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More on the Langmuir Decision

By Intellectual Property Law, Esq.

Gregory Gibson, author of Hubert's Freaks (about Bob Langmuir's Arbus photos), criticizes this post of mine (as well as "nearly every other article on the affair") for "characteriz[ing] Bayo Ogunsanya as an innocent 'collector,'" when the truth is that "as Bayo admitted to me himself, he was a dealer who for years had been buying items at storage unit auctions and selling them at flea markets, ephemera shows and on eBay."

I should say in defense that I wasn't "characterizing" Ogunsanya one way or the other: I was merely quoting from the court's decision, which, coming as it did on a motion to dismiss the complaint, accepted Ogunsanya's version of the facts (see footnote 1 of the decision: "The facts set forth here are contained principally in the complaint. As I must, I accept them as true for purposes of this motion").

Beyond that, it's not clear how much turns on the correct characterization of Ogunsanya. In section C of the decision, the court takes on Langmuir's argument that "the identity of Diane Arbus as the photographer was not a matter peculiarly within his own knowledge, and Ogunsanya could have found it out for himself." In rejecting that argument, the court points out, first, that "in the absence of 'hints of . . . falsity' that might trigger a heightened requirement of diligence, Ogunsanya was not required to exercise due diligence." It then adds that "it is not enough for Langmuir to show that the identity of the photographer was not peculiarly within his knowledge. He must further show that the means of obtaining that knowledge were available to Ogunsanya by the exercise of ordinary intelligence" -- yet, here, "only those intimately familiar with Arbus's technique - scholars, experts, and curators - would be qualified to attribute these 'lost' photographs to Arbus. Indeed, at the time of Langmuir's purchase, even the most comprehensive catalogue of Arbus's oeuvre would not have included these prints." It is only after setting out these general principles -- which don't really depend on any particular characterization of Ogunsanya -- that the court (which, again, is constrained at this stage of the proceedings to accept Ogunsanya's version of the facts) mentions that he was "an unsophisticated memorabilia collector who simply bought a trunk at storage house auction." But it's certainly possible to read this section of the decision as suggesting that, if Ogunsanya could not have discovered that the photos were by Arbus "by the exercise of ordinary intelligence," then Langmuir's argument fails even if Ogunsanya is more accurately characterized as a dealer than a collector.

Full post as published by The Art Law Blog on October 09, 2008 (boomark / email).