The estate of Robert Indiana failed to convince a federal judge that the owner of the rights to his iconic “LOVE” image underpaid him and improperly reproduced his work, but the estate’s lawyer says he plans to present additional evidence to prove otherwise.

Judge Analisa Torres last week dismissed five of eight counterclaims filed in a New York federal court by Indiana’s estate in the protracted legal dispute over the artist’s life and legacy, and set an August hearing date for oral arguments to help settle part of the ongoing dispute.

Robert Indiana poses at his studio in Vinalhaven in 2009. Associated Press/Joel Page

The day before Indiana, 89, died last year at his home on Vinalhaven, the Morgan Art Foundation, which has represented his artwork since 1999 and controls the rights to the “LOVE” image, sued Indiana, his caretaker, Jamie Thomas, and another longtime representative, Michael McKenzie.

The counterclaims dismissed last week involve subsequent legal action filed by the estate against Morgan and include allegations that Morgan and its principal adviser, Simon Salama-Caro, didn’t pay Indiana the royalties he was due or provide him with proper accounting. Torres dismissed other claims that Morgan improperly fabricated reproductions of Indiana’s work, though he let stand a claim of unauthorized reproduction of a series of “LOVE” sculptures created in semiprecious stone.

The judge will allow the estate to refile the dismissed claims at a later date. James Brannan, the Rockland attorney who represents Indiana’s estate and is a party in the lawsuit, said his legal team will refile. In a statement Wednesday afternoon, Brannan said, “… (m)y attorneys plan to ask the court to allow us to replead the counterclaims with more detailed financial support. The estate certainly now has more information about the ways Morgan Art and Simon Salama-Caro breached their agreements with Bob Indiana, as well as other ways they took advantage of him.”

Luke Nikas, the attorney for Morgan, said the judge’s ruling vindicated his client.

“This is a significant victory for Morgan and my client. The primary accusations the estate has made in actual court papers and in quotes in several newspaper articles relate to allegations of underpayments. Jamie Thomas, Michael McKenzie, Jim Brannan have all been quoted publicly about underpayments or missing royalties,” he said. “All of those allegations were false and all of those allegations have been dismissed.”

Torres also dismissed most counterclaims McKenzie made against Morgan, including his request to suspend Morgan’s original lawsuit.

The dispute over who controls Indiana’s artistic legacy will shift into a Manhattan courtroom Aug. 14, when Torres hears oral arguments between Morgan and the estate, beginning at 11 a.m. Morgan, a for-profit art foundation, signed a series of contracts with Indiana beginning in 1999 that it says gives it the exclusive right to represent and reproduce Indiana’s artwork, including images involving his famous “LOVE” design, in perpetuity. Indiana’s estate contends ownership of those rights reverted to the estate when Indiana died at his home on Vinalhaven.

“Our view is that, legally, they are not entitled, and the contracts make that clear,” Nikas said. “Further, they have zero ability to do it. They don’t know anything about art, they don’t know anything about Robert Indiana and they don’t know anything about the art market.”

Meanwhile, the Indiana estate initiated new legal action in the Supreme Court of New York last week against McKenzie, asking a judge for an injunction barring McKenzie from producing any art associated with Indiana. The petition alleges McKenzie has breached various agreements and produced at least one duplicate “of a uniquely numbered work in a limited edition of Indiana’s painted ‘HOPE’ sculptures,” and says the estate “has reason to believe” McKenzie has either sold the duplicate or is trying to, the court filing said.

Of the estate’s request that he stop making Indiana art, McKenzie said in a brief email, “that is simply not even close to happening for so many reasons including criminal charges, breach of contract, lying under oath, destroying federal evidence, involvement in fraud, etc etc.”

According to the New York magazine ARTnews, McKenzie’s attorney withdrew from the case last week, citing “irreconcilable difference regarding strategy.” McKenzie said he fired his attorney. When asked, he did not say if he had hired a new attorney.

Also Wednesday, Brannan responded for the first time to a lawsuit Thomas filed in Knox County Superior Court on July 1 seeking $2 million from the estate to pay legal expenses. In a statement, Brannan alleged Thomas acted improperly as Indiana’s power of attorney, and said the estate’s legal response to Thomas’ claims will expose the fraud.

“It is unfortunate that Jamie Thomas chose to file these indemnification claims. The estate must now assert defenses and specific and detailed counterclaims resulting from Jamie Thomas’s breach of fiduciary obligations which he owed Robert Indiana. The bottom line is that Thomas’s misconduct as Indiana’s power of attorney makes indemnification by Indiana’s estate inappropriate,” Brannan said in a statement.

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