Sotheby’s cannot be found liable for breach of contract for canceling the auction for a print on aluminum by the artist Cady Noland, a Manhattan Supreme Court justice has determined. Sotheby’s withdrew the four-by-six-foot print of “Cowboys Milking” from auction on Nov. 10, 2011, after Noland found that the work had been damaged and she disclaimed authorship of it under the Visual Artists Rights Act (NYLJ, April 9).
Justice Ellen Coin ruled that under its consignment agreement with the gallery Marc Jancou Fine Art Ltd., Sotheby’s had the right to pull from sale any item for which it had doubts as to attribution in its “sole judgment.” “Given Noland’s assertion of her right under VARA to prevent the use of her name in connection with plaintiff’s print, there was more than ‘doubt’ as to attribution, and Sotheby’s was within its rights to withdraw the print from the auction in the circumstances here,” Coin wrote in Marc Jancou Fine Art v. Sotheby’s, 65031/2012. She ruled that Noland, who also was named as a defendant in the action, was within her rights to remove her work from sale under the act. A conservator’s report on the painting established that the work “bore permanent damage that could not be fully repaired.” The damage was chiefly around the four corners, where the aluminum had been bent and unsuccessfully straightened out, according to Coin’s ruling.
