The Keith Haring Foundation has won a motion to dismiss claims made against it for violation of antitrust and state laws.
The foundation was accused of “defamation and tortious interference with prospective business relationships” by nine owners of Haring’s work. The complaint was filed by Elizabeth Bilinski and the other owners of 111 works that the foundation did not rule were authentic.
Denise Cote, judge at the United States District Court, Southern District of New York, ruled in the foundation’s favour. Judge Cote said: “The complaint essentially claims that the foundation continues to act as informal market regulator by threatening or initiating pretextual lawsuits to preclude authentic Haring works from being exhibited or sold.”
The owners had not been given a reason as to why their works were rejected by the Keith Haring Foundation. All the pieces in the case had been bought from Angelo Moreno, a close personal friend of the artist. Delta Cortez, another acquaintance of the artist, was also involved in several of the sales, acting on Moreno’s behalf.
Bilinski argued that the foundation was trying to limit the number of Haring’s work to increase the value of the works it owns. They also felt that the foundation had ostracized the owners of the works, preventing them from selling or exhibiting the pieces because of the foundation’s close relationships with auction houses and dealers. Other accusations included defamation, conspiracy to defame, intentional infliction of economic harm and trade libel.
The foundation was set up in 1989 the year before Keith Haring died. It supports not-for-profit organisations and charities that work with education, research and care for AIDS. Its collection of Haring art works was valued at $25 million in 2011. The foundation sells works to earn an income and is also responsible for any issues of copyright. Between 2008 and 2011 the foundation sold a number of works for $4.6 million. In May 2014 two Haring works sold for $9.46 million at Sotheby’s.
Until 2012 the foundation also formally operated an authentication committee for Keith Haring’s work. Most auction houses require a certificate of authentication – or at least expressed approval -from the foundation to sell Haring’s works. His work has be sold privately at lower prices without the foundation’s approval.
The foundation rules works are not authenticate
In March 2007 Lucas Schoormans, an art dealer, submitted 13 of Bilinski’s Haring works to the foundation for authentication. In May 2007 he submitted 28 more. He sent transparencies of the works as well as letters of provenance. The foundation responded by rejecting the works as ‘not authentic’.
In its response the foundation stated that their decision could be subject to change: “by reason of circumstances arising or discovered”. Bilinski went away and gathered more evidence of authentication for the works, including a signed statement of intent from Angelo Moreno explaining how the works had originally come into his possession.
In February 2008 the foundation accused Bilinski of trying to sell the works whilst representing them as original Haring pieces when she had been: “Duly warned they are not.” Bilinski tried to address this issue by contacting the foundation. The foundation did not respond.
In 2010 Bilinski again tried to sell her works. She contacted Sotheby’s where a representative said that he believed that the works were original. However, he said they would not be able to sell the works without a certificate of authenticity from the foundation. She also took the works to the Gagosian gallery where once again they were unable to offer the works for sale.
Bilinski once again tried to resubmit the works to the foundation for authentication. Seven months later, the foundation responded saying that they would not reconsider their original judgement of the pieces and the verdict that they were inauthentic.
In 2012 Bilinski tried again. Eventually Guernsey’s, a New York auction house, agreed to sell her works without approval from the foundation. Bilinski commissioned forensic analysis of two of the works which confirmed that the works were created during the period in which Haring was working.
Several other owners that had failed to get approval from the foundation agreed for their works to be displayed in a Miami exhibition. The foundation filed a complaint against the exhibition, citing that the works within it were “fakes, forgeries, counterfeits and/or infringements.” One owner Arthur Canario lost the sale of his artwork to a London museum because of this compalint.
Bilinski and the other owners decided to sue the foundation.
In their law suit they accused the foundation of breaking antitrust laws by restraint of trade and monopolisation. They also accused the foundation of breaking the Lanham Act, which covers Trademarks, and breaking state laws covering privilege; defamation and conspiracy to defame; tortious interference with business relationship; trade libel, Intentional infliction of economic harm and unjust enrichment.
Simon-Whelan and the Andy Warhol Foundation
The main claim was that the foundation was a: “standard setting organization that has abused its authority.”
The owners said that they judge should consider the Simon-Whelan case in 2009 which saw an alleged conspiracy between the Andy Warhol Foundation and the Andy Warhol Authentication Board.
In this case the Warhol Foundation published a catalogue raisonné of the artist’s work and had control over the board and which works were authenticated allowing them to exercise complete control over the authentication of his works and manipulating this in the market for Warhol’s work. The judge dismissed this comparison on the grounds that no catalogue raisonné exists for Haring’s work so the cases “dissimilar.”
All of the instances brought forward where the foundation affected the sale or exhibition of the works were countered, with the defence arguing that all the issues raised with the foundation could be explained by reasoning and that there was not sufficient legal evidence to uphold the accusations made against the foundation. The judge ruled that auction houses and galleries choosing not to sell works that were potentially inauthentic was a judgement “consistent with lawful, independent action.”
All complaints made against the foundation were dismissed in their entirety. Judge Cote also highlighted that this case was separate to the foundations motion for sanctions against Bilinski and the other owners.
Nicholas O’Donnell of the Art Law Report said that: “the high-stakes nature of contemporary art assures that it will not be the last.”