Andy Warhol Joe Simon court decision may have implications for other foundations

The New York Times is reporting that Joe Simon's case against the Warhol Foundation, the Andy Warhol Authentication Board and other entities, will go ahead after a court ruling on May 26, 2009.  Simon had purchased a Self-Portrait which was authenticated by Fred Hughes when Hughes was head of the Warhol Foundation and then later de-authenticated ("Denied") by the Andy Warhol Authentication Board when Simon re-submitted it in 2001 and 2003 (with additional documentation).

Prior to considering a work for authentication the Board requires submitters to sign a Submission Agreement in which the owner of the work waives their right to sue the Authentication Board, the Foundation, the Estate of Andy Warhol and their representatives. Because Simon had signed such an agreement in order to get the Authentication Board to consider his painting, the Warhol entities were arguing that he had waived his right to sue. The Court upheld Simon's right to sue, despite his having signed the agreement, because "A party may not invoke such an agreement to insulate itself from intentional wrongdoing, such as that alleged in this action." The decision could have far-reaching implications for any other Foundation or Authentication Board which requires such a waiver or has required such a waiver in the past.

Simon's case against the Board will now proceed. The New York Times  (May 27, 2009) notes that "Judge Laura Taylor Swain ruled that Mr. Simon-Whelan had asserted his allegations 'plausibly' enough for the case to continue to the discovery phase on many of its claims." Simon and his case were the subject of a 2006 BBC documentary, Warhol Denied, directed by Chris Rodley, which featured interviews with David Hockney, Sam Green, Gerard Malanga, Paul Morrissey and John Richardson. Rodley also directed the 2004 documentary, Andy Warhol: The Complete Picture.

Gary Comenas