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.

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 Mondaq.com.

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

Authors
Nicholas M. O'Donnell
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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