Sunday, August 16, 2009

The Tale of the Art of Norval Morrisseau

>>> NORVAL MORRISSEAU BLOG & Protecting the Legacy of Norval Morrisseau continues...

"Norval Morrisseau Genuine Collage" by Spirit Walker
~ All paintings © by Norval Morrisseau
/For detailed examination click on image and for more information about paintings presented in this collage click HERE/

> Text presented herein was originally published 08/15/2009 on 'Wise Law Blog'

Canadian art... illustrating how egos, principles, and perhaps greed, can motivate individuals and groups which are purportedly acting solely in the interest of a greater public good.

The Ontario case of Mcleod (Maslak Mcleod Gallery) v. Sinclair, 2008 CanLII 67901 (ON S.C.), deals with the art of the late great prolific First Nation artist, Norval Morrisseau, and alleges “forgeries” or “counterfeits” of his work.

In the Morrisseau action, four galleries and one distributor, all engaged in identifying, purchasing, holding and selling the works of Norval Morrisseau, are suing Ritchie (“Stardreamer”) Sinclair, alleging that through his website ( Sinclair is defaming the plaintiffs by falsely and without justification stating that works of art attributed to Morrisseau, owned or held by them, are not genuine. Sinclair responds that his motivation is to perform a public service and to assist in protecting Morrisseau’s legacy.

At an early stage in the court case the plaintiffs brought a motion requesting a temporary injunction to have Sinclair’s website shut down pending trial. The main proceeding, framed as a defamation action, seeks a permanent injunction, monetary damages and other relief.

In his decision, Justice Lederer acknowledges that it’s generally known that there is a concern that there are a number of paintings on the market which are identified as Morrisseau’s work, when they are not.

The motion was heard December 8, 2008, prior to cross-examinations on the affidavits filed by the parties. So the veracity of the allegations had not been tested, and in fact a lengthy affidavit of Sinclair, sworn January 5, 2009, had not yet been filed with the court. In that affidavit Sinclair explains in detail why he believes that many of the works offered for sale by the plaintiffs are fakes, and enumerates in detail the rationale for his belief that galleries, auction houses and ebay are offering paintings for sale that are not Morrisseau’s. He goes to great lengths to explain his expertise in terms of the Morrisseau art, based on his investigation, and importantly his lengthy master-protégé relationship with Morrisseau.

Each of the plaintiffs, the judge stated, asserts that the claims made attacking the pictures are in error and the paintings are genuine. Yet Sinclair’s website identifies works which have been offered for sale by one or more of the plaintiffs, alleged to be “fakes,” “counterfeits,” “imitations,” “stolen,” “inauthentic,” and so on. He names names, so to speak, of particular plaintiffs and specific works of art.

The judge noted that Sinclair has made it his personal concern to identify, uncover, make known and even publicize works said to be those of Morrisseau which he believes are false. The contents of the website alone clearly support the judge’s statement.

At issue is the right of freedom of expression, and the appropriateness of a court to stifle it before trial and before the allegations have been tested through cross-examination.

The judge found that: on their face, the comments and observations of Sinclair are defamatory; Sinclair had not yet had an opportunity to fully respond to the allegations that his comments are erroneous; Sinclair’s right to freedom of expression must be borne in mind; and both sides have a right to protection under the law.

Justice Lederer struck a balance, acknowledging that the website is in the public domain, and that while the proceedings are public, court records are not easily available. He ordered that the website can remain up pending further court order, provided that Sinclair place a notice on each page of the website which refers to the lack of authenticity of Morrisseau paintings, stating the court file number and the following:

“The opinions expressed on this website and on this page are those of Ritchie ‘Stardreamer’ Sinclair and of no other person. These opinions are alleged to be defamatory and are the subject of an action in the Superior Court of Ontario.”

The motion for temporary relief was adjourned to February 18, 2009, presumably so that further affidavits and transcripts of cross-examinations would be filed with the court. Counsel for the defendant has advised me that there have not yet been cross-examinations; that the motion was subsequently adjourned to March 18, 2009; and then once again without a fixed date to re-appear in court.

The plaintiffs run businesses, at least to some extent for profit, and believe that their reputations are wrongfully being besmirched. However it is reasonable to assume that part of their motivation for commencing proceedings was to maintain the integrity of the art world at large and serve the interests of collectors of Canadiana. The defendant, on the other hand, appears to be inspired by pure altruism, and concern that the public is being misled, without profit motive. It therefore seems that at least one of the parties is being driven solely by concern for the public, and the other in an indirect fashion.

by Alvin Starkman, who is a member of The Law Society of Upper Canada. However, this article is not intended to be and should not be relied upon as constituting legal advice or opinion. Alvin and Arlene Starkman, former Toronto residents and collectors of Canadiana, moved to Mexico in 2004. They operate Casa Machaya Oaxaca Bed & Breakfast.

Source: 'Wise Law Blog' - it features timely articles on legal developments in Canada and the United States, along with commentary on Canadian politics, American politics, technology and noteworthy current affairs.

>>> Reference posts:
- Blog Master's Public Address V,
Blog Master's Public Address VI,
Changing Faces of Ritchie "Stardreamer" Sinclair (Part I),
Changing Faces of Ritchie "Stardreamer" Sinclair (Part II),
Changing Faces of Ritchie "Stardreamer" Sinclair (Part III),
Changing Faces of Ritchie "Stardreamer" Sinclair (Part IV),
Changing Faces of Ritchie "Stardreamer" Sinclair (Part V),
Changing Faces of Ritchie "Stardreamer" Sinclair (Part VI),
Changing Faces of Ritchie "Stardreamer" Sinclair (Part VII),
Changing Faces of Ritchie "Stardreamer" Sinclair (Part VIII),
Changing Faces of Ritchie "Stardreamer" Sinclair (Part IX),
Changing Faces of Ritchie "Stardreamer" Sinclair (Part X),
Changing Faces of Ritchie "Stardreamer" Sinclair (Part XI),
- Changing Faces of Ritchie "Stardreamer" Sinclair (Part XII) &
- Norval Morrisseau Genuine Collage.

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