What is the essence of a Sol LeWitt wall drawing? What makes these works – which famously exist as a series of instructions, executable by anyone who owns them – authentic LeWitts and not just some lines on a wall? What distinguishes a few marks on a wall from an authentic artwork?

Many such questions have recently headlined media coverage of a lawsuit filed in May 2012 at New York State’s Supreme Court. The case concerns LeWitt’s Wall Drawing #448, 1985, for a private residence in Massachusetts or, more particularly, the document signed by LeWitt with written instructions for drawing the mural and attesting that the resulting work would be LeWitt’s original: his authenticity certificate.
A typical LeWitt certificate is headed as follows: ‘This is to certify that the Sol LeWitt wall drawing number … evidenced by this certificate is authentic.’ It then specifies any lines, shapes, forms, configurations, colours, and the place and date of first ‘installation’. After which it states: ‘This certification is the signature for the wall drawing and must accompany the wall drawing if it is sold or otherwise transferred.’ Finally, it is signed and dated.
The recent claimant is Roderic Steinkamp, a collector and dealer; the defendant is the Rhona Hoffman Gallery, which specialises in ‘international contemporary art in all media, and art that is conceptually, formally, or socio-politically based’. Steinkamp owns LeWitt’s Wall Drawing #448 and authenticity certificate, which he consigned to the gallery in 2008 via a signed contract in which the gallery agreed to be liable for ‘all loss, damage or deterioration’. In 2011 the gallery notified Steinkamp that the certificate had become ‘lost and irretrievable’. The gallery claimed for the loss on its insurance policy but the insurers declined to pay, hence the lawsuit.
Steinkamp claims that ‘The original certificate, issued and signed by the artist who is now deceased, is a unique and irreplaceable document that cannot be generated anew or replaced. There is no substitute for the original certificate entrusted to the care, custody, and control of the defendants … Since the wall drawings do not constitute freestanding, portable works of art like a framed canvas or a sculpture on a podium, documentation of the work is key to transmitting it or selling it to a collector or institution … The original certificate is required for the sale of the wall drawing.’ He seeks damages of at least $350,000 for each of four alleged breaches of contract, bailment, negligence and conversion.
These four claims raise challenging artlaw issues. All are interrelated and are based on the same set of circumstances: the existence of the certificate and its physical consignment to, and unexplained disappearance from, the gallery. The contract claim is likely to rely upon the gallery’s acceptance of legal liability for ‘all loss, damage or deterioration’ in the signed consignment contract. The bailment claim deals with the high duty of care placed by law upon those who are entrusted with physical possession of others’ property, and is likely to be further or alternative to the contract claim; likewise the negligence claim. The conversion claim is also likely to be further or alternative, and is the civil law equivalent to the crime of theft (but without having to prove any dishonesty); in other words, appropriating another’s property and using it as if one’s own. Should any of these claims succeed, the claimant would then be required to satisfy the court that he has suffered quantifiable financial loss – and that is where market and cultural values would become key issues.
The general public often take market and cultural values to be the same – the higher the purchase price, the greater the work’s artistic status – and express their own opinions accordingly along the lines of ‘I wouldn’t pay, or why has the tax-payers’ money been paid, for something I don’t like/can’t understand/see as a con’. A formative lesson learned by pupil-advocates is ‘First, know your tribunal’. In artlaw trials it is sensible for advocates to assume that the judge/court has only general public knowledge of art and the art-business world, and will need sound evidence and good argument to gain a better understanding before giving final judgment.
Art-world professionals recognise that market and cultural values are separate and distinct, though interrelated and interdependent. The sole criterion for establishing market value is not the estimated or asking price, but what has already been paid. The market relies strongly on sales’ prices achieved at public auctions and salerooms (even though private sales represent a substantial chunk of the market). The cultural or canonistic value of artists and their works is far more complex: art-world consensual recognition emerges through a combination of relevant discourses and institutional collection decisions – and of market performance. Van Gogh inevitably springs to mind as an artist whose works received little or no cultural or market value during his lifetime, yet decades after his death both were achieved – and are interrelated. Some artists achieve great canonistic value and comparatively less market value; and vice versa.
Does objective and robust evidence exist about LeWitt’s works in the market, which art lawyers might use to satisfy a court on the key question of financial damage resulting from the authenticity certificate’s loss? Records show that LeWitt originated 1,259 wall drawings between 1968 and his death in 2007. Auction prices can range from $35,250 for Wall Drawing #767, 1994, sold at Christie’s New York in 2001 to $254,500 for Wall Drawing #41, 1970, sold at Phillips de Pury New York in 2009. Such sales were of physical works with their authenticity certificates. There appears to be no evidence of sales without such certificates, nor of sales of certificates alone – and therein lies the art lawyer’s greatest challenge: whether Steinkamp’s advocate needs to satisfy the court that a LeWitt certificate is an intrinsic element of the market value of the wall drawing it authenticates.
Perhaps this challenge could be reframed: whether the absence of a companion authenticity certificate devalues or renders unsellable a LeWitt wall drawing. Dealers and auction houses require the artist’s signature – albeit in a separate document – as they do for sales of traditional paintings and drawings, and there is no established market of collectors buying LeWitt certificates without the related wall drawing.
A key aspect of the lawsuit is Steinkamp’s claim that the lost certificate cannot be replaced. In the US, the moral right of paternity (the exclusive legal right to claim or deny authorship) only operates during artists’ lives (unlike most other countries where it lasts for decades after death – see AM355&356). Accordingly, there is no exclusive legal authority in the US to replace (or newly issue) LeWitt’s authenticity certificates. In which case the market will apply whatever criteria it wishes, from resale to resale, to determine value; as ever.
Steinkamp’s lawsuit is addressed to a specialist and knowledgeable defendant gallery which may be expected to be conversant with the nature and significance of LeWitt’s work. The gallery may decide to tackle the potentially more complex task of overturning the rejection of its insurance claim, which occurred perhaps because the insurer had less understanding of the metaphysical and legal significance of LeWitt’s certificates.
© Henry Lydiate 2012

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.