(CN) – A federal judge in Manhattan allowed an art collector to pursue an antitrust class action against the Andy Warhol Foundation and the board that authenticates the late artist’s paintings.
Filmmaker Joe Simon-Whelan and a class of art buyers claimed in a 2007 lawsuit that the foundation and the Andy Warhol Art Authentication Board collaborated in a “20-year scheme” to control the market for Warhol paintings. Simon-Whelan said the defendants rejected the authenticity of Warhol works to create scarcity in the market and artificially inflate the value of Warhol paintings owned by the foundation.
He claimed that most auction houses and galleries won’t buy Warhol paintings without the board’s stamp of approval.
“When faced with the choice of buying artwork from an outside dealer or the Warhol Foundation, museums and galleries often opt for the latter as protection against reversals of judgment by the Authentication Board,” the complaint states.
The plaintiff said the board has refused to authenticate works that the foundation previously tried, unsuccessfully, to buy.
Specifically, Simon-Whelan challenged the board’s refusal to authenticate a relatively little-known Warhol self-portrait Simon-Whelan bought in 1989 for $150,000.
The Warhol estate determined that the painting was a real Warhol, but the board later declared it a fake on two occasions, according to the lawsuit.
But Simon-Whelan said the executor of Warhol’s estate even placed a “hand-written legend” on the canvas overlap that states, “I certify that this is an original painting by Andy Warhol completed by him in 1964.”
The 24-by-20-inch silk-screen portrait was untitled at the time of its creation, but has since been given the name “Double Denied” by its owner.
Simon-Whelan claimed that Vincent Fremont, the official sales agent for Warhol’s estate, fraudulently induced him to resubmit the painting after it was rejected in 2001. The plaintiff spent more than a year documenting the painting’s origin and history. He said several art dealers and Warhol acquaintances have certified the painting as an original. The plaintiff resubmitted it with additional documents, only to have the board again deny his request.
As a result, he was allegedly forced to sell his Warhol’s through third parties at a fraction of the price.
U.S. District Judge Laura Taylor Swain said the plaintiff had “plausibly” asserted his claims that the board is controlled by the foundation, and that the foundation uses the board to remove competing Warhols from the market.
The judge denied the defendants’ claim that Simon-Whelan lacks standing to assert antitrust claims because “he has not suffered injury.”
“Plaintiff’s allegation that the double-stamping of ‘Denied’ on his artwork in furtherance of the alleged antitrust conspiracy has prevented him from competing as a seller in the lucrative market for authentic Warhol’s is sufficient to frame an antitrust injury,” she wrote.
Warhol’s 1963 painting “Green Car Crash” sold for $71.7 million at a 2007 auction, more than quadrupling the previous top auction price for a painting by the “Pope of Pop,” when his portrait “Mao” sold for $17.4 million.