[author: Zach Dai*]

The assumption that artists love credit is challenged when an artist appears to repudiate their authorship. Sometimes repudiation arises from personal animus while in other instances an artist might feel that their work is no longer “up to snuff.”[1] In some extreme circumstances, artists can be involuntarily thrust into a claim to repudiate their alleged authorship, which happened in the case of Fletcher v. Doig. [2]

This lengthy legal dispute centered on the authentication issue of a desert landscape painting signed “Pete Doige ‘76’”. The painting was created in 1976 by an inmate at Thunder Bay Correctional Center (TBCC), the prison in Ontario, Canada where Robert Fletcher worked. Fletcher later purchased it from the inmate for $100. In 2011, a friend noticed the signature on the painting and told Fletcher that it was probably created by a renowned artist named Peter Doig given the similarity of their names. Fletcher subsequently contacted Bartlow Gallery in Chicago in the hope that the gallery could sell the painting on his behalf. Fletcher and Bartlow contacted Doig through multiple channels, but Doig persistently denied having made the painting or having been incarcerated in the TBCC. Eventually, in April 2013, Fletcher and Bartlow initiated a lawsuit against Doig, his assistant, and his attorney as well as Doig’s law firm for a declaratory judgment to authenticate that the work was in fact created by Doig.

Two months later, Doig’s attorney responded with evidence from police records to the painter-inmate’s correspondence during the incarceration period to disprove Fletcher’s case. He claimed, based on such evidence, that the allegations in the complaints were frivolous and should be withdrawn. In 2013, the defendants further provided the plaintiffs with a declaration made by a woman named Marilyn Doige Bovard who had a brother named Pete Doige incarcerated at the TBCC in the 1970s. Before his death in 2012, he had been a painter. Bovard even “asserted that the desert scene [the painting] depicted resembled an area in Arizona where he and Doige’s mother had lived after divorcing their father.” However, despite Fletcher’s limited favorable evidence and inability to overcome the defendants’ evidence, the plaintiffs pressed on with the case. In 2016, Chicago judge Gary Feinerman ruled that Doig “absolutely did not paint” the disputed work.

But that was not the end of the story. After the court’s ruling, Doig’s attorney moved for sanctions against the plaintiffs and their lawyer. The legal basis was Rule 11 of the Federal Rules of Civil Procedure, which prohibits the filing of frivolous claims. Rule 11 requires parties and attorneys to make a reasonable inquiry into the facts before commencing litigation; it also emphasizes the duty of continuing candor by subjecting litigants to potential sanctions for insisting upon a position after it becomes untenable. While the court agreed that plaintiffs and their lawyers could have investigated further before filing the suit, it did not say that they initiated the suit without an objectively reasonable basis. However, the court found that shortly after filing suit, the plaintiffs and their lawyers should have begun to have substantial doubt about their claims. The court further found that by May 7, 2014, when the plaintiffs’ lawyer confirmed they had no evidence to undermine Bovard’s account or otherwise overcome the defendants’ evidence, it should have become “indisputably clear” to the plaintiffs and their lawyer that “their claims stood no chance of success,” that, in fact, “the claims were factually meritless”, and that “to continue the litigation past that point was frivolous, as the complaint’s central allegations had completely unraveled under the weight of contrary evidence.”

Finally, at the end of 2022, the court held for Doig and decided that the plaintiffs and their lawyer were jointly and severally liable for the sanctions of $2.5 million, which was calculated based on the legal fees and expenses Doig incurred to defend against this frivolous claim. This case is significant not only owing to the monetary compensation given to the defendants but because it protects artists from unfair lawsuits. It creates a disincentive to potential plaintiffs like Fletcher and makes artists less vulnerable to having to defend themselves against anyone who wants to misattribute a painting to them.

Another legal tool available for defendants like Doig is the Visual Artists Rights Act of 1990 (VARA). VARA grants visual artists the rights of attribution, which include preventing the artist’s name from being attached to work not created by the artist. However, VARA has an inherent limitation on its applicability in terms of time. It typically does not protect a work of art created before June 1, 1990. In Doig’s case, since the painting was created in 1976, VARA clearly did not apply. There is one exception to this general rule where work created before June 1990 can be protected. The exception is that the artist can deny the authorship of his pre-June 1990 artworks which he still has the title to but were modified on or after June 1990 in a way that damages his honor or reputation. But clearly, Doig’s situation is different since he did not create the painting from the beginning. In addition, the Copyright Act contains a fee-shifting rule for any copyright infringement case which affords the court the discretion to award a reasonable attorney’s fee to the prevailing party. Since the rights of attribution are part of copyright bundle as VARA was incorporated into the Copyright Act, had Doige created the painting after June 1990 and Doig used VARA to prove his case in this misattribution case, Doig still could have won a similar amount of damages.

It is clear from the above that artists should be able to express their opinions about the authenticity of their works without fear of being sued—and, if they are sued, without having to mount an expensive defense that includes a full-blown trial. However, the common law presented an extremely limited exception to that rule. As a consensus in the art industry, the work becomes unmerchantable and unsalable when a living artist repudiates it as a forgery or a fake. In Arnold Herstand & Co., Inc. v. Gertrude Stein, Inc.[3], the court ruled against Balthus, the artist, who repudiated some of his authentic works to punish his former wife who possessed his work and had a disagreement with him.

Although now we have laws protecting artists’ attribution rights, unsolved issues remain. Thinking about Doig’s case, one wonders what if the judge had found that the painting was created by Peter Doig and signed with his name, but he wished to erase his signature just to cover his incarceration period (i.e., a bona fide repudiation)? If he did, what legal remedies would have been available for Fletcher and Bartlow? Ultimately, this case highlights how much is at stake in authenticity dispute.

FOOTNOTES

[1] Art Experts Weigh In on Doig Authentication Case | artnet News

[2] Fletcher v. Doig, No. 13 C 3270, 2022 WL 18027447, at *1 (N.D. Ill. Dec. 30, 2022)

[3] 211 A.D.2d 77, 83, 626 N.Y.S.2d 74, 78 (1995)

* Zach Dai is an intern in the firm’s Century City office