Art Foundation Has No Duty to Authenticate Set

(CN) - An art foundation is not obligated to rule whether a stage set is the authentic work of Alexander Calder, a New York appeals court ruled.

Joel Thome sued the Alexander & Louisa Calder Foundation to compel a ruling on the authenticity of a stage set Calder allegedly created for the 1936 production of Erik Satie's musical composition "Socrate."

The set had been destroyed, but Thome said he rebuilt it with Calder's blessing for a planned revival of "Socrate."

Calder was photographed with the set before he died in 1976, and the production continued one year later.

When Thome decided to sell the set, he sought a declaration of its authenticity from the foundation. Since 1997 the foundation has not placed the stage set in Calder's catalogue of works, and Thome complained that he has missed several opportunities to sell the set for that reason.

He also suggested that the foundation may have wanted to decrease the set's value in order to buy it for less.

The trial court granted the foundation's motion to dismiss, and the Manhattan-based First Appellate Division agreed.

Justice David Saxe ruled that the case "turns on whether a duty is owed to plaintiff by any of the defendants that would entitle him to any of the relief he seeks - whether based on the Foundation's nonprofit 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.

"We discern no such duty on defendants' part, and therefore no enforceable right of plaintiff to relief against them."

Saxe added that Thome's demand - that the foundation put the set in its catalogue - was "inappropriate," as such matters are best left to academics and scholars.

"Simply put, determinations of the authenticity of art work are complex and highly subjective assertions of fact," Saxe wrote. "As such, disputes concerning authenticity are particularly ill-suited to resolution by declaratory judgment. The law cannot give an art owner a clear legal right to a declaration of authenticity when such a declaration by definition will not be definitive."

The court rejected Thome's breach of contract and product disparagement claims as untimely, and said the foundation's director and trustees are immune from suit.

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