Why art isn’t a commodity, Cady Noland edition

By Felix Salmon
February 13, 2012
Dan Duray had the news on Friday of the latest big-money lawsuit in the New York art world: dealer Marc Jancou is suing Sotheby's and artist Cady Noland for $26 million.

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Dan Duray had the news on Friday of the latest big-money lawsuit in the New York art world: dealer Marc Jancou is suing Sotheby’s and artist Cady Noland for $26 million.

The lawsuit is here, and there’s absolutely no indication whatsoever of where the $26 million number comes from; I suspect it’s just an attempt to make a splash in the press. Jancou had consigned a Noland work to Sotheby’s, which slapped an estimate of $250,000 to $350,000 on it. But then Noland “apparently disavowed the work,” according to Baer Faxt — and as a result, Sotheby’s pulled it from their auction. Jancou’s upset, and is on the legal warpath.

I see no fault of Sotheby’s here — if I were in their shoes, I’d do the exact same thing. Sotheby’s clearly has — or had — a good relationship with Jancou: according to the consignment agreement attached to the complaint, they were charging him zero seller’s commission, and neither were they charging him for things like insurance, catalogue illustration, packing, and shipping, which they normally charge sellers.

But in terms of art-world importance, Cady Noland trumps Marc Jancou — and it’s easy to see why, when her piece Oozewald just sold for $6.6 million. As Daniel Grant explains at some length, so long as an artist is alive, and especially if that artist is producing expensive work, the art world tends to bend over backwards to honor that artist’s wishes.

As a general rule, it’s pretty important, when buying or selling work by a living artist, that the artist be reasonably happy about the deal. If the artist is dead, then you need to be on good terms with the estate. It’s a significant risk, in contemporary art, especially given the fact that artists, by their nature, can be mercurial and temperamental.

All of which is yet another reason why art isn’t a commodity which can simply be bought and sold at a market price. It’s always encrusted in various egos, none more than that of the artist. They might have sold the work, but it’s still theirs, on some level, and that does give them certain rights of authorship. The artist nearly always retains copyright in the work, for instance (which is why you’ll never see images of Richard Prince works from the mid-70s), and increasingly the institution of resale royalties is being enforced, at least in California and the UK.

Marc Jancou has no real excuse: he should have known, before consigning Noland’s work to a very public auction, if she was OK with that. It’s not like he’s some kind of art-world naïf. It’s very unclear what Noland did; Jancou’s suit says only that she “tortiously interfered with the consignment agreement by persuading Sotheby’s to breach the agreement by refusing to put the work up for auction”. Jancou does say — or at least imply — that even after Noland’s complaint there was no doubt as to the authenticity of the work; she doesn’t seem to have denied making it.

But the art world is a fuzzy place, and there can be a big difference between a work made by Cady Noland, on the one hand, and a Cady Noland work, on the other. And Jancou’s being incredibly disingenuous if he’s pretending he didn’t know that.

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