Boulé v. Hutton
| Decision Date | 12 October 1999 |
| Docket Number | No. 97 Civ. 144(MGC).,97 Civ. 144(MGC). |
| Citation | 70 F.Supp.2d 378 |
| Court | U.S. District Court — Southern District of New York |
| Parties | René BOULÉ and Claude Boulé, Plaintiffs, v. Ingrid HUTTON, Leonard Hutton Galleries, Inc., Mark Khidekel and Regina Khidekel, Defendants. |
Rosenman & Colin LLP, New York City by Gerald A. Rosenberg, Stacey B. Creem, for Plaintiffs.
Pollet & Felleman, LLP, New York City by George P. Felleman, Elizabeth Koltun, for Defendants.
This action arises from a dispute over the authenticity of certain paintings attributed to Lazar Khidekel, a Russian avant-garde artist who died in 1986. René and Claude Boulé are Parisian art collectors who own more than 150 Khidekel paintings. Claude is an art historian and René a retired dentist. The Boulés wish to sell a substantial number of the Khidekels in their collection. The defendants are Mark and Regina Khidekel, a son and daughter-in-law of the artist who are now permanent residents of New York, and the New York City art dealer and her gallery through which Mark and Regina are offering for sale the collection of Khidekel paintings that they inherited. The Boulés sue under the Lanham Act for promotion of the Khidekel paintings for sale at the Hutton Galleries by false disparagement of the authenticity of the Boulés' collection of Khidekel paintings. The complaint also asserts pendent state law claims including injury to business reputation, disparagement of goods and defamation.
Defendants have moved for summary judgment on plaintiffs' Lanham Act claim. They argue (1) that plaintiffs do not have standing to sue under the Lanham Act, because they are not commercial parties and because they are not engaged in United States commerce, and (2) that the statements sued upon either were not made "in commercial advertising or promotion" or were not "representations of fact" within the meaning of the Lanham Act. For the reasons that follow, defendants' motion is granted in part and denied in part.
Plaintiffs René and Claude Boulé are citizens and residents of France. Claude is an art historian and has published a book on Russian Constructivism, Le Construvisme Russe: Typographies & Photo-montages (Flammarion 1991). (Pl.Ex. H.) Defendants Mark and Regina Khidekel are Russian citizens who have resided in New York since 1993. Defendant Ingrid Hutton is a United States citizen and a resident of New York. Hutton is a partner in defendant Leonard Hutton Galleries ("Hutton Galleries"), which is located in New York City. (Def.Ex. G.8.)
Hutton Galleries specializes in Russian avant-garde art and German expressionism, and also carries early 20th century paintings of French and Italian artists. (Def.Ex. G.9.) There are only a handful of galleries in Europe and the United States that specialize in the Russian avant-garde. (Pl.Ex. O (Moch Dep.) 10, 17; Pl.Ex. P (Flak Dep.) 17-18.) Edith Flak, who manages a gallery in Paris, testified that "in the United States [Ingrid Hutton's] gallery is considered to be a sort of flagship gallery" in Russian avant-garde art, and Yvette Moch, who formerly managed an art gallery in Paris, testified that Hutton Galleries is a "very important gallery" for the Russian avant-garde. (Pl.Ex. P (Flak Dep.) 17; Pl.Ex. O (Moch Dep.) 17.)
From 1984 to 1986, René and Claude Boulé purchased 176 paintings attributed to Lazar Khidekel from a Russian art dealer whom the parties refer to as "Volodia." (Def. Ex. D (Claude Dep.) 49, 55, 88.) "Volodia" did not disclose the provenance of the paintings he sold to the Boulés,1 and the Boulés did not consult with any third parties to confirm the works' authenticity at the time of the purchases. (Id. 92-93.) In 1991, the Boulés purchased an oil painting attributed to Lazar Khidekel at a Sotheby's auction in London. (Pl.Ex. I (Claude Dep.) 108, 111.)
The Boulés had friendly relations with Mark and Regina Khidekel from 1988 to 1991. The Boulés have produced certificates purportedly signed by Mark in June 1991 authenticating certain Khidekels owned by the Boulés. (Compl. Ex. C; Pl.Ex. I (Claude Dep.) 222-25.) According to the Boulés' testimony, they paid Mark a fee of 40,000 francs for the 16 certificates of authenticity that he signed. (Id.; René Aff. ¶ 31.) Mark denies having signed the certificates. (Mark Dep. 155-57.) Certificates of authenticity facilitate sales of artwork to third parties. (Pl.Ex. P (Flak Dep.) 24-26.)
Plaintiffs' Lanham Act claim is bottomed on the following statements in approximate chronological order.
At an international art fair in Paris in October 1994, Yvette Moch, a retired art gallery manager who is still involved in the art world, approached Ingrid Hutton in order to show her the catalogue of the Tanlay exhibition for which Moch had been the curator. In particular, Moch wanted to show her a reproduction of a painting by Popova. (Moch Dep. 26-27.) According to Moch, Hutton saw a Khidekel while she was flipping through the catalogue and said, "that is no good." (Id. at 27.) Moch understood Hutton to be referring to the authenticity of the work, which came from the Boulés' collection. (Id. at 28.) Moch never repeated Hutton's comment to anyone except the Boulés. (Id. at 32-33.)
Plaintiffs submit an affirmation of Slava Kogan, an art dealer who is a United States citizen residing in France, and who "[f]or many years [has] purchased works in the former Soviet Union and sold [them] in the West." (Kogan Aff. ¶ 3.) Kogan states that when he was in New York in late 1995 he "stopped by" the Hutton Galleries. (Id. ¶ 5.) At that time, he:
(Id. ¶¶ 5, 6.)
Plaintiffs allege that Hutton made similar statements to Antoine Blanchette, who had curated a Canadian exhibition which had included Khidekels from the Boulés' collection. (Pl. 56.1 ¶ 71.) The evidence supporting this allegation is an article from a Canadian newspaper which quoted Hutton as saying, However, the article also reported that Blanchette said that he "could not remember Hutton dismissing the Khidekels he presented as fakes." (Def.Ex. K.) In their Rule 56.1 Statement, plaintiffs also allege that Hutton made similar statements to Gilles Gheerbrant and Patricia Railing, a British art scholar. (Pl. 56.1 ¶ 71.) However, plaintiffs proffer no admissible evidence of these statements.2
In a catalogue accompanying the Hutton Galleries' February and March 1995 show of Khidekels owned by Mark and Regina, Ingrid Hutton wrote: "[W]e present for the first time anywhere the work of Lazar Markovich Khidekel." (Pl.Ex. G.) (emphasis added.) The Boulés object to this statement because a 1992 show at Quebec's Musée d'art de Joliette had featured Khidekels owned by the Boulés. Hutton also wrote that neither "[Khidekel] [n]or his family ever [sold] or part[ed] with any of his works." (Id.) These statements appeared in the second paragraph of the section of the catalogue entitled "ABOUT THIS EXHIBITION by Ingrid Hutton."
In January 1996, Mark, Regina and Hutton sent a letter under the letterhead of Hutton Galleries to at least 25 museums in the United States, Europe and possibly Australia which had exhibited Russian avant-garde art (the "repudiation letter"). (Def. 56.1 ¶ 87; Def. Ex. G (Hutton Dep.) 118-121.) The letter reads as follows:
(Def.Ex. J.) The Joliette catalogue was produced in connection with the 1992 Canadian exhibition and noted that the Boulés had loaned the works in the exhibition. In that catalogue, the curator, Antoine Blanchette, had included a note of appreciation to Mark.3 (Pl.Ex. B.) It had been expected that Mark would attend and participate in the show, although he did not. (Pl.Ex. W; Pl. 56.1 ¶ 53.)
Mark said that he conceived of the letter because he had seen a catalogue from the Jewish Museum, which was organizing a traveling exhibition of Russian Jewish artists which included Khidekels owned by Mark and Regina and consigned with the Hutton Galleries. (Mark Dep. 271-72; Hutton Dep. 82-83.) The Jewish Museum catalogue cited both the Joliette catalogue and the Hutton catalogue in its bibliography, and Mark "didn't want to mix or to blend the works from the two sources." (Mark Dep. 272; Pl.Ex. BB.) The Khidekels that were reproduced in the Jewish Museum catalogue were lent by the Hutton Galleries. (Pl.Ex. BB.)
In its February 1996 issue, ARTnews published a 13-page article entitled "The Betrayal of the Russian Avant Garde." (Pl.Ex. AA.) The article reported on the...
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