McWarhol Foundation V Joe Public

Art Monthly, December 2010 | Go to article overview

McWarhol Foundation V Joe Public


In November it was announced that two separate but related lawsuits filed by private collectors Joe Simon and Susan Shaer (see Artlaw AM294 and 334) against the all-powerful Andy Warhol Foundation and its subsidiary the Art Authentication Board had been abandoned. Both collectors own an Andy Warhol Self-Portrait from a limited edition of a dozen silkscreens dating from 1964-65. The series was made from an acetate that Warhol gave to Richard Ekstract for a party to celebrate the artist's first video. After the party, Ekstract gave away prints from the edition to some of the guests. In a recent letter to the New York Review of Books in response to a letter from the Foundation's director, Ekstract wrote: 'The Warhol silk-screen self-portraits resulted from a collaboration I undertook with Warhol (who personally gave me the silk-screen separations with instructions for printing), which in turn resulted in the first documented public showing of video art by a recognized artist.' Simon, who claims that his Self-Portrait is from this edition, has twice submitted his 'Warhol' for authentication by the Board, and has twice been denied.

In his statement Simon cited a lack 'financial resources' and the Foundation's threat of punitive countersuits as his reasons for abandoning the case: 'The case is done,' Simon said, 'I can't do it any more.' Simon simply did not have the money or the legal muscle to fight on. For years his New York attorney, Seth Redniss, who also acted for Shaer, worked single-handedly on the case without pay in exchange for a percentage of a prospective settlement, because Simon could not afford to hire additional counsel or to enlist other firms willing to work on contingency. But in the end Redniss was unable to respond to the avalanche of motions filed by lawyers for the Foundation, and so missed the court deadline.

The final straw came when the Foundation's lawyers allegedly emailed Redniss the ominous phrase: 'I hope you have good malpractice insurance.' If true, it suggested that, if it came to it, they would be coming after the lawyer personally. Simon felt that he had no choice but to abandon his suit. And no wonder, since the Foundation had engaged the services of 'super anti-trust attorney' David Boies, described by Fortune magazine as 'corporate America's No. 1 hired gun', whose office corridors are reportedly lined with trophies--framed headlines of his courtroom conquests--including 'The man who are Microsoft!' from Vanity Fair and 'Westy raised the white flag!' from the New York Post, the latter following General William Westmoreland's withdrawal of his libel suit against the 60 Minutes TV programme. It was also Boies's firm that won the $512111 price-fixing case brought against auction houses Sotheby's and Christie's in 2000.

Simon's abandoned case against the Foundation brought to mind another--infamous--example of inequality before the law. In 1990 two environmental activists, Helen Steel, a community gardener, and David Morris, an unemployed postman, were sued by the Big Mac. Their crime, committed four years earlier, was the distribution of leaflets--they were not responsible for their content--entitled, 'What is Wrong with McDonald's?' The so-called McLibel case became the longest in British legal history. The High Court eventually ruled that, despite the fact that some of the defendants' most damaging claims were found to be true, McDonald's had been libelled and the court therefore awarded the corporation--which reportedly spent over 10m [pounds sterling] on the case--60,000 [pounds sterling] in damages. …

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