Abandonment Issues

Proof of intent is key in establishing the owner of left-behind art.

Although we’d like to think that our clients would be totally lost without us, we have found that many can actually teach us a thing or two. A case in point is Ernest, who inadvertently gave us a crash course in the law of abandoned art.

Over a two-year period, Ernest retained us to retrieve several works by his grandfather Oscar, a well-known Irish artist with a careless streak. Fortunately, Ernest had hired an excellent investigator to locate the lost pieces.

When Ernest first retained us, we knew that, as a legal matter, abandonment is defined as the intentional relinquishment of all title and claim to, as well as possession of, property. What we didn’t know is how difficult proving it can be. The person trying to assert ownership (usually the one who has found the property) bears the burden of showing that there was an actual intent to abandon by some affirmative act or omission, such as transfer of title. That turned out to be good news for our client.

According to the investigator’s report in our first case, Ernest’s grandfather had tossed an unfinished drawing in a Dumpster. The sketch was retrieved by a “picker,” who sold it to a dealer, who was now trying to sell it in his gallery as a completed work by Oscar.

Ernest asked if the attempted sale of an unfinished drawing violated the Visual Artists Rights Act (VARA), which gives a creator “the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.”

This reminded us of the 2007 lawsuit brought by Robert Rauschenberg against another artist, Robert Fontaine, and HW Gallery, of Naples, Florida, for allegedly trying to sell pictures that Rauschenberg had signed but in 1998 had thrown in the trash outside his home on Captiva Island. Fontaine reportedly admitted taking the works from the garbage, and Rauschenberg argued that in trying to offer the pieces as if they were completed and authorized, the defendants had violated his rights under VARA. Because such rights last only for the life of the artist, Rauschenberg’s lawsuit was dismissed following his death, in 2008. Similarly, we determined that VARA wouldn’t apply in our case, since Oscar was now dead.

Instead, we referred to a 1982 lawsuit involving a somewhat similar situation, in which Frank Stella sued the dealer Stephen Mazoh for allegedly trying to sell two water- damaged paintings from Stella’s “concentric circles” period that the artist had discarded on the landing outside his studio. The parties settled the case, with Mazoh returning the works and Stella destroying them. We proposed a similar resolution in our first case, and the dealer agreed to return the drawing to Ernest in exchange for a nominal sum.

The second missing work was a painting titled “Picture of Dorian,” which Oscar had apparently left in a restaurant coatroom some years past following a long night of revelry. The restaurant’s owner, Gwendolen, was now refusing to return it, even though Ernest still had his grandfather’s original coatroom check for the work.

We told Gwendolen that the painting had doubtless been left in the coatroom on the understanding that it would be returned. In legal terms, this was a classic “bailment” — that is, the placing of property in the custody and control of another. At the termination of a bailment, the bailee, here Gwendolen, was under an absolute obligation to deliver the property or be liable for an unlawful taking. Gwendolen, however, insisted that Oscar had told her he didn’t want the work.

Ernest thought that with the coatroom claim check in hand we would win a quick victory in court. We weren’t so sure, because the facts surrounding the bailment were in dispute. We advised Ernest that since a determination of abandonment hinges on intent, he might face a costly and time-consuming trial with an uncertain outcome. With this in mind, he settled out of court with Gwendolen, again paying a relatively small sum for the painting.

Our client contacted us a few months later about retrieving yet another work, a sculpture that Oscar had made for a nearby hospital. Ernest’s investigator had determined that during a remodeling job, workers had temporarily placed the sculpture on the sidewalk, where it was found and carted off by a man named Algernon.

Ernest was tempted to try to buy the sculpture from Algernon. However, given the lack of evidence of intent to abandon the piece on the part of the hospital, which had, in fact, apparently diligently searched for it, we doubted that Algernon had title to the work.

The 1992 federal case Hoelzer v. the City of Stamford, Connecticut, involved a similar set of facts. During the course of renovations in 1970, Stamford High School removed and stored six murals on canvas that the Works Progress Administration had commissioned from the artist James Daugherty in 1934. The paintings were later inadvertently placed with construction debris, where they became wet and torn. A graduating student rescued them and eventually contacted the government, which had them delivered to the art restorer Hiram Hoelzer but didn’t pay for his work nor make any attempt to collect the murals. The increasingly frustrated Hoelzer finally sued to “quiet title” — that is, obtain undisputed legal ownership of the paintings, which had been appraised in the interim by Sotheby’s at $1.25 million — on the grounds that they had been “knowingly trashed” by the city. The court, however, held for Stamford, finding no evidence that it had intended to abandon the murals, and instead suggested that Hoelzer could pursue claims for equitable compensation for storing and restoring them.

In our case, the hospital itself recovered the sculpture from Algernon and not surprisingly refused to sell it to Ernest. This time there was little we could do to help.

Last summer Ernest’s investigator turned up a fourth work by Oscar — a painting he had lent to a New York museum more than 40 years ago for an indefinite period. There was seemingly no supporting written documentation, but Ernest clearly remembered Oscar’s referring to the painting as a loan.

We contacted the museum’s counsel and relayed Ernest’s request to terminate the loan. Its lawyer’s response surprised us: She said that the museum — which had made no effort over the years to contact Oscar’s family — believed that it was entitled to keep the painting forever.

The museum’s position was not without legal basis. Its attorney cited a New York State law enacted in 2008 that provides procedures for museums to acquire title to abandoned art. Such “stale loan” legislation exists or is pending in at least 16 states to afford museums a fair mechanism to resolve the ownership of undocumented property. We did not believe, however, that the painting in question fell under the New York law, which covers property that has been in the possession of a museum for a minimum of 10 years and for which it is unable to determine the lender, donor, or owner after making a good faith search. This was clearly not the case here, and the museum came to the same conclusion, since it eventually returned the painting to Ernest. In the end, perhaps the biggest lesson we learned is the importance of being diligent — if not earnest — when retrieving “abandoned” art.

Charles and Thomas Danziger are the lead partners in the New York firm Danziger, Danziger & Muro, LLP specializing in art law.

Some facts have been altered for reasons of client confidentiality or, in some cases, created out of whole cloth. Nothing in this article is intended to provide specific legal advice. “Abandonment Issues” originally appeared in the December 2010 issue of Art+Auction.