owns the artist's reproduction rights and consequently the unique entitlement to publish that artist's catalogue raisonnÉ, the creation of a catalogue raisonnÉ is a voluntary act, and neither its issuance nor its contents are controlled by any governmental regulatory agency (id.). Nor is there any guarantee that the art world will accept the validity and reliability of a catalogue raisonnÉ; indeed, catalogues may be rejected or ignored as unreliable (id.). Whether the art world accepts a catalogue raisonnÉ as a definitive listing of an artist's work is a function of the marketplace, rather than of any legal directive or requirement. As a consequence, neither the creation of such a catalogue nor its inclusion or exclusion of particular works creates any legal entitlements or obligations.

Assuming the truth of plaintiff's assertion that the Foundation has been accepted by the art world as the body to create an authoritative Calder catalogue raisonnÉ, that fact alone does not give a court the right to dictate what the Foundation will include in that catalogue, just as no court has the authority to compel a scholarly author of a treatise on Calder to include a listing or discussion of a particular work. Unless plaintiff can establish an independent legal right to have the Work included in the catalogue, such as an enforceable contractual promise to include it, there can be no injunction mandating the Work's inclusion.

Importantly, the injunctive relief plaintiff seeks is an order compelling the authentication of the Work; he does not seek an order compelling merely a response. In any event, however, as a practical matter, plaintiff's factual allegations establish that the Foundation's non-response to his submission was in fact a rejection of the submission. At some point after the elapse of a reasonable amount of time, the failure to issue an affirmative response, and indeed the failure to include the Work in the catalogue raisonnÉ, had to be read as a refusal to include the Work in the catalogue. Indeed, plaintiff himself asserted that after the broker/appraiser working for one of the collectors interested in purchasing the sets re-submitted the documentation to the Foundation, he was told that "they had a file on the Work, but that ...

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