Art law USA

New evidence uncovered in Warhol Foundation lawsuit

Lawyers for the plaintiff say disputed portrait was considered authentic by the artist himself

The federal lawsuit in which a private collector is suing the Andy Warhol Foundation and its subsidiary Art Authentication Board is about to take a dramatic turn. Lawyers for plaintiff Joe Simon-Whelan have uncovered evidence that the 1964 Warhol self-portrait that he owns, and which the Authentication Board has twice rejected, was considered authentic by Warhol himself.

According to Seth Redniss, a New York-based lawyer representing Simon-Whelan, an identical red silkscreen self-portrait — from the same series as Simon-Whelan’s — was signed personally by Warhol in 1969 and dedicated to his Swiss dealer Bruno Bischofberger who owned it at the time. The painting was included in the 1970 catalogue raisonné of Warhol paintings and works on paper, 1960 to 1967, that was compiled by art historian Rainer Crone in collaboration with the artist, and was reproduced in colour on the dust jacket.

The painting passed through the hands of Heiner Bastian and Erich Marx, and in 1999 was sold by Anthony d’Offay to Charles and Helen Schwab of San Francisco. But while in their possession the Authentication Board twice rejected the painting, in 2003 and 2005, and d’Offay was obliged to repurchase it from the Schwabs. Simon-Whelan also had submitted his work from the same series to the Authentication Board in 2003 and it, too, was rejected. He resubmitted it in 2004 with additional supporting material, but the board upheld its earlier denial.

Meanwhile, the ex-Bischofberger self-portrait — which Warhol chose as the cover image for the 1970 catalogue raisonné that he oversaw — was dropped from the 2004 catalogue raisonné overseen by Swiss dealer Thomas Ammann and the Warhol Foundation. The Authentication Board claims that although the painting was signed, dated and dedicated by Warhol, the work and others in the silkscreened series are not genuine Warhols because, even though they made use of acetates provided by the artist, they were produced without the artist’s direct supervision and by commercial printers with whom he never worked. However, members of Warhol’s circle and other experts say the artist adopted industrial production techniques that challenged traditional concepts of authorship.

At a 1986 Warhol show at d’Offay Gallery in London, Warhol signed a copy of the 1970 catalogue, writing directly over the dust-jacket image of the painting that 17 years earlier he had signed and dedicated. Simon-Whelan’s lawyer, Redniss, believes that the evidence “definitively establishes that Warhol knew about Joe Simon-Whelan’s painting and the series it was from and that he considered it an authentic work.” He plans to introduce the evidence in support of Simon-Whelan’s case, which was filed in Federal District Court in Lower Manhattan in 2007.

"At the beginning I truly believed it was going to be a simple formality authenticating my Warhol self-portrait. However, over the past eight years it has developed into a much more significant issue regarding art authentication," says Simon-Whelan. Ronald Spencer, a lawyer with the New York firm of Carter Ledyard & Millburn, who represents both the Authentication Board and its parent Warhol Foundation, declined to comment.

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