Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Art gallery alleges restraint of trade by foundation’s refusal to confirm art work’s authenticity, (Mar 6, 2014)

By Linda O’Brien, J.D., LL.M.

A charitable foundation established to catalog the works of a late renowned American artist wrongfully engaged in a restraint of trade by refusing to issue an inventory number in relation to a sculpture owned by a foreign art gallery, thereby rendering the sculpture unmarketable in violation of the Sherman Act, according to a complaint filed in the federal district court of New York City (Cramer v. The Calder Foundation, filed February 28, 2014).

Alexander Calder was prominent American artist known for his sculptures and origination of the mobile kinetic sculpture comprised of suspended components which move in response to motor power or air currents. The Calder Foundation is a nonprofit corporation with the stated charitable purpose of cataloguing all of the works created by Alexander Calder and making the works available to the public to facilitate art education and research. The Foundation provides private information regarding authenticity to owners of Calder works upon request and inventory numbers for those works deemed to be authentic. Since his death, the market for Calder’s works is thriving and his sculptures and mobiles typically sell for millions of dollars.

The complaint states that, in 1948, Gerald Cramer, proprietor of the Cramer Art Gallery in Switzerland, purchased the “Eight Black Leaves” sculpture directly from Calder. The sculpture was displayed at the Gallery and included in the Gallery catalogue, which was given to Calder immediately after its publication in 1950. In 2012, the heirs of Gerald Cramer decided to sell the sculpture and contacted an auction gallery, which informally agreed to sell the work subject to the issuance of an inventory number by the Calder Foundation. The Foundation acknowledged that “Eight Black Leaves” was the work of Calder and rightfully owned by Cramer. However, the Foundation indicated that the sculpture was a fragment of a larger work and therefore not deserving of an inventory number. The denial of the request for the issuance of an inventory number has rendered the sculpture unmarketable, the complaint alleged.

There is a clear conflict between the Foundation’s self-serving protection of its own collection of Calder works and its duty to the public to act impartially in connection with cataloguing all works by Calder, according to the complaint. The Foundation’s assertion that it has documented “Eight Black Leaves” as a fragment of a larger work is without any evidentiary support. Cramer has obtained an opinion from a renowned expert in copyright and legal art matters, who determined that “Eight Black Leaves” is a sui generis work and not a dissembled element of a composite work. Additionally, there is no dispute that Calder never objected to the inclusion of the sculpture in the Cramer Gallery catalog, questioned its authenticity, or asked Cramer to return the work.

Cramer asserts claims for product disparagement, fraudulent inducement, and violations of Section 2 of the Sherman Act and the New York Donnelly Act. The action seeks declaratory and injunctive relief, compensatory damages, costs of suit, attorneys’ fees, and any other just and proper relief.

The case is No. 1:14-cv-01375-RMB.

Attorneys: Michael A. Lacker and Adam J. Rader (Eaton & Van Winkle LLP) for Patrick Cramer

Companies: The Calder Foundation

News: Antitrust NewYorkNews