A federal judge in Manhattan has refused to order a shotgun marriage between a renowned artist who developed the iconic “LOVE” sculpture—the one with the letter “O” slanted at an angle and with LO sitting atop VE—and an imitation of his 1964 creation that he detests.
Southern District Judge Katherine Forrest (See Profile) said in Tovar v. Indiana, 12-cv-6104, that a “great artist” cannot be compelled to embrace “several pieces of poor art” produced by a “lesser artist” to benefit an art dealer who is stuck with sculptures the ‘great’ one has renounced.
In Forrest’s opinion, Robert Indiana is the “great” artist and the plaintiff in this case, Joao Tovar of Monaco, is the unfortunate dealer who owns several pieces by a “lesser” artist that he cannot market as Indiana’s artworks and are therefore of minimal value.
The dispute stems from a design Indiana created for a Christmas card nearly a half century ago, and a much more recent arrangement between Indiana and John Gilbert, an associate in India who had under a licensing agreement produced items such as tapestries with Indiana’s “love” icon.
According to court papers, Indiana in 2007 authorized Gilbert to produce the LOVE sculpture in Hindi script and using the Hindi word for “love,” which is “prem.”
But the market for the Hindi version was limited and Gilbert had a partner in Germany create an English version, also using the word “prem” but in Latin letters rather than Hindi script. Indiana thought little of the imitation and compared its design to that of a refrigerator, records show.
Tovar bought 10 English prem sculptures from Gilbert for $481,625, sold several of them for about $710,000 to third-parties, who in turn resold the artworks for more than $1 million, according to the decision.
In 2009, Indiana made clear that the English prem was not his work and that he had not licensed it, rendering the sculptures that Tovar had purchased “worth little more than the materials from which they were made,” according to the complaint.
Gilbert and Tovar separately sued Indiana.
At issue was whether Indiana had previously endorsed the English prem.
Records indicate that there is a picture of Indiana embracing the English prem and a signed “certificate of authenticity” in which the artist purportedly approved its creation and production. Indiana contends he signed the certificate as a souvenir with no intention of endorsing the English prem.
As in the Gilbert ruling nearly a year ago, Forrest said in the Tovar case that the court would not perpetuate a fraud by forcing Indiana to endorse a creation not of his making. She also noted that Tovar has already taken a profit of nearly $230,000 from selling English prems and, consequently, is hard-pressed to claim that he has been damaged.
“It rings of hypocrisy to claim victimhood due to both a fraud being perpetrated upon you and your ability to perpetrate that fraud yourself,” Forrest wrote.
Tovar argued that he is a third-party beneficiary to the contract in which Indiana gave Gilbert the right to produce Hindi prems, reasoning that neither Gilbert nor Indiana could benefit from their agreement without a middleman like him. Forrest rejected the theory as “absurd.”
“The great artist [Indiana] had no connections with the dealer [Tovar], contractual or otherwise,” Forrest wrote. “Nor did the great artist ever lie to the dealer about anything, or indeed make any lie that affected the dealer in any way.”
Indiana was represented by Gary Sesser, a litigation partner at Carter Ledyard & Milburn.
“On a personal level, we are pleased that we were able to get it dismissed without putting [Indiana] through the stress and expense of discovery and possibly a trial,” Sesser said. “He is in his mid-80s and, as Judge Forrest recognized, he didn’t do anything wrong. In addition, an artist shouldn’t be compelled to acknowledge authorship of a work he doesn’t like.”
Mark Moody of Copake, Columbia County, argued for Tovar.
Moody said the photograph of Indiana embracing the English prem and the signed certificate of authenticity raise questions of fact that should have kept the claim alive.
“I think the decision is dead wrong,” Moody said. “In my view, when you have a photograph of the ‘great artist’ with his hand draped around prem purchased by Tovar and you have a certificate of authenticity from this same ‘great artist,’ at the very least that creates an issue of fact as to whether the sculpture was authored, approved or attributable to Robert Indiana. I don’t think there is any escaping that conclusion.”
@|John Caher can be contacted at email@example.com.