The "provenance" of the mobile, or the chain of ownership from the original artist to the present owner, is accepted in the art world as persuasive evidence of a work's authenticity and was important to Silverman's conclusion here. Id. at 25.... She testified that she "took the time to really check what had happened to the piece and what in fact the piece is all about," and that she felt "very strongly" about her opinion. Id. at 15-16.... Because she had no independent knowledge of the Rio Nero, though, she could not testify that the mobile was the Rio Nero.
Like Perls, Silverman commented that her "first feeling" upon examining the mobile was that "there was an assembly problem." Although the mobile "was definitely an authentic work," it struck her from the beginning "that some of the pieces had been altered or bent or forced," id. at 16, or otherwise "tampered with." Id. at 18.... She agreed with Perls that some of its parts might not be originals of Calder and felt that one joint, in particular, might have been replaced.... Because of the apparent alterations and the observable damage, Silverman testified that she would not have sold the mobile as a Calder in its present, damaged condition.... She believed, however, based on information obtained from Sotheby's (and contradicted by Greenberg), that Calders could be restored. After the mobile was "restored to its original intent," id. at 16-17, she would have sold it as a Calder, but for a discount of 25 to 30 percent.
Silverman was not impressed by Perls' opinion.... She believed that Perls had inspected the mobile "very haphazardly," id. at 15, and "in a very hurried manner." Id. at 28.... She questioned his method in relying exclusively on comparing the mobile blades to those in the archival photograph.... As a result, she felt, Perls "really did not pay attention to the work itself." Id. at 28.
Andre Emmerich is a dealer in contemporary (post-World War II) art who has owned his own gallery since 1954 and has sold Calders. He was called by plaintiffs to address to the reasonableness of the time in which plaintiffs discovered and notified defendants of the alleged forgery. Emmerich testified that difficulty hanging Calder mobiles is relatively common, since they are complex, precisely balanced, and must be disassembled and reassembled for transport. This is particularly true for mobiles with many elements, such as the mobile at issue here.... Emmerich thus testified that pieces occasionally bump into each other and that "you need expert help to get it to hang right." Deposition of Andre Emmerich ("Emmerich Dep.") at 59.
Laurence Casper, a self-employed art dealer for Casper Fine Arts and Appraisals, Inc. of New York, acted as Bauman's expert on the reasonableness of time.... He stated that as a dealer who has sold Calders mobiles, but is not expert in them, "I would be very leery about hanging a Calder that was disassembled, without some kind of advice as to someone who has really hung Calders." Deposition of Laurence Casper ("Casper Dep.") at 69.... Casper agreed with Silverman and Perls that authenticating a complex, three-dimensional, moving sculpture is a difficult and somewhat subjective process.... The constant movement of the rods and blades makes any photograph of a Calder mobile an incomplete depiction of the actual piece.... Casper testified that while a photograph may be used as a "possible guide" for assembling a mobile, a two dimensional photograph "would make it extremely difficult to be able to tell" the accuracy of a three dimensional sculpture. Id. at 68.
Emmerich corroborated Silverman's testimony that a provenance is "a very good guide to the work being authentic or not authentic," Silverman Dep. at 25, and that the mobile's provenance weighs heavily in favor of authenticity.... Emmerich stated that the mobile's flawless provenance, based on the Perls invoice, "is the best proof of authenticity I can think of." Emmerich Dep. at 71, see also id. at 31.... To him, "the overwhelming assumption, based on the paper trail . . . [would be] that the piece is authentic." Id. at 25.... Moreover, Emmerich stated that while forged provenances attached to fake works of art are not uncommon in the art world, in his experience and career in the field, he had "never heard of that kind of a substitution," id. at 32, that is, "of genuine documents being attached to a non-genuine object." Id. at 36.... "To be frank," he said, "I have never heard of a Calder fake." Id. at 25; see also Silverman Dep. at 27.... Calder mobiles would be particularly difficult to fake, he stated, because of the genius involved in their construction.... "It is a very tough task for a forger to be [that] brilliant an engineer." Emmerich Dep. at 38. Thus, Emmerich's "assumption would be that there are no fakes."
Id. at 51.
I conclude the record and circumstantial evidence surrounding the mobile creates a strong presumption that it is an authentic Calder and the Rio Nero.... This conclusion follows despite the great weight that must be accorded the opinion of Perls and his premier credentials in respect to Calder's work.... As Silverman herself stated, the best way to determine the authenticity of an artist's work is to have it examined by someone who knows the artist's work well or by the artist's gallery dealer.... Sotheby's considers Perls Galleries, Pace Gallery, and Maeght Gallery in France the world's leading Calder experts,
and Silverman herself previously had sought the opinions of Perls and Arnold Glimsher on Calders.... She was of the view that Perls' assessment of the mobile's authenticity would destroy its value in the art market and that Sotheby's would not sell a piece such as the mobile which Perls did not approve.
This is not the market, however, but a court of law, in which the trier of fact must make a decision based upon a preponderance of the evidence.
In the present case, balancing the evidence is complicated by the fact that the testimony of both principal experts was somewhat problematic.... Silverman refused to examine the archival photograph because she considered it unreliable.... She based her determination that the piece was an authentic Calder upon a detailed and extensive examination of the piece, with emphasis on the "AC" signature, and her professional knowledge of Calder's works.
Although Perls' credentials for an opinion on these criteria are vastly superior to Silverman's, he conspicuously did not address the signature
or otherwise base his opinion on other criteria in his area of expertise.... Instead, he relied on a cursory and mechanical comparison of the mobile to the archival photograph. Given the distortions all experts conceded are involved in photographing Calder mobiles, as well as the inherent difficulties involved in comparing a two-dimensional photograph to a three-dimensional moving piece, this testimony does not carry plaintiffs' burden.... The apparent inconsistency in Perls' testimony that the mobile was an "exact copy," e.g., Perls Dep. at 25, 55, 59, and yet "every single blade" was not by Calder, id. at 20, 101, and the fact that he based his conclusion, in part, on the assumed existence of another, "authentic" Rio Nero (whereabouts unknown), render the plaintiffs' evidence too inconclusive to support its preponderance burden.
The remainder of the record and reasonable inferences therefrom weigh materially in favor of a finding of authenticity. The evidence here describes a mobile, demonstrably authentic when it left the hands of Calder's dealer, that has remained in the Bauman family since that time.... The mobile's impeccable provenance is corroborated by an authentic invoice from Perls Galleries, creating, as all expert testimony in this case has confirmed, a strong presumption of authenticity.... Palmer, a dealer experienced in the works of Calder, displayed the mobile from November 1989 through January 1990, apparently without reservations regarding its authenticity, and sought unsuccessfully to extend his consignment. Perls himself likely asked permission to sell the mobile for Bauman after inspecting the transparency in January 1990.... It is more likely than not likely that when the mobile hung in the homes of Lionel and Patricia Bauman and in Palmer Gallery, it hung correctly and did not bump.
With respect to the mobile's condition, although there is no direct evidence in the record that plaintiffs actually damaged the mobile, circumstantial evidence makes it more likely than not that any variations or defects are attributable plaintiffs' handling after they paid for it and assumed the risks.... Greenberg testified that when he received and inspected the mobile, it matched the transparency,
and upon hanging it, he told his co-owners it was "fabulous" and "beautiful." Upon examining it more than a year later, however, both experts volunteered that the mobile had been "hurt," had "had an accident" or otherwise been damaged. Plaintiffs had possession of the mobile for eight months, during which they shipped the mobile around the country several times.... It was manipulated, assembled, and reassembled repeatedly by Stoller, Morris, and Morris' son.... To date, however, plaintiffs never have sought expert assistance in assembling the mobile.
On the other hand, plaintiffs, themselves experienced art dealers, have presented no evidence regarding how an "exact copy" of this complex mobile came to be formed or when and how it was substituted for the authentic Calder.... Nor is there any evidence identifying the location of the real Rio Nero, if the mobile at issue here is in fact an exact copy.... The record contains no evidence that there is a market for fake Calder mobiles or that another "exact copy" such as this one ever has been known to exist. Emmerich testified that he had never seen or heard of a Calder fake and never had heard of authentic documents being attached to an unauthentic work.... He considered it highly unlikely that a Calder mobile could be accurately imitated, due to the engineering difficulties involved. Perls confirmed that replicating even parts of a Calder is "extremely difficult."
Entwistle cites the case of Wilkinstein v. Wallis, 756 F. Supp. 158, (S.D.N.Y. 1991), as an instance where forgeries replaced authentic works of art in a private collection.... In that case, the wife of an private art collector sold two of her husband's Monet paintings, unbeknownst to him, and replaced them with forgeries crafted in London.Wilkinstein differs crucially from the case presented here, however.... In Wilkinstein, the facts established both a motive for the forgeries and a corpus delicti. In other words, the whereabouts of the authentic paintings was known, and their existence as a corpus delicti conclusively established that the other two paintings were forgeries.... Here, as stated above, any such corpus delicti is conspicuously absent.
In light of all the evidence, therefore, I conclude that it is more likely than not that the mobile is not a forgery but the original Rio Nero which has been misassembled and abused to the point that, on a cursory examination, it does not exactly resemble the original photo and has lost the delicate balance required for proper hanging.... Because plaintiffs have not met their burden, judgment accordingly shall be entered for defendants on all counts.
Louis F. Oberdorfer
United States District Judge
April 1, 1993
ORDER AND JUDGMENT - April 2, 1993, Filed
For the reasons stated in the accompanying Memorandum, it is this 1st day of April, 1993, hereby
DECLARED: that defendants' hearsay objection to Mathes' testimony regarding Perls' opinion about the authenticity of Calder's signature "AC" was improvidently overruled, there being no opportunity to cross-examine Perls about it; and it is further
ORDERED: that the ruling on the objection is vacated, the objection sustained, and the statement stricken, insofar as it purports to be testimony to the truth thereof; and it is further
ORDERED: that the Clerk shall enter judgment for defendants.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE