Gagosian Gallery moved ahead with plans for its fall show of sculptural works by Franz West at its Madison Avenue gallery this past Friday, September 11, despite a copyright lawsuit by the Vienna-based non-profit Archiv Franz West that had tried to bar the show via a restraining order. The show, titled “Möbelskulpturen/Furniture Works” runs through November 7.

On September 10, just a day before the opening, U.S. District Judge Louis Stanton declined to issue a temporary restraining order against Gagosian, according to Courthouse News. But the case is still open according to a spokesperson for the dockets department of the Southern District.

In response to a request for comment, Robert Lack, one of the attorneys for the Franz West Archive, told artnet News via email: “Archiv Franz West will continue to enforce its rights in the courts. Last week’s decision will not be the last one in this matter.”

According to the complaint, which was filed in US District Court for the Southern District of New York on September 4, the archive asserted that it holds the “exclusive license to produce and sell certain furniture works designed by the late Austrian artist Franz West,” which also extends to photographs of said works.

Franz West Four works: (i) Untitled, (ii) Untitled, (iii) Untitled, (iv) Untitled (2001-02) sold at Phillips this past May for $43,750.
Image: Courtesy of Phillips.

But opposition papers filed in the case, by Gagosian’s attorney Matthew Dontzin, point to an authority struggle between the archive and another entity known as the Franz West Privatstiftung, a private foundation established by the artist in 2012.

The West archive said its exclusive license was declared by the “Commerical Court of Vienna in April 2015″—referred to in some court papers as “the Vienna decision.” The Archive alleged that Gagosian’s planned show, for which a press release was issued mid-August, violates the archive’s exclusive licenses and related foreign copyrights. The Archive sought to “enjoin Gagosian’s planned exhibition and sale of West’s work.”

The complaint cites two license agreements that West, who died in 2012, entered into with the archive in the year prior year. “Each license agreement was signed by West on May 27, 2011 and countersigned by he archive on July 14, 2011.”

The complaint said the work Gagosian “plans to sell is an unauthorized—essentially an imitation—version of West’s work,” and one which is “not disclosed to potential buyers. The distribution of unauthorized copies of West’s work will lead to confusion among art buyers and collectors and a reduction in the confidence of art market participants as to whether works by West being offered are genuine, which confusion is very likely spill over to all works of West thereby damaging the artistic and commercial value of West’s work generally.”

Gagosian attorney Matthew Dontzin, who has handled a number of other high-profile art lawsuits, penned a strenuous case for denial of the temporary restraining order, in a memo to the court filed September 9. He laid out detailed arguments including the factual background behind licensing of West’s work and arguments against the temporary restraining order and relief sought by the archive.

Dontzin called the lawsuit “an improper attempt by the Archive to get here what it failed to obtain, and may never obtain, in Austria: injunctive relief enforcing its purported rights under written agreements,” entered into with West in 2011.

According to the memo, West “nullified” the agreements in a pair of written and signed legal deeds just a year later and instead transferred those rights to the Franz West Privastiftung.

To date, apart from the Gagosian motion, the archive made two attempts to obtain restraining orders and both were denied, the memo notes. On August 27 this past summer, the archive attempted to enforce the so-called “Vienna decision” in a suit filed in Zurich against Eva Presenhuber gallery, “another gallery that, like Gagosian Gallery here, was hired by the Foundation to exhibit and sell West’s work.”

A Swiss court denied the application for the order.

“The Archive’s dispute here is not with Gagosian Gallery, but with the Foundation,” Gagosian’s attorney’s wrote in the opposition papers. “Gagosian Gallery does not manufacture any Furniture, and it is selling the Furniture only in its capacity as the Foundation’s consignee.”

Gagosian’s attorney did not respond to a request for comment.

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