Doig or didn't he? (ctd.)

August 23 2016

Image of Doig or didn't he? (ctd.)

Picture: New York Times

**Breaking!**

3.15pm US central time, Judge Feinerman rules that Doig: 'absolutely did not paint the disputed work'. 

More later.

Update - various outlets report some of the judge's remarks and findings. Here's Artnet News:

“While most narratives have gaps,” Feinerman went on to say, “and certainly both narratives have gaps, the evidence conclusively demonstrates that despite some gaps, Peter Marryat Doig absolutely did not paint the disputed work.”

Feinerman then reviewed all the details of the case, painstakingly going through the evidence and repeatedly stating that Peter Doig and his mother Mary had “testified credibly” about Doig’s whereabouts, employment, education, where they were backed up by more than ample evidence.” Most importantly, the judge stated that Peter Doig “Could not have entered the Thunder Bay Correctional Institute in August and could not have been the author of the painting.”

As for the contradictions between the timeline Doig initially sent to his own gallery, stating that he didn’t go to high school in ’76/’77, Feinerman called this a “hiccup” in the narrative and underlined that this “understandable mistake that does not harm Mr. Doig’s credibility because it was 40 years ago,” citing his own imprecise memories of being a counselor at Camp Ojibwa decades ago. Feinerman took a similar position on Doig’s lack of tax records, pointing out that not many teens even file taxes for part-time employment, much less keep records for decades afterwards.

Saying that glitches in Doig’s statement would have had more significance if it wasn’t for the “unmistakable and unimpeachable evidence” that supported his final timeline, including a letter from the summer of 1977 from Mary Doig to her own mother in Great Britain saying that “Peter phoned from Edmonton.” Reading aloud that “Peter’s hair is long and messy and if you smell his hat, it smells of oil,” Feinerman emphasized how Mary would have had no conceivable motive to invent these details, which corroborated her son’s timeline about where he was when the painting was made.

Turning to the evidence that Peter Doige “almost certainly painted the work,” Judge Feinerman described the deceased man’s sister’s testimony as “the third cherry on top of the sundae.” [...]

The judge ruled against the plaintiffs on both counts, ruling that the painting wasn’t by Doig, and that this “unjustified interference” in the painting’s sale at auction was, in fact, justified. Underlining the fact that Doig’s representatives had threatened suit only if the painting was sold “as a work by Mr. Doig,” Feinerman stated that “An artist is well within his rights to ensure that works he did not create are not sold under his name.”

Doig's lawyer said:

“I have rarely seen such a flagrant example of unethical conduct in the US courts nor a case that inflicted such needless burdens on a defendant,” said Matthew S. Dontzin, the lawyer representing Doig and his gallery, Michael Werner, in an email to artnet News. “Artists should be grateful to Peter for having the ethical and financial fortitude to fight tirelessly to ensure that justice prevailed in today’s verdict.”

Doig said (in the New York Times):

Mr. Doig, who was not in court but called in to hear the ruling, said from Rome by telephone that he felt angry that he had been forced to prove he had not painted the work.

“I feel a living artist should be the one who gets to say yea or nay and not be taken to task and forced to go back 40 years in time. It was painstaking to piece this together,” he said.

This trial must go down as one of the most ridiculous in art history. Frankly, the judge should be ashamed of himself for allowing it to go ahead. Nothing in his verdict can come remotely as a surprise to anyone who spent even half a day reading the details of the case. A week long trial was not necessary, and a waste of Doig's and the court's time. It was blindingly obvious that this painting was not by Doig, and that those who claimed it was had no evidence whatsoever that he had painted it. They presented merely supposition and conspiracy to the court. At best, the plaintiff's case was one of mistaken identity - this picture was surely painted by the late Peter Doige. But Judge Feinerman fell for it. Perhaps he enjoyed the publicity. The case will stand as a model for how attributions should not be decided in court.

It is also an uncomfortable example of how the US legal system permits legal harassment and bullying. Doig should never have had to go to the lengths he did to prove he did not paint this picture. Having to rely on dragging your mother to court, and the fortunate survival of letters from the 1970s (to prove he wasn't in jail) placed an unjustified burden of proof on Doig. What if those letters had not survived, or his mother had passed away? The court gave every indication that it was not enough for Doig to simply say he did not paint the painting - he had to prove he did not. But how do you prove a negative?

The conclusion in the press and amongst commentators is that this case gives comfort to artists, and allows them to say that they did or did not create works. In fact, it does not do that; as far as I can see, there is no precedent set in this case where the judge has said, 'an artist has the right to say they did or did not create a work'. On the contrary, Judge Feinerman has made a point of going through all the evidence about who was where when, specifically to see if Doig was correct in saying he did not paint the picture. In that sense, the case simply demonstrates that any old chancer with access to a lawyer and a US court can create distress and financial loss to an artist for having the temerity to give an opinion on a work of art.

Worse still, the case presents an even greater dilemma for experts in antique paintings. In Doig's case, we had an artist in the dock saying 'I didn't paint that' - and still that wasn't enough to persuade the judge. So what do we do for a Rembrandt, who is very dead?

Say you're an expert on Rembrandt in the US, and a dealer sends you a painting they say is by Rembrandt, and which might have been valued as such, for appraisal. If you think it is not by Rembrandt, are you now going to feel able to say so? Might you be worried about being sued for 'interfering in the sale' of the painting, and be harassed for damages? You'd be right to be worried, for the Doig case shows that even the most groundless claim on attribution can now be dragged through the courts at great expense over years. This daft case could yet have a worrying effect on art history.

Update II - the Art Market Monitor directs me towards this Art Law Blog, by Donn Zaretsky, who writes:

[...] I don't think artists should be especially heartened by the decision.  The case still stands as a warning that an artist who disclaims authorship of a work -- even on facts as ridiculous as these -- faces the possibility of thousands of hours of wasted working time and stress and hundreds of thousands of dollars in legal fees. 

Update III - Marion Maneker of the AMM tells me on Twitter that under the 1990 US Visual Artists Rights Act, an artist has the right to say a work they created is no longer their work. But in this case, because the painting was not by Doig, or might not be, the Act afforded Doig no protection. Which of course is baffling. Marion also tells us that Judge Feinerman said in his summary:

An artist is well within his rights to ensure that art he did not create is not sold under his name.

Which begs the question of why Judge Feinerman felt compelled to hear this case in the first place?

I hope Doig seeks and gets full costs from the plaintiffs.

Update IV - a reader writes:

In regards to Update III of your recent Doig post [...] the 1990 US Visual Artists Rights Act. 17 U.S. Code § 106A reads:

Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art— (1) shall have the right— . . . (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

In fact, I believe it would have been under this law that Doig would have been able to sue Fletcher and Bartlow if they had tried to go forward with the sale.

Clearly, in this case, Doig was not afforded the protection the act would appear to afford. Either that, or the judge did not pay sufficient heed to it.

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