Andy Warhol And The Litigious Culture Of A Top Foundation

Andy Warhol

On 26 June 2013 the Andy Warhol Foundation issued a press release stating that it had ‘concluded a settlement with its insurer, Philadelphia Indemnity Insurance Company’. Since this time Artlyst has had responses from a number of industry insiders who argue that this case is anything but fully resolved. 

(Read Warhol Foundation press release here) 

The press release was very likely issued as a proactive response to pressure created by the many articles that have appeared over the last few weeks criticising the Foundation’s handling of legal costs (and incurred by the Directors of the Trust). We hope the funds will be now be used for good causes, as stated in the release. — Artlyst 26 June 2013 [Not sure why Artlyst and the date are mentioned here; delete it?]

The Foundation’s press release did not explain the need for the use of 16 powerful legal firms for what they described as a ‘bogus case’. On 26 May 2009, Judge Laura Swain denied the Warhol Foundation’s motion to dismiss the Joe Simon case, and ruled that the claims of fraud and unjust enrichment should go forward. Her ruling would suggest that the Federal court did not find the suits ‘bogus’, so this statement from the Warhol Foundation is untrue and undermines the opinion of the US Federal court.

Another question raised is: Why would the Foundation hire Michael Straus as a new Chairman, mid-trial? Mr Straus is one of the top US anti-trust lawyers. From the outside it looks clear that he was made Chairman in order to make sure that two ordinary citizens (not professional art dealers) did not win this case, in order to prevent further cases from arising. Susan Shear, who earns her income helping those with low-income housing, genuinely believed in righting the wrong in her case. The other, Joe Simon, a filmmaker and art connoisseur (and not an art professional), had an equal mission in mind. Neither would spend years fighting something ‘bogus’. To the general public, The Warhol Foundation and especially the teams of lawyers that they hired have come off looking like a bunch of heavy-handed bullies, who instead of graciously admitting that they may have been wrong, in the case of the Red Portrait, as experts have attested, made sure, in the most vindictive, yet clear way, that this work of art by Andy Warhol, chosen for the cover of his catalogue raisonné in his lifetime, was demoted from original artwork to souvenir.

Meanwhile the saga of the Red Self-Portraits carries on. There were ten of this series created, most of which were given to executives of Noreleco or associated with them. The tenth went from Warhol’s collection to Bruno Bishofsberger, Margo Levin, Heiner Bastian, Antony d’ Offay, Tate Modern and Charles Schwab, all experts who had direct dealings with the artist when he was alive. ‘As an art lover, I can’t bear to see this sort of behaviour, but just like Goldman Sachs, I simply cannot believe that people are that easily gullible’, stated a well-known collector, who wishes to remain anonymous.

This mess has been a PR disaster for both the Warhol Authentication Board, now dissolved, and the Warhol Foundation itself. It will now take many years and top-level board resignations to restore confidence and credibility to this institution.

Statement by Joe Simon regarding the settlement:

It is with great regret that I have had to end my lawsuit against the Andy Warhol Foundation. I simply do not have the funds or resources available to fight an organization, which has acknowledged it is currently spending up to $450,000 per month to defend the case. I have now spent eight and a half years fastidiously gathering scholarly evidence to support my painting, and still firmly stand by all the facts regarding the Red Self-Portraits. I am deeply saddened that I was unable to reveal the truth in court, but when faced with threats of bankruptcy, continuing personal attacks and counterclaims, I realized I no longer stood a chance of proceeding further.

There was I believe virtually no limit to the amount of money the Foundation was willing to spend to ensure that this case would never come to trial. When my legal representation asked to withdraw from the litigation due to the enormous workload created by mountains of extraneous motions continuously filed by the Foundation’s legal team, I was forced to accept the reality of my position.

In addition, lawyers for the Foundation bullied, threatened, and smeared many who supported my lawsuit, including my own lawyer, a sole practitioner, who was so was concerned about his own assets that he had to resort to hiring his own legal team to represent him in court.

I wish it had been possible to continue alone, but clearly this was absolutely not practical, so I had no other choice but to sign a document bringing the case to a close. I wish to stress, however, that I have not agreed to deny the authenticity of the Red Self-Portrait, as originally demanded by the Foundation.

I firmly believe that the Warhol Foundation should not be able to continually get away with suppressing scholarly debate about important Warhol works.

The investigation I began has not been brought to a conclusion but no doubt many others who feel passionately about this injustice will continue to campaign to fight for a truthful resolution.

I have no doubt whatsoever that in time this series of Red Self-Portraits will be seen by art historians as a turning point in the way Warhol thought about his art in the mid 1960s.

I would like to personally thank the many art historians, museum directors, artists, and those who actually worked alongside Warhol in the factory at the time when these works were created. These people have had the courage to speak out—sometimes at great personal and financial sacrifice—against the authentication board’s calculated distortion of art history. The lawsuit may be over, but I shall continue to work outside of the court system to prove what many so strongly believe.

I ask those curators and scholars who supported me in private but who were unable to speak out while the case was ongoing now to come forward.

Decision by the Judge for the Joe Simon- Susan Shaer case to move forward;

This week’s settlement of the insurance case does not address the matter of the Warhol Foundation’s refusal to answer questions regarding the authentication and sales of works previously seized from offsite factories as fake paintings with bad signatures. Many collectors would like to know who they were sold to and if the paintings were given the correct provenance. Statements made regarding the 10 November 2010 settlement may be found on artnet, ironically in an article which contains a misguided attempt by the foundation to discredit the integrity of a well respected journalist:

At the time of press, The New York Review of Books piece merely published current information, that of May 15. It was announced by the judge that the case was heading to trial, and the parties had only reached a settlement before it went to court yet again. Therefore, the paper was correct in their report.

What has happened in the six weeks between those days is staggering. One would think that according to a simple D and O insurance policy, the simple fact that Vincent Fremont gave his opinion to an art gallery regarding the Red Self-Portraits would be enough to negate the insurance. It should also be quite clear in their policy agreement, that the Warhol Foundation should seek permission from the insurance company, before moving forward and hiring expensive expert witnesses and numerous ‘top end’ legal firms.

As Joe Simon said in his statement issued after the settlement, he had no choice but to settle. He added that he believed in the principle behind case. Reviewing the documents, I believe that Simon and Shaer were correct but had little choice in the face of such stealth legal might.

They did not refute all claims in court, only those pertaining to the anti-trust aspects. These were withdrawn five days after the trial in a public statement published in artnet and The Art Newspaper.

Edited By Paul Carter Robinson © Artlyst 2013

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