Wade Clark Mulcahy LLP

Robert Indiana’s <a href="http://pdf.wcmlaw.com/pdf/loveimage.pdf">“LOVE” sculpture</a> is very well known.  It is displayed in parks and museums throughout the world, and its image has been reproduced on postage stamps and the like.

Over the years, Indiana entered into a series of production agreements with John Gilbert, including a 2007 deal for the creation and production of a sculpture in Hindi script of the word love, which in Hindi, is “Prem.”  Three versions of the sculpture were depicted in the contact, and contract also included “derivate works” of those three versions.  The contract did not contain, however, any provision for a version with the English letters P,R,E and M, which a partner of Gilbert later designed.

Gilbert claims that he showed an English Prem version to Indiana, and that Indiana approved the design.  He also alleged that Indiana signed  -- on a blank space on a page, and not the signature line -- a certificate of authenticity to accompany the sale of such a version.  However, Indiana later disputed that he approved the design, calling it a “monstrosity.” Further, within a few days of signing the certificate, he denied that he was the creator of that piece.  Gilbert then filed suit, with the causes of action sounding in breach of contract, as he wanted to be able to sell the English Prem version as an authentic Indiana design.

Indiana eventually moved for summary judgment.  The <a href="http://pdf.wcmlaw.com/pdf/indiana.pdf">Court found</a> that there was no dispute about the fact that the English Prem version was not included in terms of the contract.  The Court also found that the Hindi version was completely different than the English version, could not be a derivative work, and therefore did not fit within the contract’s definition of  “Licensed Works.”

The Court also rejected claims that Indiana’s actions modified the Contract, particularly because the contract had a “merger clause” that provided “The Agreement contains the entire understanding between the parties.”   Neither an oral approval of the design or a signature of the Certificate of Authenticity, even if not in dispute, would serve to modify the written agreement.

The Court therefore dismissed the complaint -- and thus the sculptures cannot be considered authentic Indiana works.

If you would like more information about this post, please write to Mike Bono at mbono@wcmlaw.com

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