Fletcher v. Doig: A case of refuted authorship and a role for alternative dispute resolution

Author:Andrea Rush
Position:Partner, Blaney McMurtry LLP, Toronto, Canada
SUMMARY

An unusual story from the fine art market offers both explicit and implicit reminders of the critical importance of exercising vigilance in protecting global product identity. The story emerges from a recent United States court case concerning a painting, who really created it and therefore what its value was – or was not.

 
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A case of refuted authorship

By all media reports Fletcher v. Doig is one of the first of its kind, a case in a U.S. court arising 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 time of writing, the decision had been widely reported in Canadian and other media based on the oral remarks of District Judge Gary Scott Feinerman of Northern Illinois. The written reasons for the decision had not yet become available.

The value of a good name

To understand the implications of refutation of authorship, one needs to understand the commercial value of a good name.

Take an old violin, a work of artistic craftsmanship, and place it in the hands of an anonymous 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 the Roy Thomson Hall in Toronto or the Lincoln Center in Manhattan. When the program identifies 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 vary dramatically. Authorship affects market prices. This is a truism that correlates with the production, reproduction 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 how to value that content. But few would disagree that 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 reputation 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...

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