United States: Making Sense Of The Peter Doig Trial And The Authentication Fallout

Last Updated: August 25 2016
Article by Nicholas M. O'Donnell

As was reported in detail by the New York Times and others earlier this week, artist Peter Doig prevailed in what most agree was the strangest art related trial in many years. In a nutshell, Doig was accused by a former corrections officer from Canada of falsely denying authorship of a painting in the plaintiff's possession, such that (according to the plaintiff), the painting lost all value. The case was, and still is, a real problem for artists for many reasons. Among them is that in a world of fakes and forgeries, a living artist could find him or herself the target of a shakedown. It also spotlights yet another gap in the kind of rights that the Visual Artists Rights Act (VARA) was perhaps intended to protect. Given the vehemence of the opinion finding in Doig's favor, do not be surprised to see a motion for attorney's fees by Doig arguing that the case was brought in bad faith.

This case was worrying for any number of reasons, even given the result. The problems of authenticity and authentication are the hottest issues in art law. Appraisers and authenticators have shied away from even giving opinions for fear of a wave of lawsuits that sought to hold them responsible. As here, those legal theories invariably failed, but not until significant time and expense. A bill supported by the Art Law Committee of the New York City Bar Association (of which I am a member) would address that in part, but it has not yet been passed into law. The Doig case adds artists to the unhappy group of potential defendants where a plaintiff believes there is a windfall.

This is no small thing. Trials and litigation in recent years have involved works that were shamelessly forged. What would stop a person with few enough scruples from injecting a fake work into the market from doing the same and trying to shake an artist down? It is troubling indeed.

Lastly, the dispute highlights yet another VARA quandary. Had Doig acknowledged the painting was his, he would have had the full and indisputable right under VARA to stop the plaintiff or anyone else from selling it as a "Peter Doig" painting under VARA's right of attribution. Moreover, under the doctrine of pre-emption, no state law tort could be brought against him that was at odds with VARA, a federal statute. That clearly creates some strange incentives that are discomfiting.

The Times article by Graham Bowley (I am quoted briefly) summarizes the facts well. The plaintiff, Robert Fletcher, claimed he had met Doig in the 1970s, when (according to Fletcher), Doig was allegedly attending Lakehead University in Thunder Bay, Ontario. Moreover, Fletcher alleged, they met again when Doig was serving a brief sentence for LSD possession at a nearby correctional center. Finally, Fletcher claimed, he helped the artist land a job and bought the painting in question for $100. Three years ago, Fletcher met Peter Bartlow, a Chicago art dealer and tried to sell the painting.

Doig made clear that he denied ever having painted the work, which as a practical matter meant that it could not be sold as such. Further, at the time that Fletcher claimed Doig was an inmate (which Doig denied ever having been), Doig was a high school student. From the Times:

Instead, he and his lawyers said the work in question was painted by another man, Peter Edward Doige, who died in 2012. One of Mr. Doige's sisters produced evidence at trial that her brother was at Lakehead University, and testified that he was an inmate at the correctional center, that he liked to paint and that the signature on the work was his. And a former art teacher at the corrections center recalled watching it being painted by Mr. Doige over at least five weeks between 1976 and 1977.

When Doig persisted in his denial, Fletcher and Barlow sued him for tortious interference with advantageous business relations. That common law tort forbids bad faith interference with the contracts or affairs of another, but the bar is a high one. Not only must the plaintiff prove the existence of the business opportunity, and not only must the defendant have interfered with it, but that interference must also be for an illegitimate purpose and accomplished by illegitimate means. So, for example, even Doig were wrong but he had merely forgotten, it would be a long way from the intentional elements Fletcher would have to have proved.

In the end, it was not close. As the Court stated on the record, as noted by reporters in the courtroom (bold added):

Most narratives in law and life have gaps. Very few narratives are airtight. This is especially true when considering events from 40 years ago, and all the more so when the events are routine quotidian events of daily life. While most narratives have gaps. . . and certainly both narratives have gaps, the evidence conclusively demonstrates that despite some gaps, Peter Marryat Doig absolutely did not paint the disputed work.

Indeed it seems not. The challenge that this case presented was a classic he said-he said case. Fletcher swore that he had personal knowledge of Doig having painted the work. Doig said he had not. Even though Fletcher's story was contradicted by mountains of other evidence, a judge is not supposed to find one piece of evidence more or less credible than others without a trial.

But that is not the only element of the claim. Even if the actual facts of authorship could not be resolved at summary judgment, what about the elements of intent? By all accounts the rationale that Fletcher advanced for Doig's denial was speculative, and the non-moving party is entitled to reasonable inferences at summary judgment, not imaginative ones.

In a written statement after the verdict, Doig said of the three-year trial that "justice prevailed, but it was way too long in coming", according to the BBC. "That a living artist has to defend the authorship of his own work should never have come to pass." Given the strength of the ruling, and the fact that Fletcher had tried to sue Doig's lawyers at the start of the case, one expects that there is enough bad blood that Doig and his team are considering trying to recoup their losses.

So what implications does this case have? Part of the damage is already done. In upholding a legal theory that allowed the plaintiff to get to trial, the case upends what seemed to be an unassailable point, namely, that an artist himself is the final word on authentication.

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Nicholas M. O'Donnell
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