Margaret Bowland and the Stolen Painting - Part II

Remember the whole saga two years ago of how New Mexico art dealer Klaudia Marr allegedly conned the National Portrait Gallery to ship a painting by New York artist Margaret Bowland to a third party who apparently had paid Marr for the painting, even though, according to Bowland, Marr and Bowland had ended their relationship (and Bowland had earlier notified the NPG of this, and claims she has never received a penny from the painting's alleged sale).

Portrait of Kenyetta and Brianna, Oil on linen, 2008. 80 x 72 in. (203.2 x 182.9 cm) by Margaret Bowland
Read this article in the New York Daily News by John Mazulli about a law suit Bowland has filed against the NPG over the loss of her painting. I have obtained a copy of the complaint filed in Federal Court in Brooklyn and it is reproduced below:

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________________________
:MARGARET BOWLAND HARRIS,
:(A.K.A.) MARGARET BOWLAND,
:Case No : _____________
:Plaintiff,
:
:v.
:COMPLAINT
:PURSUANT TO THE FEDERAL TORT CLAIMS ACT 28 U.S.C. 1346(b) & 2671-2680
:Defendants.
:THE UNITED STATES OF AMERICA,
THE SMITHSONIAN INSTITUTION &
THE NATIONAL PORTRAIT GALLERY,
_____________________________________

Plaintiff, by and through counsel, alleges as follows:

PARTIES, JURISDICTION & VENUE

1. Margaret Bowland Harris (“the artist”) lives and has a studio in Kings County, Brooklyn, NY. The artist’s professional name, under which she shows her paintings and is known to the public is Margaret Bowland.
2. The National Portrait Gallery and its parent organization The Smithsonian Institution, both located in Washington, D. C. are two of the most prominent museums and cultural forces in the United States. Both organizations are a part of the United States government.
3. This Court has jurisdiction over this matter and venue is proper because the artist’s residence in Kings County, NY is within the
jurisdiction of this Court. 28 U.S.C. 1402(b) & 1346 (a).
4. The artist initiated her claim by filing a Standard Form 95
with the office of the General Counsel of the National Portrait Gallery on January 12, 2011. This date is within two years of the date of the incident or occurrences which form the basis of this claim.
5. The artist was notified on July`22, 2011 by the Office of the General Counsel of the Smithsonian Institution that her claim had been denied.
6. All preconditions for an action based on the Federal Tort Claims Act having been established, the artist then timely filed this
Complaint.

THE PAINTING AND THE PORTRAIT COMPETITION

7. The artist created a painting in oils on canvas entitled “Portrait of Kenyetta and Brianna,” (“the painting”). The painting is approximately six feet six inches tall and six feet wide and depicts three life size female figures.
8. The painting was exhibited at the Klaudia Marr Gallery in Santa Fe, New Mexico from October 17, 2008 to November 29, 2008.
9. The Klaudia Marr Gallery was owned and operated by Klaudia Marr (“Marr”).
10. On or about November 15, 2008, the artist was notified that the painting had been selected for the Outwin Boocheever Portrait Competition at the National Portrait Gallery (“the NPG”) in Washington D. C.
11. The NPG sent a shipper to pick up the painting at the Klaudia Marr Gallery and deliver it to the NPG on or about November 29, 2008.
12. The artist signed an Incoming Loan Agreement (“the agreement”) dated November 29, 2008 with the NPG. The period of the loan was March 1, 2009 to October 1, 2010.
13. On February 26, 2009, in an email to both the artist and Marr, the NPG stated that Marr had acknowledged that the artist was the legal owner of the painting. Marr never objected to the statement by the NPG that the artist was the legal owner of the painting.
14. The exhibition of paintings from the NPG portrait competition (the exhibition”) opened on October 23, 2009 and ran almost one year, closing on August 29, 2010. The painting was named one of six finalists in the competition and at the end of the show was awarded “The People’s Choice Award.”

THE RETURN OF THE PAINTING

15. Under the terms of the agreement, the painting was to be released by the NPG at the end of the exhibition only to the lender (the artist) unless the NPG was timely notified otherwise in writing by the lender.
16. The artist never notified or authorized the NPG to release the
painting to anyone other than her.
17. Under the terms of the agreement, in case of any change in legal ownership of the painting during the period of the loan, the new owner shall give the NPG legal proof of such a change as soon as possible.
18. The NPG never received notice or legal proof that the ownership of the painting had changed from the artist to anyone else.
19. The credit line used by the NPG during the exhibition and in the catalogue of the exhibition was “From the collection of the artist.”
20. As the exhibition drew to a close, the NPG sent the artist two emails about returning the painting. These emails were sent to an email address that the artist had not used for over a year instead of to the email address the artist had been using for numerous emails between herself and the NPG during the past year. The artist did not receive the emails sent to the old address.
21. The NPG had the artist’s telephone number and street address but did not try to contact her through them. The artist never received any U. S. mail, overnight delivery service mail or telephone calls from the NPG about to whom the painting should be sent.
22. The NPG sent a “carbon copy” to Marr of its second email to the artist on August 27, 2010.
23. Not quite nine hours after the NPG cc’ed Marr with its email to the artist, Marr sent an email to the NPG directing that the painting be sent directly to her client, David Naylor of Santa Fe, New Mexico (Naylor).
24. Despite these facts: that during the exhibition the painting had been credited as being “From the collection of the artist;” that the artist had never authorized the NPG to send the painting to anybody but herself; that the NPG had never received any notice or proof that the painting had an owner other than the artist; and that, once the NPG attempted to confirm where the painting should be sent, the NPG had never contacted the artist by telephone, U. S or overnight mail or by the current email address in its possession, NPG shipped the painting to Naylor.
25. When the artist learned that Naylor had the painting, she contacted him several times in an attempt to either get the painting back or to receive payment for it. Naylor claimed to have already paid Marr for the painting, and to date he has neither returned the painting nor paid the artist anything for it.
26. Marr has never paid the artist anything for the painting.

FIRST CAUSE OF ACTION
BREACH OF CONTRACT

27. By signing the Agreement, the NPG was contractually responsible for returning the painting to the artist.
28. The NPG was in breach of the Agreement when it shipped the painting to Naylor.
29. As a consequence of the NPG’s breach of contract, the artist has been deprived of a valuable work of art which lawfully belonged to her.

SECOND CAUSE OF ACTION
NEGLIGENCE

31. The NPG owed the artist a duty of care to insure that the painting be returned to the proper person.

32. The NPG failed to take reasonable steps to insure that the painting was shipped to the proper person.
33. Failure to take reasonable steps to insure that the painting be returned to the proper person makes the NPG negligent in its duties to the artist.
34. As a result of the NPG’s negligence toward the artist, the artist has been damaged by being deprived of a valuable work of art which is lawfully hers.

WHEREFORE, plaintiff requests this Court to award compensatory damage of $100,000, against the United States of America, the Smithsonian Institute and the National Portrait Gallery and such other and further relief as appears reasonable.

Dated: January 19, 2012
New York, NY

Update: Read Court House News take on the issue here.

Update 2: Read an almost personal attack on Bowland by Julia Halperin in ArtInfo.com here