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Calder Ruling Creates New Issues for Art Owners and Insurers (France)

July 2, 2020

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<p style="text-align: justify;">A recent<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2020/07/ruling-from-the-Paris-Court-of-Appeals.pdf">ruling from the Paris Court of Appeals</a> </em>highlights some of the peculiar risks related to purchasing (and insuring) art in international jurisdictions.<span>  </span>The renowned American sculptor Alexander Calder lived and worked for much of his life in Saché, France.<span>  </span>One of his works, the large stabile, <em>Porc qui pique</em>, 1963, was exhibited and photographed such that its creation and appearance are well-documented.<span>  </span>However, at some point the work fell off the map and its location was unknown.</p>
<p style="text-align: justify;">The work appeared to suddenly reemerge when it was sent to the Calder Foundation—a 501(c)(3) non-profit whose mission is “collecting, exhibiting, preserving, and interpreting the art and archives of Alexander Calder”—by of a chain of hoteliers in France named Belambra, who had come to possess the work by unclear means.<span>  </span>Belambra hoped to have the work examined and confirmed against the Foundation’s archives in order to sell it with Artcurial auction house.</p>
<p style="text-align: justify;">However, the Calder Estate had previously registered <em>Porc qui pique</em> with the Foundation as missing from their collection, and the Calder Foundation notified the Estate of the discovery. There was no record from Alexander Calder of a sale or gift to explain its presence at the resort where it was found, though Belambra provided uncorroborated witness testimony it had used a government program to fund the purchase of the stabile. A dispute over the work’s ownership ensued in the French courts between the Calder Estate and the Belambra Hotel Chain, with the Calder Foundation added as a nominal party to the action.</p>
<p style="text-align: justify;">Ultimately, the Tribunal issued an extremely problematic decision, relying on typos in exhibition catalogues for the date of <em>Porc qui pique</em>, simultaneously ruling the work <em>was</em>, as a matter of law, created by Alexander Calder, yet <em>not</em> the work <em>Porc qui pique</em>.<span>  </span>The Court was evidently unmoved by the photographic evidence, including contemporaneous images showing the work labeled as “Porc qui pique,” and witness testimony from two individuals with personal knowledge of the piece.<span>  </span>Instead, the work is now—legally, in France—an untitled work of Calder’s with no historical record of its existence.</p>
<p style="text-align: justify;">Given French law and the additional fact-finding role of judges in France as opposed to the United States, the ruling would have been exceedingly difficult to appeal. So, now in the event Belambra wishes to sell the piece, as they are currently attempting to do with <a href="https://www.artcurial.com/en/lot-alexander-calder-1898-1976-sans-titre-1963-stabile-en-acier-peint-3995-34">Artcurial</a> (https://www.artcurial.com/en/lot-alexander-calder-1898-1976-sans-titre-1963-stabile-en-acier-peint-3995-34), they cannot call it <em>Porc qui pique</em>, because as a matter of law the work is not <em>Porc qui pique</em>, despite virtually all of the historical evidence.<span>  </span>Instead, they must refer to it as an untitled work of entirely mysterious origin, which seems to also be encumbered by an apparent violation of the moral right artists have to name their creations.<span>   </span></p>
<p style="text-align: justify;">From an art insurer’s perspective, in the event of a casualty to the work the question of loss in value is exceedingly complex, and this judgment creates new uncertainty in the identity of works in certain jurisdictions, particularly if they are vulnerable to as common of a mistake as a typo in an exhibition catalogue.<span>  </span>Although the ruling appears to have been designed to quell issues of title to the work, what is the market value of a piece of art constrained by this odd judgment? Moreover, this ruling creates uncertainty as to whether the Estate still retains an interest in <em>Porc qui pique</em>, which this work, according to the Court, is not—particularly in another jurisdiction.</p>
<p style="text-align: justify;">And, for works which would ordinarily be the subject of French law, insurers may wish to consider their policy wording by requiring a different venue, mandatory arbitration, or other language to avoid an unappealable judgment such as the ruling in this case.</p>
<p style="text-align: justify;">Thanks to Monsieur Nicholas Schaefer for his contribution to this post.  Please contact <a href="mailto:vterrasi@wcmlaw.com">Vincent Terrasi</a> with any questions.</p>

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