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.

7 comments

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This is most definitely not a world I live in.

Posted by Curmudgeon | Report as abusive

“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)”

Because Prince was ripping off other people’s copyrights?

“All of which is yet another reason why art isn’t a commodity which can simply be bought and sold at a market price.”

Then how could it be that there is a market for art in which art is bought and sold at prices largely determined by what buyers are willing to pay?

Posted by Moopheus | Report as abusive

“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….”
This is is contra the artist’s best interest. For example: Some years ago, in a bar in Baltmore, I bought 4 very witty small paintings of doggie images (NOT playing pool or cards) for $50 each. One of the images would make a wonderful Valentine day’s card.

Suppose I had the right to use the image to sell the cards, did so, and made, say, a million dollars with the artist getting nothing but credit for the image.

At least the artist would be known as the creator of a million dollar image, and the very reasonable expectation of MUCH higher prices for subsequent paintings.

But this is not the way of the world. So the artist got his $50 but nothing else, and I get to enjoy the painting, but nothing else.

Posted by HughLoebner | Report as abusive

@HughLoebner – Or you just contact the artist and negotiate a deal to split proceeds. The attempt to make it sound like no further use can occur because an artist retains copyright is disingenuous. If there’s enough information for the artist to benefit by reputation, there’s enough for you to find them.

Alternately, you could buy a work from someone with a moderate reputation, rework the image to be something offensive, yet commercially viable, and completely destroy their reputation. So it kind of works both ways.

“Don’t those silly artists realize they’re just hurting themselves with their copyright!”

Posted by MaxUtil | Report as abusive

Nb: Cady Noland, who is the daughter of the late Color Field painter Kenneth Noland, has withdrawn from the art world and apparently hates the art market. She hasnt made any of this art for years and does not participate in the run-up in value for her works. Strange, but you know those nutty artists.

As for Marc Jancou, well, he’s what you might call a shark. That’s not libellous, is it?

Posted by Quasimodo3000 | Report as abusive

Ps. Its not at all unusual for auction houses to waive all fees and commissions to get property from consignors; the two major firms are very competitive (remember the price fixing scandal of only a decade ago?). In fact, art journalists complain that the auction houses go too far in their inducements to sellers with (confusing) guarantee arrangements.

By the way, its hard to imagine that Jancou has any kind of case – the auction firms have iron-clad “pre-nups”

Posted by Quasimodo3000 | Report as abusive

Hugh, you can contact the artist and either become partners/joint venturers, or negotiate the purchase of the copyright from the artist and take the risk of loss from manufacturing and marketing the cards yourself. A copyright can be bought and sold, but as you say, it does not transfer automatically with the purchase of an original work of art. Even a commissioned work might not transfer the copyright. It’s all negotiable.

Posted by rb6 | Report as abusive