Does a copyright notice serve as an endorsement?

Basquiat Estate v. Christie’s, via the Trademark Blog. Plaintiffs allege ownership of the mark BASQUIAT and copyrights in Jean-Michel Basquiat’s artwork. The Estate formed an Authentication Committee to opine on the authenticity of works attributed to him. A collector who claimed to have shared an apartment with Basquiat put up 50 works attributed to him. Only 7 had been submitted to the Authentication Committee, 6 of which were authenticated. Christie’s listed the 50 works in a catalog, Jean-Michel Basquiat: Works from the Collection of Alexis Adler. Though the estate denied permission to reproduce some of Basquiat’s works in the catalog, Christie’s put a notice in the catalog: “All artwork by Jean-Michel Basquiat: (c) 2014 the Estate of Jean-Michel Basquiat/ADAGP, Paris/ARS, New York.” The Estate alleged that Christie’s had reason to doubt the authenticity of the remaining items, though it doesn’t affirmatively allege inauthenticity.

I bet you’re expecting a copyright infringement complaint based on the use of authenticated Basquiat images (though not the 44 unauthenticated ones, of course!), but the Estate to its credit (no pun intended) did not bring a copyright infringement claim. However, and with some potential Dastar difficulty given that this is the district of Antidote Films, the Estate alleged false endorsement/false advertising under the Lanham Act, violation of NY GBL § 349, and unfair competition. The theory is that the copyright notice falsely implies that the works are authentic and that the Estate sanctioned the sale.

Were this litigated out, I’d expect, along with the Dastar issues (which would seem to me to preclude outright the false endorsement theory), questions about falsity: the Estate does not allege the inauthenticity of the 43 unevaluated pieces, and “reason to doubt” is not itself inauthenticity, so I can’t see how the complaint pleads falsity. There is that one piece the Estate’s Authentication Committee did not authenticate … but even there is wriggle room that the complaint might be carefully pleading around: if the Committee just said it couldn’t authenticate that piece, that too is not inauthenticity. As I understand it, at least some artists’ authenticating bodies have become hesitant about not authenticating in decisive language, worried about false advertising/slander of title issues of their own. (See this story about the Andy Warhol Art Authentication Board.)