In some ways, the crux of the case is determining how many editions of Gazing Ball (Centaur and Lapith Maiden) (2013) actually exist. According to Moretti, Zwirner willfully mislabeled the editions of the Koons sculptures. Moretti claims that there are four editions, not three. The plaintiff states that the first casting of the piece was exhibited at the gallery in 2013. Further, they assert that the next fabrication, which occurred in 2015, is the “true” second casting of the work that should have been Moretti’s.
Instead, the work was labeled as the third edition by Koons, who donated the piece to a charity auction at Sotheby’s in 2015. The piece failed to sell, damaging the work’s value before Moretti’s edition had been fabricated. Moretti also charged (though without evidence, according to the ruling) that another edition of Koons’s sculpture was fabricated and sold to a third party that same year. Eventually, another was fabricated and labeled edition No. 2, bringing the total number to four—a purported violation of the terms of the agreement which provided that only three would be fabricated.
Zwirner flatly denied the production of four editions. Further, the gallery said that the work exhibited in 2013 was not an edition but rather a “prototype” for the Koons cast that was not for sale, is not for sale, and is not part of the edition of three. Further, the work that Koons fabricated and labeled as “No 2 of 3” is waiting to be delivered to Moretti and that, as the artist, Koons is able to decide which fabrication is which edition. In allowing the case to proceed, the judge noted that these competing timelines are “not ripe for adjudication at the pleading stage” and that the sequence in which the works were fabricated are a matter of fact that needs to be determined by evidence, not a matter of law.
The Judge also allowed claims centered on the dimensions of the work to proceed. Though Moretti charged that the final dimensions did not conform to those specified in the the agreement, Zwirner said that they informed Moretti about the difference and that they are so minor as to be unimportant. Refusing to dismiss the claim, the Judge invoked the doctrine of perfect tender which allows a buyer to “reject goods if they fail to conform to the contract in any respect,” noting such alterations may particularly dampen an artwork’s value.