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Bilinski v. Keith Haring Foundation, Inc.

United States District Court, S.D. New York

March 6, 2015

ELIZABETH BILINSKI, et al., Plaintiffs,

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Plaintiffs: Brian C. Kerr, Brower Piven, A Professional Corporation, New York, NY.

For Defendants: Margaret Antinori Dale, Qian Jennifer Yang, Sarah Schrank Gold, Proskauer Rose LLP (NY), New York, NY.

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DENISE COTE, United States District Judge.

Plaintiffs assert that they are owners of Keith Haring artwork and that the actions the Keith Haring Foundation (" Foundation" ) and related defendants interfered with the exhibition and sale of their artwork, reducing the value of their property. Keith Haring (" Haring" ), who died in 1990, was a prolific artist and social activist whose work responded to the New York City street culture of the 1980s. Plaintiffs bring federal and state antitrust claims, as well as a false advertising claim under the Lanham Act. Plaintiffs also seek relief under New York law for defamation, conspiracy to defame, tortious interference with prospective business relations, trade libel, intentional infliction of economic harm/prima

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facie tort, and unjust enrichment. Defendants have moved to dismiss the complaint in its entirety. For the following reasons, defendants' motion to dismiss is granted.


This motion to dismiss is addressed to a consolidated amended complaint (" Complaint" ) filed on August 13, 2014. This is the third motion to dismiss the claims in this action, the plaintiffs having been given an opportunity to amend in response to the two prior motions.[1]

The following facts are asserted in the Complaint and taken from documents integral to it. This case principally concerns the authentication and sale of Haring artwork. Defendants include the Foundation, a New York not-for-profit corporation established by Haring to continue his philanthropic legacy, and individual officers and directors of the Foundation Julia Gruen (" Gruen" ), Kristen Haring, Gilbert Vazquez (" Vazquez" ), Allen Haring, Tom Eccles, and Judith Cox. The Complaint also names as defendants Studio LLC, the entity that formally operated an authentication committee for the Foundation, as well as the Estate of Keith Haring (" Estate" ) and David Stark (" Stark" ), the president of Artestar, a company that represents the Foundation in licensing and consulting. Gruen and Stark are compensated by the Foundation; Gruen receives a salary and Stark receives fees for licensing and consulting work.

Haring bequeathed the majority of his works to the Foundation, as well as " any copyrights relating hereto" and trademarks.[2] The Foundation has maintained a collection of Haring works since his death, valued at approximately $25 million as of 2011. The Foundation earns income by selling pieces from its collection.

Haring's work is valuable. From 2008 to 2011, the Foundation sold an unspecified number of Haring works for a total of $4,598,697. In May 2014, three Harings were sold through the auction house Sotheby's. Two of these pieces were sold for $9,458,000 by Jeffrey Deitch (" Deitch" ), who the Complaint describes as an " ally" of the defendants.

Until 2012, the Foundation operated an Authentication Committee (" Committee" ) to review artwork attributed to Haring and issue opinions regarding the authenticity of submitted works. Although the Committee was formally operated by Studio LLC, it was controlled by the Foundation. The dissolution of the Committee in 2012 has increased the value of previously-authenticated works.

Many auction houses require a certificate of authentication as a condition of sale, but will sell Haring artwork without a certificate with the tacit approval of the Foundation. Haring artwork may also be sold privately at reduced prices without authentication or the Foundation's approval.

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The plaintiffs own 111 pieces of Haring work they believe to be authentic.[3] All of this artwork came to the plaintiffs through Angelo Moreno (" Moreno" ), who was a personal friend of Haring. Delta Cortez (" Cortez" ), who also knew Haring, acted on behalf of Moreno to sell a number of Moreno's Harings to plaintiff Elizabeth Bilinski (" Bilinski Collection" ).

In January 2007, Bilinski showed the Bilinski Collection to an art dealer, plaintiff Lucas Schoormans (" Schoormans" ). Working on Bilinski's behalf, Schoormans submitted photographic transparencies for thirteen works on March 28, 2007, and transparencies for an additional twenty-eight works on May 4, to the Foundation. Schoormans also submitted letters of provenance from Cortez and Moreno. On May 7, 2007, the Foundation rejected the works as " not authentic." The letter of rejection did not provide a reason for the rejection, and stated that the determination by the Committee could " change by reason of circumstances arising or discovered . . . after the date of this opinion." Following the Foundation's rejection, Bilinski gathered additional evidence of authenticity. This evidence included a signed statement of origin from Moreno, in which he explained that he had received the works as gifts from Haring. An attorney for Bilinski and Schoormans deposed Moreno and Cortez.[4]

On May 8, 2008, the Foundation accused Bilinski in writing of selling or making " available for sale items you are representing to be original works by Keith Haring when you have been duly warned they are not," and warned Bilinski that legal action could follow if she did not cease this activity. Despite Bilinski's efforts to address the matter with the Foundation in 2008, the Foundation refused to respond.

In 2010, Bilinski resumed her efforts to sell her collection. In the spring or summer of 2010, Bilinski brought the Bilinski Collection to Sotheby's. A Sotheby's representative indicated his belief that the works were authentic, but reported that he could not do anything to help her because of Gruen. Bilinski then brought the works to Gagosian Gallery on May 26, 2010. After conferring with Gruen and others, the gallery refused to offer the works for sale.

Bilinski then sought to resubmit the pieces to the Foundation for authentication. In July 2010, Bilinski's representative, Petruzzelli,[5] wrote to the Foundation that Bilinski now had the necessary information to authenticate her collection. Gruen asked that Bilinski provide a written Power of Attorney or notarized letter authorizing Petruzzelli to speak on her behalf, and that she resubmit the Bilinski Collection through her attorneys on account of Bilinski's previous threats to sue. In response to Petruzzelli's inquiry, on February 7, 2011, the Foundation informed Bilinski that it would not reconsider its judgment about the authenticity of the Bilinski Collection.

In 2012, Bilinski received further confirmation that her Haring works were authentic. The auction house Guernsey's told Bilinski that the works appeared to be authentic and it would be willing to produce an auction of the Bilinski Collection. Bilinski commissioned a forensic analysis of two of the works. The analysis concluded

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that the two paintings " could be considered as having been produced in the mid-1980s."

In early 2013, the plaintiffs participated in an exhibition organized by Michael Rosen (" Rosen" ) and Colored Thumb Corp. (" Colored Thumb" ) featuring the plaintiffs' Haring works (" Miami Exhibition" ). The Miami Exhibition had a VIP opening on March 6, and was scheduled to run from March 7-10. Stark went to the exhibition to ascertain the authenticity of the works shown.

On March 8, the Foundation filed suit against Rosen and Colored Thumb (" Miami Complaint" ) and sought a temporary restraining order. The Miami Complaint described the works shown in the Miami Exhibition as " fakes, forgeries, counterfeits and/or infringements." The motion for a temporary restraining order referred to the show as " fraudulent." That same day, the Foundation and the organizers of the Miami Exhibition agreed to the removal of all but ten works from the Miami Exhibition, and to remove and destroy all copies of the brochure and/or catalog for the Miami Exhibition (" Agreement" ). In a press release of March 8 (" Press Release" ), the Foundation described the lawsuit as an " effort to stop the display of fake Haring works at the exhibition." The Press Release reports that the organizers of the Miami Exhibition " agreed to remove all fake Haring works from the exhibition immediately and to destroy the offending catalogue that illustrated most of the fake works." The Press Release also stated that the Foundation " plans to continue to pursue this lawsuit, carrying the message that it will enforce the Foundation's rights and protect the artist's legacy in every case of suspected fraud." Plaintiff Arthur Canario (" Canario" ) lost the sale of artwork to an unidentified museum in London as a result of the Press Release and Miami litigation.


When deciding a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., a court must " accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir. 2009). To survive a motion to dismiss, " a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). A complaint must do more than offer " naked assertions devoid of further factual enhancement." Id. (citation omitted). A court is " not bound to accept as true a legal conclusion couched as a factual allegation." Id.

" For purposes of a motion to dismiss, we have deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference, as well as . . . documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit." Rothman v. Gregor,220 F.3d 81, 88 (2d Cir. 2000) (citation omitted). Plaintiffs have attached images and descriptions of their artwork to the Complaint. The Complaint also ...

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