On August 23, 2016, Judge Gary Feinerman of the Northern District of Illinois ruled in Fletcher v. Doig in favor of artist Peter Marryat Doig, finding that Doig did not create a painting owned by plaintiff Robert Fletcher.1

Plaintiffs, Fletcher and his gallerist Peter Bartlow, filed suit against Doig in 2013, claiming that Doig tortiously interfered with their attempted sale of an abstract desert landscape painting (“Desert Landscape”) and seeking $7.9 million damages, plus costs and a declaratory judgment that Doig created Desert Landscape. Doig maintained that he was not the creator of Desert Landscape. Doig had to expend significant resources defending himself against Plaintiffs’ claims, and ultimately uncovered the actual creator of Desert Landscape. Before the seven-day bench trial, Judge Feinerman denied Doig’s motion to dismiss for lack of personal jurisdiction and for forum non conveniens, denied Doig’s summary judgment motion, and denied Doig’s motion in limine to exclude plaintiffs’ expert witnesses. After the bench trial, Judge Feinerman orally delivered his decision, in which he concluded that any similarities between Desert Landscape and Doig’s authentic paintings were “purely coincidental.”

The case raises the obvious question: why isn’t an artist’s assertion that he has not created a work enough?

Creator: Doige vs. Doig

Plaintiff Fletcher, a former corrections officer at Thunder Bay Correctional Center in Thunder Bay, Ontario, bought Desert Landscape in 1976 for $100. Plaintiffs claimed that Fletcher met Peter Doig in the 1970s, first at Lakehead University in Ontario and subsequently at Thunder Bay. Plaintiffs asserted that Fletcher was friendly with Doig while Doig spent five months at Thunder Bay for LSD possession, and that they remained in contact while Doig was on parole. During this time, plaintiffs claimed, Fletcher encouraged Doig’s art career and bought Desert Landscape. When Fletcher and Bartlow attempted to sell that work more than thirty-five years later, however, Doig, whose Swamped (1990) sold for $25.9 million at Christie’s New York in May 2015, denied that the painting was his creation. Doig asserted that he was never at Thunder Bay, he never met Fletcher, and he did not paint Desert Landscape.

Plaintiffs argued that Doig was either confused or lying. They pointed to supposedly uncanny similarities between Desert Landscape and other paintings from Doig’s oeuvre, the fact that Doig was in Canada in the 1970s, and Doig’s public admissions that he took LSD.

Doig argued that the dispute was a matter of mistaken identity. In moving for summary judgment, he pointed out that Desert Landscape was signed “’76, Pete Doige” – not his name – with a signature different from his own. He also presented evidence of the deceased amateur painter Peter Edward Doige, who lived in Ontario in the 1970s, was enrolled at Lakehead University (at the same time as Doig), spent time at Thunder Bay Correctional Center, and took art classes while serving his sentence. Additionally, Doig’s legal team provided school records, yearbook photos and a list of thirty witnesses who could attest to the fact that Doig was not at Thunder Bay in 1976. Despite this evidence, Judge Feinerman denied summary judgment.

Expert: Bartlow vs. Schiff

At trial, plaintiff Bartlow’s expert testimony was the primary evidence introduced by plaintiffs to establish a link between Desert Landscape and Doig’s style. Bartlow was not familiar with Doig’s artwork before Fletcher contacted him to sell Desert Landscape, but he subsequently devised a method for comparing that painting to Doig’s acknowledged paintings (which Doig’s counsel dubbed the “Bartlow Method”), concluding that Desert Landscape contains patterns that Doig repeatedly uses. At trial, Bartlow superimposed a transparency of known Doig paintings over an image of Desert Landscape and then rotated the transparency to reveal shapes or lines with approximately matching form and placement. During cross-examination, however, Doig’s counsel demonstrated that this method could also be used to match Desert Landscape to paintings by Leonardo da Vinci and René Magritte.

Richard Shiff, an art historian at the University of Texas, provided expert testimony on behalf of Doig. Shiff, who presented himself as a connoisseur of Doig’s work, said that the Bartlow Method was “entirely unreliable” and questioned Bartlow’s objectivity in light of his economic interest in the sale of Desert Landscape.”2 Shiff based his opinion that Doige (not Doig) painted Desert Landscape on a conversation with Doige’s sister and on his examination of other paintings by Doige.

Questioning the Court’s Qualifications as Authenticator

Generally, artwork authentication is clear-cut if the artist is alive, because the artist’s statement is sufficient. Most authentication disputes arise because the artist is deceased, or because a living artist disclaims the work as his or her own due to deterioration or damage. This case was different because the court took into its own hands the question of whether a living artist who disclaimed a work had created that work in the first place. The University of Glasgow’s Donna Yates discusses this “uncharted territory” of authentication for Apollo Magazine here. Yates, like many others, expressed shock that this lawsuit wasn’t “instantly dismissed as frivolous,” called the case “absurd” and was “relieved” that Doig won. Doig stated that this case could set a “dangerous precedent” where “[t]he final authority for authentication of a work of art would no longer be the surviving artist himself, but a judge or jurors who are at best nominally familiar with the classification of works of art or artistic practice.”

Artists have a right to disclaim authorship of “any work of visual art which he or she did not create” under the federal Visual Artists Rights Act (“VARA”), called their right of attribution. VARA also gives artists a right of integrity, i.e., the ability to disclaim authorship of a work of visual art if that work has been distorted, mutilated or otherwise modified in a way that is prejudicial to his or her honor or reputation.

Yet there is a rationale that could justify a trial under some circumstances, despite a living artist’s disavowal of a work. In New York, the Appellate Division, First Department, looked to the possible bad-faith motivations of an artist for disclaiming a work in finding that the artist could have been its creator, despite his claim otherwise. In a case involving the Polish-French artist Balthus, the New York court found it possible that apparent “personal animus against his former wife” could explain the artist’s false disavowal, and reversed and remanded a trial court’s ruling that both a preparatory sketch and a well-known oil painting were not by the artist.3 The First Department noted that defendant’s expert had suggested that Balthus had repudiated other works in the past “to punish former lovers or dealers with which he has had disagreements.”4

Here, there was no basis to question the artist’s good faith: Doig had no relationship with plaintiffs and did not stand to gain in any way by rejecting the work.

While the Doig case may be an outlier, it also may affect the ability of other living artists to authenticate their own work definitively, without risk of liability and not subject to the second-guessing by judges and juries. In addition, it may indirectly strengthen the hand of art authenticators – who have been subject to legal threats and claims in recent years to such an extent that several foundations have ceased offering authentication services altogether. The travesty that unfolded before Judge Feinerman could be the catalyst needed to push through a bill introduced in the New York State Legislature to protect art experts from frivolous lawsuits by permitting a court to shift onto a losing plaintiff the attorney’s fees incurred by the art authenticator in defending his or her opinion. (That bill was blocked in the last session of the New York State Assembly because of general opposition to fee-shifting provisions.)

Katharine Haydock assisted with drafting this post.

1. 13-cv-03270 (N.D. Ill.).
2. Bartlow was to receive a 25% commission on that sale.
3. Arnold Herstand & Co. v. Gallery: Gertrude Stein, Inc., 211 A.D.2d 77, 83 (1995).
4. Id.