Canada: Fletcher v. Doig: An Unlikely Case Of Coincidence, Correlation Or Consent

Last Updated: December 13 2016
Article by Andrea Rush

Who has the onus of establishing whether or not a license has been granted? If the license is oral, how is the "applicable law" established and under which jurisdiction? The simplicity with which licenses can be created offers opportunity for mistaken percep- tions of consent, because an agreement need not be in writing. Vigilance is therefore critical for a global brand owner to preserve and maintain identity, exclu- sivity, differentiation even when, or especially when, the brand is a personal name.

Sometimes, this means that a brand owner is forced to seize counterfeit items at the border to prevent entry into a jurisdiction under trademark legislation. Concurrently, an Internet service provider (ISP) may be required to provide notification and/ or require takedown of infringing or disparaging content, by resort to online dispute resolution pro- cedures. As a last resort, there may be no choice but to differentiate oneself from the offensive activities through litigation, whether as a plaintiff or a defen- dant. Litigation is not an attractive last resort. Rarely is it the preferred solution in an international mar- ket, whether a brand is large or small. All the more so when the property is a personal name, and the enforcer, through no desire of their own, is cast into the role of defendant.

This is but one of the important reminders for busi- nesses of all types and sizes about the need to man- age their brands in disciplined and systematic ways in order to protect what they own and sustain their viability. It is also a call for increased awareness of mediation and alternate forms of dispute resolution in an international context. Cost, consistency, cer- tainty, and conclusion in an expedited timeframe are drivers for consideration of mediation as an alterna- tive to litigation when the stakes are highest, as they are undoubtedly within the global market for brands. The reminders, explicit and implicit, can be found, interestingly enough, in a story about the fine art market. The story emerges from a recent court case in the United States concerning a painting, who really made it and, therefore, what its value was, or wasn't. By all media reports the case, Fletcher v. Doig,1 is one of the first of its kind, a case in a US court aris- ing from refutation of "authorship" of a painting that was created in Canada. When an internationally renowned artist, Peter Doig, denied authorship of a painting, he was sued for damages for interfering with the market for a painting which was "his."

At the time of this writing, the decision had been widely reported in Canadian media based on the oral remarks of District Judge Gary Scott Feinerman of Northern Illinois. The written reasons for the decisionhad not yet become available.

Names, Branding, and Reputation Management

To understand the implications of refutation of authorship, it is helpful to understand the commercial value of a good name.

Take the case of an old violin (a work of artistic craftsmanship). Place the violin in the hands of a musician on King Street in Toronto, Sherbrooke Street in Montreal, or 56th Street in Manhattan. Watch the passersby move along with barely a glance or a pause. Listen to the same violinist on the stage of Roy Thomson Hall in Toronto or Lincoln Centre in Manhattan. When program notes identify the lineage of the rare instrument and the name of the celebrity performer, box office sales make the point: Reputation matters.

The visual arts market rises and falls with artist identification (as do other markets in relation to product identity). Depending on whose signature appears on a canvas, the price of a work can rise or fall dramatically. Authorship affects market prices. This is a truism that correlates to production, repro- duction, and licensing of works that are protected by copyright and moral rights. Within the market for content, which is international, reasonable minds may differ, and applicable laws may clash over the approach to valuation. Few would disagree that the identification of authorship is critical.

The Parties and the Story

Well known artist Peter Doig was sued for damages because he denied he had painted a canvas signed "Pete Doige 76." He was believed, first by the market, which sank the sale price, and then by the US trial court, which dismissed the claim for damages on August 23, 2016. An appeal is expected.

Peter Doig was born in Scotland. He went to high school in Ontario, Canada. Over time, his reputa- tion grew. His paintings have sold for millions. Upon learning that a canvas signed Doige was offered for sale as one of his works, he refuted that connection. The effect on the sale price of the canvas was dra- matic and immediate, allegedly dropping by some $7 million.

Pete Doige, the signatory of the disputed canvas, was deceased at the time of trial. He was born in Scotland. He spent some time during his high school years, in Thunder Bay, Canada. Although incarcer- ated in Thunder Bay for possession of LSD, he took art classes and completed a canvas which he sold to his correctional officer. Authorship of this painting is the subject of this litigation.

Fletcher, a co-plaintiff, is a former correctional officer and the alleged owner of the canvas. He pur- chased the disputed painting from Pete Doige who, he alleges, is the very same person as the defendant, Peter Doig. Fletcher claims he has suffered damages because Peter Doig has refuted the assertion that he, Peter Doig, is "Pete Doige." Peter Doig says he never created the painting, never met Fletcher, and never went to prison while in Canada. Fletcher finds motive in Peter Doig's refutation of authorship: A desire to distance himself with the venue of creation and the context of the initial sale.

Fletcher and his co-plaintiff, the gallery that was retained to sell the painting, allege financial harm arising from Peter Doig's refutation of authorship. The co-plaintiffs, Fletcher, and the gallery, dispute Peter Doig's refutation, vigorously maintaining that "Pete Doige" and Peter Doig are one and the same.

Obviously, there is no word to be had from the alleged artist, Pete Doige, who has since died. Similarities in style between the Pete Doige can- vas and the corpus of artwork in circulation by the well-known artist Peter Doig were drawn by experts retained by the co-plaintiffs. Pete Doige's sister filed statements on behalf of the defendant, Peter Doig, rather than on behalf of her late brother, Pete Doige, recalling that her late brother told her of a landscape that he completed while in a Canadian prison.

Peter Doig, whose artwork actually sells for mil- lions, has the resources to mount a solid defense to the claims for damages. More resources could be necessary as reports of an anticipated appeal continue to surface.


The value of a reputation can be analyzed from many perspectives, each of which affects authors (and other producers of other goods), buyers, and sellers. When an artist denies that he has created a work, the dip in market value that follows can be rapid and irreversible. Refutation of authorship highlights the uncertainties that inform and plague artists, creators, valuators, buyers, and sellers of their works.

The art market is taking careful note of the clear linkage between artist identification and value. The impact extends beyond the visual arts market. A personal name can acquire recognition as a brand whether associated with a product or a service, and can be protected as such through the trademark registra- tion infrastructure. This is recognized under existing trademark laws throughout the world. Extraterritorial application is the exception rather than the rule. This means that a court that takes jurisdiction will apply local laws and render a decision of local application. Multiple causes of action may require analysis of dif- ferent laws, which are inconsistent in result. Lack of consistency and certainty of outcome diminish the attractiveness of litigation. Alternative forms of dis- pute resolution, particularly through the mediation process, are surely more attractive.

Reputation is the currency of the artist or any brand owner. Registration, licensing, and enforcement of goodwill through contracts and litigation can be criti- cal strategic elements in brand management. These steps maintain the integrity of the work product, the reputation of the artist as a brand owner, and the stability in the market on which investors depend.

Fletcher v. Doig highlights the nexus between trade- mark rights and moral rights. While an artist or other brand owner may choose to refrain from litigation, a defendant swept involuntarily into litigation may well have overlapping rights on which to rely, depending on the jurisdiction of enforcement. As an involun- tary defendant, Doig was thrust into litigation in the United States for having refuted authorship of a work that he allegedly created in Canada. It was necessary to preserve the global market value of his artwork. For Doig, his name and signature are his brand—in multiple jurisdictions. As an artist, he knows that key components of reputation/brand management are monitoring and enforcement, and that precedents set in one jurisdiction may well affect marketability in another.

Fletcher v. Doig sets a new benchmark for the high stakes in global reputation management. Artists and others have no choice but to preserve the market value of their brands through carefully crafted license agreements. In the world of brand- ing and reputation management, marketing entails monitoring and the preservation of value requires detailed attention to the terms of a license or to the absence of one.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Andrea Rush
Events from this Firm
27 Jan 2018, Seminar, Toronto, Canada

Andrea's panel, 'An Action Plan for Canadian Music', will discuss the impact of digital media like Spotify and YouTube on Canadian music, and how that affects the revenue model and discoverability of recorded music.

26 Feb 2018, Seminar, Toronto, Canada

On February 26th, 2018, John Polyzogopoulos and Lea Nebel will be co-chairing the OBA Civil Litigation Program's Top Appeals of 2017 from the Ontario Court of Appeal.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions