Hajime Sorayama v. Robert Bane and Tamara Bane Gallery
In 2007, Japanese artist Hajime Sorayama obtained a nearly $2-million judgment, including $1 million in punitive damages, against Robert S. Bane, his publishing company, Robert Bane Ltd., and his gallery, the Tamara Bane Gallery. In 2009, a federal bankrupcy court refused to allow Bane to discharge the debt, citing a pattern of intentional and pervasive fraud perpetrated against Sorayama.
The Tamara Bane Gallery (TBG) was an important gallery that helped create a substantial market for so-called "pin-up" art. It opened its doors on Melrose Avenue in Los Angeles in the late 1980s with a show by artist Olivia de Bernardinis; and later it moved to chicer surroundings on Beverly Drive. Throughout the 90s, the gallery specialized in, but was not limited to, pin-up art and artists. Artists as diverse as Mark Ryden, Robert Williams, Eyvind Earle and Aldo Luongo were given one-person shows at the gallery.
TBG was and is solely owned by Robert Bane and his wife, Tamara Feuer-Bane. Mr. Bane's art publishing company, Robert Bane, Ltd. also conducted business through the gallery, as well as through the names Exotica and Robert Bane Editions.
TBG and Bane began their relationship with Japanese artist Hajime Sorayama in 1994, when Sorayama was already a star on the international art scene.[1] By 1995, Sorayama was a regular contributor to Penthouse magazine and his lithographic and glicee editions were being sold in the United States exclusively through TBG and Bane. His shows at Tamara Bane Gallery were well attended.[2] As the new century began, however, the relationship went awry.[3]
All of the facts recounted here are the conclusions and determinations of United States federal judges in two different litigations, one in the United States District Court, Central District of California, and the other in the United States Bankruptcy Court sitting in Los Angeles.
Breach of Contract against Robert Bane Ltd.
The judge found Robert Bane Ltd., trading through the Tamara Bane Gallery and Exotica, guilty of breach of contract for failing to pay the $93,280 owed to Sorayama under the September 9, 2002 agreement. With interest up to August 27, 2007 (the date of the judgment), the total amount came to $148,949.68, but interest continues to accrue. [4]
==Conversion against Bane personally--
The Court ruled that Bane personally committed the tort of conversion, a civil analog to theft, when he sold off 33 of Sorayama's paintings and then pretended that he didn’t know where they were while pocketing the money.[5] Bane argued that there was no harm done because he was willing to pay Sorayama his share of the proceeds of sale, but the court correctly decided that the proper remedy was payment to Sorayama of the full value of the work, not just the artist's share. Because Bane was found to have acted in bad faith – willfully and maliciously, in fact – and not the result of honest mistake, allowing Bane to keep any part of the money he tried to keep for himself would have wrongly rewarded him for his misdeeds.[6]
Breach of Fiduciary Duty against Robert Bane Ltd.
Under the California Civil Code Section 1738.6 et seq., “a consignee of art is deemed a trustee of the proceeds of sale.”[7] Under this provision, Robert Bane, Ltd., to whom Sorayama consigned his artwork under contract, was determined to be a fiduciary. While Bane personally “converted” the artworks for his own benefit, Bane's company breached its fiduciary by hiding the sales from Sorayama. On this cause of action, the company was held to be jointly and severally liable for the same $388,000 assessed against Bane personally on the conversion count.[8]
Intentional Interference With Prospective Economic Advantage
At the time that Sorayama was negotiating with Bane to take lithographs and glicees in exchange for a credit against Bane's debt, Bane pointed out (in a letter) that the 2,041 pieces in his possession had a market value of more than $1 million. Sorayama, however, was an artist, not an art retailer, so he agreed to take only 830 pieces for a credit of $35,000.[9] Then he would think about the rest.
For reasons known only to Bane, Bane and his co-defendants began dumping "scores of [Sorayama's] limited edition reproductions" at cut-rate prices on eBay and other websites, sometimes at less than a hundred dollars. Although Bane denied doing this, the court found that the documentary evidence "clearly establish[ed] that he did so." Furthermore, Bane knew he would irreparably damage the market for Sorayama's work:
The state of the evidence is clear: plaintiff reasonably expected future economic benefit as a result of his relationship with his many international customers. Defendants, as plaintiffs American art publisher, knew of that relationship and its anticipated economic benefit to plaintiff. Defendants' decision to flood the market with cut-rate reproductions was clearly designed to disrupt that relationship, and did so. Plaintiff experienced great difficulty selling the reproductions in his possession, because of their availability on eBay.[10]
As mentioned above, Sorayama was unable to obtain a fair price for the 830 pieces for which he accepted the $35,000 credit. But far worse than that was what Bane did to the market for Sorayama’s work in general. As the court found:
There has been a marked decline in such income since Robert Bane Ltd. devalued the product through eBay sales.[11]
The finding of intentional interference was rendered against all the defendants in the sum of $425,000, estimated by the judge to be Sorayama's loss of income occasioned by the tortious actions of Bane and his co-defendants.[12]
Punitive Damages for Willful and Malicious Injury
The court awarded Sorayama the sum of $1,000,000 against Bane personally because it found Bane's behavior toward Sorayama to be outrageous: both willful and malicious.[13] In the judge's words:
The record is replete with misrepresentations made by Bane to plaintiff, on which plaintiff relied to his detriment. Paintings were sold without payment to plaintiff, then lies were told to cover up the sales. The shifting of blame, reinvention of facts and dissembling went on for years, while Bane repeatedly said he was trying to do what was best for Mr. Sorayama and was making every effort to make good on his obligations. The evidence establishes clearly and convincingly that Bane perpetrated a continuing fraud against Mr. Sorayama, whose business and reputation have suffered as a result. Punitive damages are imposed on Bane personally and in favor of plaintiff in the sum of $1,000,000.[14]
Proceedings in Bankruptcy Court
Following the judgment, Bane sought the protection of the United States Bankruptcy Court. Although some proceedings are still ongoing, he has found little sympathy there. In a summary proceeding, the court ruled that Bane's bankruptcy would not discharge his personal debt to Sorayama, which as of February 2008 amounted to $1,813,000 plus accrued and accruing interest. When Bane asked the court to stay Sorayama's efforts to enforce the judgment pending appeal, the court refused, reminding the defendant that the District Court had found a pervasive pattern of fraud on Bane's part. Simply put, the Court said, it would be giving Bane the chance to hide assets and divert its inventory of artwork:
[I]mposing a stay may give the Defendant further opportunity to dispose of or secret assets that may remain to satisfy the Plaintiff’s judgment now that he knows for sure that there’s a judgment…[15]
The Bankruptcy judge further ruled that the circumstances of Bane's selling off Sorayama paintings and then hiding the proceeds from Sorayama constituted embezzlement under the bankruptcy law.[16]
Injunctions Against Bane et al.
Pursuant to the District Court ruling, Bane and the other defendants are prohibited from selling or offering for sale any Sorayama work for less than a minimum market value of $300 for lithographic prints and a $700 for giclees. Any sale by Bane, whether through his own company or through third parties, may be punished by contempt of court and additional sanctions. Furthermore, Bane and the other defendants are prohibited from stating that they are or ever were Sorayama's exclusive publisher of Sorayama.[17]
Robert Bane / Tamara Bane Gallery 2009
Today Robert Bane is currently devoted to a single artist, Fabian Perez, who is also Bane’s partner.[18] Together they operate under the names Robert Bane Fine Art, Inc., Tamara Bane Gallery of Fine Art and Fabian Perez Art Publishing LLC.[19]
Notes
- ^ Sorayama's pin-ups of "Gynoids," fantasy creations that are half-woman, half robot, are instantly recognizable and have graced the covers of numerous magazines. He is also the designer of the award-winning pet-robot, Sony Aibo.
- ^ See, e.g., Susannah Breslin, "The Art of Sex," April 12, 2001, L.A. Weekly, http://www.laweekly.com/2001-04-12/news/the-art-of-sex/
- ^ Mike Boehm, "Sorayama prevails over art dealer," Los Angeles Times, Sept. 22, 2007, http://8.12.42.31/2007/sep/22/entertainment/et-pinupart22
- ^ Sorayama v. Bane, Findings of Fact and Conclusions of Law, p. 4.
- ^ As recounted above, of the 33, 24 were paintings which Bane claimed were in a warehouse or somewhere else. The remaining 9 were the works sold at full price but represented to Sorayama as a "bulk" sale at a discount.
- ^ Sorayama v. Bane, Findings of Fact and Conclusions of Law, p. 4; see also, In Re: Robert Bane, Case No. LA07-19570-BB, Transcript of Proceeding, December 23, 2008, pp. 8-11.
- ^ Pelletier v. Eisenberg, 177 Cal.App.3d 558 (1986).
- ^ Sorayama v. Bane, Findings of Fact and Conclusions of Law, pp. 4-5.
- ^ Sorayama v. Bane, Exhibit 36 in the litigation, referenced in the court’s Findings of Fact and Conclusions of Law, p. 3.
- ^ Sorayama v. Bane, Findings of Fact and Conclusions of Law, p. 5.
- ^ Sorayama v. Bane, Findings of Fact and Conclusions of Law, p. 3.
- ^ Sorayama v. Bane, Findings of Fact and Conclusions of Law, pp. 3, 6.
- ^ Sorayama v. Bane, Final Judgment, p. 2.
- ^ Sorayama v. Bane, Findings of Fact and Conclusions of Law, pp. 6-7.
- ^ In Re: Robert Bane, Debtor, Transcript of Proceedings, March 19, 2009, p. 4.
- ^ In Re: Robert Bane, Debtor, Transcript of Proceeding, December 23, 2008, pp. 84-85.
- ^ Sorayama v. Bane, Final Judgment, p. 3.
- ^ http://www.robertbanefineart.com/company.asp
- ^ http://www.robertbanefineart.com/
