Alexander Calder was the iconic sculptor-inventor of the kinetic art form for which the word “mobile” was coined. He certainly was prolific, and his well-known works grace public places from the Smithsonian to the reflecting pools in front of the New York State Capital. An interesting part of his less familiar work has raised authentication disputes with fiscal implications for the owner. Can such authentication problems be resolved through a CPLR 3001 declaratory judgment? A case in which the Court of Appeals recently declined leave to appeal shows that the barriers to such declaratory relief are high; and the reasoning of the court below provides insight on the limits of declaratory power. (Thome v. The Alexander and Louisa Calder Foundation1).
The artwork in question was a theatrical set assumed by the court2 to have been originally designed by Mr. Calder in the 1930s, and though the original 1930s stage set had been destroyed, in 1975 a new theatrical production and re-creation of the original Calder set was proposed. The original Calder drawings were converted into new working plans by an architect, which were then submitted to Mr. Calder in July of 1976 for his review and approval. Mr. Calder did approve them, and confirmed this by writing on the documents: “…I have looked at the drawings and find them Ok, and think everything Ok, and construction can begin when you are ready.”
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