Art is no stranger to great controversy, although the arbiters of art world disputes are usually critics and artists rather than federal judges. Nevertheless, in early March, Judge Denise Cote of the Southern District of New York was faced with a complaint accusing the Keith Haring Foundation of a range of violations – including antitrust, defamation and Lanham Act false advertising – and dismissed it entirely for failure to state a claim. While the case has obvious implications for the art world at large and art authenticators in particular, it also reinforces an important lesson about false advertising claims that depend on press releases.

The facts pertinent to the false advertising claims are briefly described here. Plaintiffs were individuals that claimed to own a large volume of artworks by the legendary artist and social activist Keith Haring. For a time after Haring’s death, the Keith Haring Foundation authenticated works purported to be by the artist. It no longer offers this service. One of the plaintiffs submitted some of her works for authentication and the Foundation found them not authentic. (Judge Cote dismissed antitrust claims based largely on this authentication service.)

Years later, plaintiffs exhibited their works, including the works previously determined by the Foundation to be not authentic, at an exhibition in Miami called “Haring Miami.” The Foundation, acting in its capacity as the owner of the copyright and trademark rights in Haring’s artistic legacy, filed a complaint in federal court in Miami against the Haring Miami organizers and sought a temporary restraining order to prevent exhibition of the inauthentic and infringing works.

On the same day the lawsuit and motion were filed, the Haring Miami organizers agreed to settle the injunction motion by removing from the exhibition all the works the Haring Foundation found to be inauthentic. The Foundation issued a press release announcing both the lawsuit and resolution of the motion, stating that the organizers had agreed to remove the “fake Haring works” from the exhibition.

The alleged owners of the art then sued the Foundation and others in New York, including the claim for false advertising. The district court dismissed the Lanham Act claim because the plaintiffs failed “to allege a sufficient connection between either the Press Release or Miami Complaint and a proposed commercial transaction.” Judge Cote expressly rejected plaintiffs’ argument that it was sufficient to allege the Foundation made statements “with the intent of preventing sales” of the works plaintiffs owned in an effort to increase the value of Keith Haring art owned by the Foundation and its members. A plaintiff in these circumstances needs to allege some link to a specific marketplace transaction in order to raise a false advertising claim. Allegations of a critical or disparaging statement – even one made allegedly with the intent to diminish sales – will not suffice.

Judge Cote did not grant the plaintiffs any more artistic license on their other tort claims based on the Miami pleadings and the related press release. The defamation claim failed because “[a]ssuming arguendo” the statements were defamatory, the statements in the complaint were privileged and the statements in the press release concerned only the organizers of the exhibit or the artwork on display, not plaintiffs. And again, “assuming arguendo” the statements were defamatory, the related trade libel claim failed for failure to plead special damages. Ultimately, while art may be subject to the whole gamut of creative and subjective interpretations, false advertising and defamation claims are not.

Proskauer represented the Keith Haring Foundation in this matter. The attorneys involved with the case were Sarah Gold, Margaret Dale, Jennifer Yang and Jack Browning.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at /212-969-3240 or /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.