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The Law and Jackson Pollock

Jackson Pollock (1912-1956) is an icon in the world of art. His bold drip (or pour) paintings are emblematic of the Action Painting school and quintessential Abstract Expressionist works. The following is representative of his most famous work.


Lavendar Mist (Number 1, 1950) ŠPollock-Krasner Foundation

As with Mondrian, with his black grids and primary colored squares, when you first see a Pollock, you believe: "I can do this." Few can with Pollock's or Mondrian's success. A review of case law suggests that some have tried. Before discussing the cases and a recent controversy, a little background on authentication is helpful.

Authentication of a work of art may involve experts of many disciplines. First and foremost is the art historian. Art history is a well established academic discipline that involves the study of Art in its historic and social context. The art historian considers questions of style, material and subject matter in evaluating the authenticity of a work of art. Compounding the task is that many artists, especially in the past, had students or helpers who became artists in their own right with styles similar to the master. Rembrandt is one such artist. Often art historians either disagree on the authenticity of a work of art, or reclassify it as either the work of a student of the master himself. This recently happened (2005) with Rembrandt, when four works previously attributed to students were reattributed to Rembrandt. (Wikipedia - Rembrandt)

Other experts involved in authenticating works include chemists who analyze the pigment, both as to age and constituents, as well as other materials such as canvas and wood, as well as physicists who perform x-ray and other non-destructive analyses.

In the case of Vitale v. Marlborough Gallery, The Pollock-Krasner Foundation et al, 32 U.S.P.Q. 2d 1283, the court was faced with an antitrust claim and other federal and state law claims against the defendants based on the following facts:

In 1969, Joan Vitale, an art dealer, purchased a painting purportedly by Jackson Pollock at an auction in Pennsylvania. The next day she inquired about its potential value at the Parke Bernet Gallery in New York. She was allegedly told that as a Pollock original, the painting would bring between $125,000 and $165,000 at auction, but that she would not be able to sell without obtaining the approval of Lee Krasner, Pollock's widow. She arranged to meet Lee Krasner at the Marlborough Gallery in New York, but was instead asked to leave the painting until the next day. When she returned, she was met by three men, allegedly from the Manhattan District Attorney's office. They took possession of the painting, advising Vitale it was needed in a criminal investigation. Five years passed before she got the painting back. In 1978, the painting was listed in the Pollock Catalogue Raisonne as a forgery. Despite the listing, the plaintiff tried to sell the painting, but was told that without the authentication by the Marlborough Gallery, the Krasner Foundation or the Krasner Committee, the painting could not be sold.

After failing to sell it for more than ten years, Vitale brought suit in 1993. The case was brought on several grounds, including antitrust claims. The court recognized that antitrust was a potentially viable claim, given the distinct nature of the Pollock market. This is an important point for future antitrust claims. It dismissed the claim as time barred. The plaintiff waited too long to sue.

The plaintiff's claim of a Lanham Act violation (15 U.S.C. 1125(a)), premised upon the publication in 1978 of the Catalogue was similarly found to be time barred.

The case is important as it recognizes antitrust violations as grounds for recovery in the case of intentional efforts to control an art market. Unfortunately for the plaintiff, she waited too long.

Another plaintiff suffered a similar fate. In the case of Kramer v. The Pollock-Krasner Foundation et al, 890 Fed Supp 250, which also involved Southeby's and Christies, the court dismissed antitrust claims premised upon an alleged conspiracy to monopolize the auction market.

Another frustrated owner of an alleged Pollock sued for wrongful failure to authenticate a painting supposedly given by Pollock to his teacher Frederick Schwankovsky. Lariviere v Thaw et al, 2000 WL 33965732 (N.Y.Sup.). He accompanied his request to the Pollock-Krasner Authentication Board with an affidavit allegedly by a son of Schwankovsky, that the inscription and signature on the back were authentic (despite the fact that both "Pollock" and "Schwankovsky" were misspelled.) When these facts were exposed, the plaintiff offered another affidavit that the inscription was actually added by James Valliere, Krasner's assistant who was working for Pollock in 1953. It turned out that Valliere never worked for Pollock and was 13 in 1953.

The court saw through the scam, noting: "The defendants have submitted overwhelming proof that every single one of the plaintiff's claims in this case are not only without any merit whatsoever, but constitutes a laughable and clumsy attempt at fraud." It went to hold that the written agreement between the parties was a bar to the action and sanctioned both plaintiff and his counsel.

Not every questioned Pollock involves such blatant fraud. There is currently a controversy in the art world over 32 paintings owned by Alex Matter, the son of close friends of Pollock, Herbert and Mercedes Matter, which surfaced in 2005. According to Alex Matter, the paintings were discovered in a jumble of his parents' belongings. Labels by his father identified them as Pollock's works.

The works have been authenticated by Pollock scholar Ellen G. Landau, Professor of Art History and Art at Case-Western Reserve University (www.pollockmatters.com). An examination commissioned by the Pollock-Krasner Foundation by Professor Richard Taylor of the Physics Department at the University of Oregon casts doubt on the paintings. The technique employed by Professor Taylor examines the fractal patterns of Pollock's poured paintings, and looked for the specific "fractal signature" found in known Pollocks in the newly discovered works. The preliminary conclusion, based on an examination of six of the new works, is that they were not done by Pollock, and that they may have been painted by different hands. Statement from the Pollock-Krasner Foundation.

Given the money and prestige at stake, this is likely to be a dispute that will continue for years to come.

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