rights
Saura’s last will and testament, the postmortem instructions, the pseudo-Antonio Saura foundation of Cuenca (Spain)
1. The pseudo-Antonio Saura Foundation of Cuenca (Spain), created against the wishes of Antonio Saura
In Antonio Saura’s will, drawn up on May 29, 1995 and revised on June 5, 1997, i.e., when the artist learned he was suffering from the leukaemia that would cut short his life one year later, he set out the rules for dividing his estate between his two heirs and stipulated a number of bequests to several persons and museums.
In his posthumous instructions to his friend and executor, Olivier Weber-Caflisch, Antonio Saura directed that his heirs should assume the responsibility of conserving his archives and other work-related documents. At the time, a foundation that was supposed to bear the artist’s name was in the process of being created; in this regard Antonio Saura stated the following:
“The foundation:
“Most of the commitments signed in 1995, as well as the promises made since, have not been honoured to date. My own appeals of February and June have gone unanswered. The failures of the persons and administrations involved have hindered this project from becoming a reality. Its ability to carry on in financial and human terms has not been secured and will surely not be following my death.
“I expressly request that you halt all steps currently being taken and put an end to this project by all means that you deem useful. No foundation or analogous institution will be created or bear my name without the prior and unanimous consent of Mercedes, Marina and you.”
Immediately after Antonio Saura’s death, the artist’s executor was forced by the reality of the situation to recognise that none of the conditions set forth by the deceased for realising the proposed foundation had in fact been fulfilled.
Consequently, the executor asked the members of the board of the foundation then being formed to put an end to the process of creating the foundation.
Thus, acting on the artist’s wishes, several board members of the proposed foundation resigned of their own accord; they were Juan Manuel Bonet, the then-Director of the Museo Nacional Centro de Arte Reina Sofía; Professor Valeriano Bozal; Tomàs Llorens, the then-Director and Keeper of the Thyssen-Bornemisza Museum; Mercedes Beldarraín, the artist’s widow; and Marina Saura, the artist’s daughter.
However, other members of this board requested that the pseudo-foundation be listed in the local registry of foundations, which it indeed obtained, despite the fact that the legal conditions for registering the said foundation had yet to be met and inclusion in the registry had been refused several times whilst the artist was still alive.
The heirs and legal executor were compelled to legally oppose this addition to the registry by initiating administrative proceedings requesting that the registration of the pseudo-foundation be cancelled.
Nevertheless, an initial finding of the administrative court of the region of Castilla-La Mancha (see Judgement of the Sala de lo Contencioso administrativo of May 7, 2003), and a second handed down by the Supreme Court of Madrid upon appeal of the first (see Judgement of the Supreme Court of November 22, 2005), confirmed the formal validity of the registration.
Spain’s Supreme Court did not examine Antonio Saura’s posthumous instructions to his executor but merely dismissed them as null and void, just as it refused to take up the authenticity of the aforementioned posthumous instructions, which had nevertheless been challenged by the pseudo-foundation.
The Spanish Supreme Court strictly limited itself to considering the formal conditions of the pseudo-foundation’s inclusion in the Registry of Foundations, without looking into Antonio Saura’s clearly expressed desire to put an end to the process of creating the foundation, on the formal and excessively formalistic grounds that the artist did not use the same terms in laying out his posthumous instructions as he employed in 1995 in the draft protocol calling for the creation of a foundation bearing his name.
This constitutes a denial of justice that in turn sanctions a deception.
The aforementioned judicial bodies never examined the fundamental question of whether a foundation can indeed be created and exist against the wishes of the person whose interests the very same foundation claims to defend, as well as against the wishes of his or her heirs and executor.
In addition, the highest legal authority in Spain, despite the admission of its members, ignored the fact that the pseudo-“Fundación Antonio Saura” had never met the legal conditions for its registration.
2. The authenticity of the posthumous instructions confirmed by the finding of November 22, 2006
Following the artist’s death, the pseudo-foundation requested that the Antonio Saura estate transfer possession of a collection of works on paper (numbering 218 and constituting the series Nulla dies sine linea) to the pseudo-foundation.
The executor refused to hand over these works to the pseudo-foundation, noting that at the time of Antonio Saura’s death, the pseudo-foundation had not yet been formed and did not correspond to any of the conditions clearly laid out by the artist either when the draft agreement for creating a foundation was drawn up, or in the posthumous instructions addressed to the executor of his last will and testament.
On September 23, 1999, a suit was brought by the pseudo-foundation’s members, assisted by the executive authorities of Castilla-La Mancha (the Junta de CLM), and the town council and “Diputación” of Cuenca, all of whom are members of the pseudo-foundation’s board.
A criminal complaint (Diligencias previas proc. 5224 / 1999) was therefore brought against Mercedes Beldarraín, Antonio Saura’s widow; Marina Saura, his daughter; and Olivier Weber-Caflisch, the executor of the artist’s last will and testament.
These individuals were accused of “apropiación indebida” (criminal conversion).
The pseudo-foundation and its confederates claimed that the artist’s posthumous instructions were not authentic.
This was the only way, even if criminal, to undermine the good standing and reputation of the artist’s heirs and executor, nullify the validity of the artist’s posthumous instructions, and assert the pseudo-foundation’s claims on the collection of works entitled Nulla dies sine linea.
On November 22, 2006, that is, after eight years of judicial investigation, the no. 10 examining magistrate of Madrid approved the Report and Conclusions of the assessment made by the Scientific Investigation Unit of Madrid’s Police Department (Asunto: M – 11987 – D – 2006 of November 16, 2006), which confirmed the authenticity of Antonio Saura’s posthumous instructions (see Informe pericial sobre firmas of November 16, 2006).
3. The decision to close the criminal procedure
On December 15, 2006, the no. 10 examining magistrate of Madrid therefore moved to close the aforementioned criminal procedure (see Judgement no. 42500 of
December 15, 2006).
The pseudo-foundation and its confederates appealed this finding, which was nevertheless confirmed on appeal by the December 28, 2007 judgement handed down by the Audiencia Provincial of Madrid.
This final and conclusive decision shatters the finding of the Supreme Court of Spain. It confirms the authenticity and hence validity of the posthumous instructions that Antonio Saura had addressed to his executor (see Judgement of December 28, 2007, Sección 7, Rollo: 187/2007, Auto no. 1180/07).
The members of the pseudo-foundation and their confederates thus lost the only tool for threatening and pressuring the artist’s heirs and executor, which the pseudo-foundation had continuously wielded against them. This form of blackmail comes down to the following simple terms: an end to legal proceedings in exchange for a significant number of works by Antonio Saura (see the correspondence between the Minister of Culture of CLM and the Antonio Saura estate).
Normally, once the court had found for the estate, the pseudo-foundation and its confederates should have finally admitted that Antonio Saura had indeed legitimately abandoned the proposal to create a foundation bearing his name in Cuenca and dissolved the pseudo-foundation.
The members of the pseudo-foundation and their confederates, however, have decided to ignore the finding of the court and pursue their activities whilst accepting that they have been deemed impostors.
4. The administrative procedure concerning the tax authorities’ conflict of jurisdiction as regards questions of inheritance between the Junta de Comunidades de Castilla-La Mancha (the executive of CLM) and the Spanish State
In accordance with Antonio Saura’s will and with the applicable tax laws, the executor filed a General Declaration of Succession with the Tax Authorities of the Spanish State (Agencia Tributaria).
Antonio Saura had indeed considered the possibility that his heirs would be allowed to pay all or part of their estate taxes through a donation of works. The Museo Nacional Centro de Arte Reina Sofía (MNCARS), a state museum, was thus the natural choice to receive the bequest envisaged by the artist.
The executive authorities of Castilla-La Mancha, under the leadership of the then-director José Bono, disputed the competence of the State to receive the General Declaration of Succession respecting the payment of estate taxes, and lodged an administrative procedure against the Antonio Saura estate and the Spanish State before the Junta Arbitral, the competent body for judging conflicts of jurisdiction between communities and the State (Procedure: CONFLICTO no. 5/2000).
During this procedure, the administration of José Bono sought to substantiate, through false evidence, the claim that Antonio Saura had been a resident in Cuenca whereas it was public knowledge that the artist had regularly resided in Paris starting in March 1967!
Finding for the Antonio Saura estate on February 2, 2001, the Junta Arbitral nonsuited CLM, dismissing all its claims (see Judgement of February 2, 2001).
This decision finally made it possible to settle the succession, which had been stalled for two years, and to proceed with payment of the estate taxes through a bequest to MNCARS of sixty-one major works by the artist.
5. The false certificates of authenticity delivered by the pseudo-foundation
Usurping an authority that is not the institution’s by any right, the pseudo-foundation has produced false certificates of authenticity.
These so-called certificates have authenticated works that are not by Saura’s hand, just as they have attributed the status of works of art to pieces that were in fact only fragments of a work of art composed by the artist. The effect of these false certificates is to lend a pseudo-legitimacy to the mutilation that certain works by Saura have been subject to, thus infringing on the work’s right of integrity.
The pseudo-foundation has likewise provided certificates for unfinished works in violation of the right of divulgation.
The Saura estate has requested and obtained the sequestration of works placed on the market that were provided with false certificates delivered by the pseudo-foundation.
These dishonest schemes are committed by persons who are ignorant of the artist’s work, who are incompetent and unscrupulous. They seriously undermine not only Antonio Saura’s work but also his good name and image.
6. The pseudo-foundation violates copyrights
Repeatedly, the pseudo-foundation has published images of Antonio Saura and other artists without ever requesting or obtaining prior authorisation from either the artists or their legal successors, as required by law.
Acting in the name of and on behalf of all artists despoiled of their rights, VEGAP, in its capacity as an agent, brought a civil suit against the pseudo-foundation, which led to the conclusion of an agreement on January 28, 2008, according to whose terms the pseudo-foundation admits to having violated the rights of the artists whose works have been illegally reproduced and promises to withdraw the disputed works and pay a compensatory fine (see Convention of January 28, 2008).
7. The misdeeds of Antonio Pérez, founding member and “artistic director” of the pseudo-foundation
In 2007, under the aegis of the foundation that bears his name, Antonio Pérez published a work devoted to himself entitled “Antonio Pérez” that included a text by Antonio Saura, “The Museum Opposite”, which was reproduced in its entirety without Mr Pérez requesting authorisation to do so from the Antonio Saura estate, the sole holder of the artist’s copyrights.
The work was financed by the Junta of CLM along with the Diputación and Ayuntamiento of Cuenca.
A suit was brought by the Antonio Saura estate against La Fábrica, the book’s publisher, before the no. 5 Juzgado mercantil of Madrid, which led to an initial finding of June 24, 2009 ordering the publisher to withdraw the work from sale, etc. The court stressed that Antonio Pérez and his publisher had indeed acted in bad faith (see Sentencia no. 97/09 of the no. 5 Juzgado mercantil of Madrid of June 24, 2009).
Antonio Pérez and his publisher have since appealed this finding.
As part of the same suit, though acting on temporary measures, the court found against Antonio Pérez and his publisher once again, according to the judgement of December 16, 2009 (see Sentencia no. 3145K of the no. 5 Juzgado mercantil of Madrid of December 16, 2009).
8. The appeal of April 12, 2006
In April 2006, a number of eminent figures from the world of culture were stirred to action and publicly condemned the fact that Antonio Saura’s wishes were not being respected by the various political authorities of CLM that were supporting and continue to support the pseudo-foundation.
These figures launched an appeal for support in the press, which received and continues to receive from around the world hundreds of names of those who would like to add their voice to this call for justice, including artists, writers, people working in art-related fields, the academic world, the world of museums and art centres and others, who often express their indignation at the imposture created by the pseudo-foundation and the various political authorities of CLM (see Appeal of April 12, 2006).
9. What future awaits the pseudo-foundation?
Despite the range of constraints the many law suits imply and the resulting difficulties, the pseudo-foundation and its confederates have not managed to force the Antonio Saura estate to cease to oppose the usurpation of the artist’s name and withdraw from the legal procedures that are currently running their course.
Now that the Scientific Investigation Unit of the Madrid Police Department and the Court of Appeal (Audiencia Provincial) of Madrid have confirmed the authenticity of Antonio Saura’s posthumous instructions to his executor, the pseudo-foundation has irremediably lost all legitimacy.
That the pseudo-foundation’s inclusion in the Registry of Foundations of CLM was confirmed by the Supreme Court of Spain doesn’t mean it exists at Antonio Saura’s behest. It was the political authorities of CLM who rushed to add the pseudo-foundation’s name to the registry following the artist’s death, even though they were aware of Antonio Saura’s position to the opposite effect, as it clearly emerges from his final wishes.
Appropriating for dubious or commercial ends the good name and image of an artist who has become famous is common. What is less so, however, is public authorities participating in actions that run contrary to the law and supporting persons and institutions that violate the legal code.
With the rule of law, it is up to the authorities of Castilla-La Mancha to reconsider the validity of the legal and financial support they have provided the pseudo-foundation at the tax payer’s expense, given the failure that all of their legal initiatives have met with.
Who would foresee the survival of a foundation without works by the artist, without the archives, the photographic or iconographic documentation, the competent persons who know the many aspects of the artist’s work, without any means of acquiring works, doing research, publishing and exhibiting, and above all without copyright or related rights, without the right of divulgation and the right to use even a single image by the artist?
What will the pseudo-foundation do without the moral authority which the artist’s heirs and executor, along with many leading figures in the world of culture and the arts, have been compelled to withhold?
If the political authorities of Castilla-La Mancha are incapable of applying the law, i.e., striking from the registry a foundation that uses and abuses the good name and image of Antonio Saura, then this pseudo-foundation will exist at the community’s expense probably for some time more before being forgotten in the general indifference, with no other support than that of a few corrupt judges.
As long as the pseudo-foundation remains registered, neither the Saura estate nor the Antonio Saura Archives Foundation will consider working with individuals who have strayed into a project that has no legitimacy and no future.