Fletcher v. Doig: A case of refuted authorship and a role for alternative dispute resolution
By Andrea Rush, Partner, Blaney McMurtry LLP, Toronto, Canada
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.
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 of the canvas was dramatic and immediate – it allegedly dropped by some USD 7 million.
Pete Doige, the signatory of the disputed canvas, was deceased at the time of trial. He was born in Scotland. He spent some time during his high school years in Thunder Bay, Canada. While incarcerated in Thunder Bay for possession of LSD, he took art classes and completed a canvas which he sold to his correctional officer. Authorship of this painting is the subject of the litigation.
Fletcher, a co-plaintiff, is a former correctional officer and the alleged owner of the canvas. He purchased the disputed painting from Pete Doige, who, he alleges, is the very same person as the defendant, Peter Doig. Fletcher claims he has suffered damages because Peter Doig has refuted the assertion that he, Peter Doig, is “Pete Doige”. Peter Doig says he never created the painting, never met Fletcher, and never went to prison while in Canada. Fletcher finds motive in Peter Doig’s refutation of authorship: a desire to distance himself from the venue of creation and the context of the initial sale.
Both Fletcher and his co-plaintiff, the gallery that was retained to sell the painting, allege financial harm arising from Peter Doig’s refutation of authorship. The co-plaintiffs, Fletcher and the gallery, dispute Peter Doig’s refutation, vigorously maintaining that “Pete Doige” and Peter Doig are one and the same.
Obviously, there is no word to be had from the alleged artist, Pete Doige, who has since died. Similarities in style between the Pete Doige canvas and the corpus of artwork in circulation by the well-known artist Peter Doig were drawn by experts retained by the co-plaintiffs. Pete Doige’s sister filed statements on behalf of the defendant, Peter Doig, recalling that her late brother told her of a landscape that he completed while in a Canadian prison.
Peter Doig, whose artwork sells for millions, had the resources to mount a solid defense to the claims for damages. More resources could be necessary as reports of an anticipated appeal continue to surface. He clearly has an ongoing interest in defending his reputation and perceptions surrounding the quality of his work. But in resolving such unusual and unforeseen problems, is litigation the best option?
Protecting what you own
As the owners of international brands know well, vigilance is critical to sustaining and enhancing global identity, exclusivity, differentiation and, ultimately, dominance, and the long-term profitability that goes along with them. Businesses of all types and sizes need to manage their reputation and their brands in disciplined and systematic ways to protect what they own and sustain their viability.
Sometimes, this means seizing counterfeit items at the border to prevent entry into a jurisdiction. Sometimes it means writing to an Internet service provider to provide notification and/or require takedown of infringing or disparaging content. Other times, it may mean differentiating oneself from offensive activities through litigation, whether as a plaintiff or a defendant – or, preferably, to find alternative forms of dispute resolution. Litigation is rarely the preferred solution in an international market, regardless of whether the economic implications of a dispute are large or small.
The case for alternative dispute resolution
Individuals or companies that face litigation in international markets must contend with a complex legal landscape associated with variations in national laws. For example, in some common law jurisdictions the right of personality/publicity may establish a cause of action whereas in other civil law jurisdictions no such right may even exist. In some jurisdictions multiple forms of protection may be available – under laws of trademarks, passing off, unjust enrichment and misleading advertising – whereas in others prerequisites to asserting such claims (such as the need to prove use of a trademark) may impede access to justice by reference to such torts.
Alternative forms of dispute resolution (ADR), such as arbitration and mediation, make it possible to circumvent these complexities and the time and costs associated with handling them. Cost, consistency, certainty and expeditious conclusion are all reasons for considering mediation as an alternative to litigation when the stakes are highest, as undoubtedly they are within the global market for brands. ADR is a quick and simple route to resolve a dispute.
The WIPO Arbitration and Mediation Center offers a range
of ADR services tailored to specific services, including for disputes arising in the area of art and cultural heritage, without the need for court litigation.
Art and cultural heritage disputes can relate to various specific areas of subject matter including copyright, traditional cultural expressions and cultural property. Parties in such disputes are often from different jurisdictions and cultural backgrounds.
As a flexible and confidential mechanism, ADR allows consideration of such issues and helps parties to adopt sustainable, interest-based solutions that may go beyond monetary relief (e.g., compensatory provision of artworks, long-term loans, co-ownership). ADR allows parties to choose a mediator, arbitrator or expert with specific expertise in art and cultural heritage and understanding of the relevant cultural background(s). It provides a neutral forum in which an international art and cultural heritage dispute can be resolved through a single procedure.
Further information is available at: www.wipo.int/amc/en/center/specific-sectors/art.
High stakes in global reputation management
The value of a reputation can be analyzed from many perspectives, each of which affects authors (and producers of other goods), buyers and sellers. When an artist denies that he or she has created a work, the dip in market value that follows can be rapid and irreversible. Refutation of authorship highlights the uncertainties that inform and plague artists, creators, valuators, buyers and sellers of their works.
The art market takes careful note of the clear link between artist identification and value. The implications of this extend well beyond the visual arts market. A personal name can acquire recognition as a brand – whether associated with a product or a service – and can be protected as such through trademark registration, as recognized in trademark laws around the world. Extraterritorial application of these laws, however, is the exception rather than the rule. This means that a court which takes jurisdiction will apply local laws and render a decision of local application. As such, legal actions in multiple jurisdictions are likely to require analysis of different laws which are inconsistent in result. Lack of consistency and certainty of outcome diminish the attractiveness of litigation and make alternative forms of dispute resolution, such as mediation more appealing.
Reputation is the currency of the artist and, indeed, all brand owners. The reputation of an artist supersedes any one work or dispute, and the damage to his or her reputation is potentially unbounded. As observed in Shakespeare’s Julius Caesar, “the evil that men do is remembered after their deaths, but the good is often buried with them.”
Registration, licensing and enforcement of goodwill through contracts and litigation can be critical strategic elements in brand management. These steps maintain the integrity of the work product, the reputation of the artist as a brand owner and the stability in the market on which investors depend.
The costs of litigation may seem daunting. While an artist or other brand owner may choose to refrain from litigation, a defendant swept involuntarily into litigation over authentication loses the choice whether to participate. As an involuntary defendant, Doig was thrust into litigation for having refuted authorship. It was necessary to preserve the market value of his artwork. For Doig, his name and signature are his brand. As an artist, he knows that key components of reputation/brand management are monitoring and enforcement.
Fletcher v. Doig sets a new benchmark for the high stakes in global reputation management. Artists and others have no choice but to preserve the market value of their brands. In the world of branding and reputation management, marketing entails monitoring and the preservation of value requires enforcement.
The old adage “use it or lose it” is as true as ever in the global market.
Andrea Rush, a partner in Blaney McMurtry’s corporate/commercial practice group, is certified by the Law Society of Upper Canada as a specialist in copyright and trademark law. She is also a registered patent and trademark agent in Ontario and Quebec. Ms Rush, who has been recognized by Chambers Canada, which identifies and ranks the most outstanding law firms and lawyers inthe country, represents Canadian and global rights owners and users in the registration, commercialization and enforcement of their brands. She may be reached directly at 416-593-2951 or email@example.com.
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