Art law Controversies USA

The law vs scholarship

Taking academics to court over authentication issues is eroding independent expertise

Drawings attributed to Francis Bacon will be discussed at a seminar in London next month: the owner’s side has offered legal immunity to participants (Photo: Ulf Andersen/Getty Images)

The news that a leading scholar felt constrained by legal advice from giving a full opinion on a group of drawings attributed to Francis Bacon highlights a growing fear among experts that they might be sued for giving their opinion.

On the advice of lawyers, Martin Harrison, who has published widely on 19th- and 20th-century art and is the editor of the Bacon catalogue raisonné, will only go as far as saying that these drawings, which some suspect are fakes, are “unlike any authenticated works”. An open seminar on these drawings is due to be held at the Courtauld Institute on 25 January.

A similar problem arose concerning a group of newly discovered “Degas” plasters last year. Opinion is divided over their authenticity, but a number of those expressing doubt, including the Degas scholars Richard Kendall of the Sterling and Francine Clark Art Institute in Massachusetts and Patricia Failing of the University of Washington, decided not to discuss the matter publicly.

“Many experts are reluctant to give their opinion in public because of the threat of legal action, which is in fact quite remote,” says Karen Sanig, the head of art law at Mishcon de Reya, London. “This perception is having a freezing effect on scholarship. It has [become] increasingly obvious as a problem over the past six months, partly due to the coverage of authentication issues in the press.” With the prices of 20th-century art rising so strongly over the past decade, it is little surprise that these disputes have become so heated.

Litigiousness

In New York, the art lawyer Ronald Spencer, of Carter, Ledyard and Milburn, agrees with Sanig. “This is a very serious problem. Specialists are often academics earning $100,000 [or less] a year and they can’t afford litigation they are fearful of being a defendant in a lawsuit, even if they should win.” He admits that there are more of these cases in the US: “It’s a cliché, but we are more litigious here.” He says that the US system, whereby the plaintiff does not have to pay the legal fees of the successful defendant, encourages this. “In England,” says Sanig, “it would be hard to bring a successful claim against someone who states their honest opinion in a public forum, in good faith. In the US, however, there may be a basis for a claim that doesn’t exist in the UK. Nevertheless, this does not mean that a claim would be any more successful than in the UK.”

What are the grounds for such actions? Owners seeking authentication of their works are increasingly likely to go to court, sometimes claiming huge damages, if they do not get a stamp of approval. Possible grounds for a claim include product disparagement, negligence, defamation or even fraud). In the US, plaintiffs have taken authentication boards to court under anti-trust laws, accusing them of conspiring to exclude authentic pieces from the market in an attempt to increase the value of their own holdings.

This was how Joe Simon-Whelan attempted to get the Andy Warhol Art Authentication Board to reverse its rejection of his 1967 “red” Warhol Self-portrait. Simon-Whelan withdrew after running out of money: the board has now also announced that it is disbanding early next year, because of the enormous cost of lawsuits. For the same reason, the Pollock-Krasner Foundation disbanded in 1995 after completing the catalogue raisonné of Jackson Pollock’s work, but this has not prevented it being sued a number of times over disputed works.

Compiling catalogues raisonnés is another source of potential risk. The Parisian curator Marc Restellini abandoned preparation of the catalogue of Modigliani’s drawings after a court challenge by a collector whose two drawings were excluded. Nancy Mathews, president of the Catalogue Raisonné Scholars Association, also refers to threats. “Issuing a negative opinion can expose a scholar to the anger of the owner,” she says. “In the US, this can prompt the owner to take legal action whether it’s justified or not—it’s emotional—and cause headaches for the scholar even if it has no real legal basis.”

Most of these suits fail. However, says John R. Cahill, art lawyer at Lynn and Cahill in New York: “Even a baseless lawsuit costs money to defend and… is having a chilling effect on a number of foundations and scholars.”

Even keeping silent can be dangerous. Recent cases have seen owners of works attacking specialists and boards for not giving an opinion. The owner of Jean-Michel Basquiat’s Fuego Flores, 1983, sued the artist’s authentication board, demanding that it either reach a decision or pay damages of up to $5m. After the lawsuit was dismissed, the Basquiat Authentication Com­mit­tee ruled the work genuine.

Many fear that individuals may soon fear speaking openly in public platforms, such as in symposia, and institutions are also concerned. Sanig says that larger museums in the US appear to be stopping their curators from giving opinions on authentication matters. However, this can be resolved by seeking a disclaimer from any potential suit or an indemnity for legal costs from an interested party, in order to further academic debate.

How can a specialist guard against the threat of lawsuits? “In the US, the law is such that an owner of a work of art is entitled to take you to court if you offer an opinion that is not specifically requested by him/her. Authors writing catalogues raisonnés learn this early on, so it’s always a part of proper procedure to offer opinions only to the owner and only when requested,” says Mathews.

Auction houses have pages of small print at the back of their sales catalogues, plus teams of lawyers, and dealers generally outline their contractual obligations in their bills of sale. None of this has prevented a number of high-profile lawsuits. The recent case brought against Christie’s over Leonardo’s rediscovered work on vellum, La Bella Principessa (The Beautiful Princess), highlighted the vulnerability of auction houses accused of breach of duty and negligence (Christie’s won on the basis that the case was brought too late, but an appeal is pending). “A lot of the problems arise because there is no established international regime for authentication or due diligence generally in the art world. Many rely on the opinion of few experts, and this makes them potentially vulnerable or too powerful,” says Sanig.

When art history disputes do end up in the court, it is often the least appropriate place for them. “The law courts, certainly since the Ruskin vs Whistler trial in 1878, have often been little more than a vehicle for the judiciary to parade its ignorance,” says Harrison. Manifold cases have seen judges dismiss expert opinion: for example, in the case of an Alexander Calder work, the judge declared the piece authentic, ignoring the opinion of the leading Calder dealer and the Calder Foundation, saying it was not a forgery but mis-assembled. The mobile, which cost the owners $500,000, is not in the Calder catalogue raisonné and reportedly languishes in a basement, now considered unsellable.

As a result even flagrant fakes are not denounced, meaning that innocent people could be deceived. The authors of this article empathise with Eugene Thaw, who, when asked why he would not specify reasons for doubting a Pollock attribution, said: “It would land me in court.”

For further articles on authentication issues, including comment pieces by art law experts Peter R. Stern and Norman Palmer, see our December print edition

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Comments

31 May 12
16:59 CET

MERYLE SECREST, WASHINGTON

Classic examples of thus issue go back decades. In my biography of Joseph Duveen, the art dealer, I cite the case of an American dealer who claimed to have a genuine Leonardo, "La Belle Ferroniere" in the 1920s. Duveen said the original was in the Louvre, was subjected to a lawsuit and had to setttle out of court. The U.S. painting was subsequently discovered to be an early copy. it finally sold fairly recently for a modest sum, not the many millions that would have been the case. Duveen paid dearly for his frankness.

16 Dec 11
15:37 CET

VICTOR H HALL, JACKSONVILLE

I don't have a problem with the " expert" opinion, but what I have a problem with is when science states that the work is what the proposal has aspired and the so called expert refuses to even take a look at the science. I asked myself, how can a civilized nation put someone to death based on forensics, yet an " expert" may not respond to the same forensics for authentication of a work of art? I have been trying to get a Martin Johnson Heade painting authenticated and have recently discovered none ambiguous documentation that supports authentication if not authenticate the work. It is in fact one of the greatest works by Martin Johnson Heade conceptionally that he painted and the science supports this work, yet it is not authenticated.What have we turned into in this great country that we don't marvel at our discovered treasures and are not happy when someone " makes it". It is the American way! There is no room in my heart for arrogance and anyone that doesn't respect science.

9 Dec 11
19:46 CET

JANE BAGLEY, BRISTOL

As the art newspaper pointed out, authentication procedures, which operate in a public forum, are far less likely to be successful in a lawsuit. Therefore the chances of being launched are less susceptible. History has shown any market with such enormous gains, such as the bond or art markets, attracts the worst sort. The opacity and complexity of the art market leaves it open for the sort of crimes which are usually committed in such conditions. The art market has no regulation, nor populist political pressure. By opening itself up to scholarly debates and offering explanations for their decisions, the likelihood of lawsuits and suspect behaviour greatly diminishes. The Warhol Authentication Board refused to do this, therefore its opinions should not carry any weight.

8 Dec 11
22:35 CET

IAN JOHNSON, WHANGAREI NEW ZEALAND

very interesting article.I have a painting which the "expert" refuses to say is OR isn't by the artist concerned. However a curator from a VERY respectable institution says it is by the artist concerned!! Curator has already published 3 or 4 detailed articles and a book about the artist.Expert seems to have published NOTHING, yet is doing a catalog raisonne. What if anything can I do about this stalemate!! Expert has told me that it may never be resolved? I thought experts were supposed to be just that!!! Picture concerned if authenticated by expert would have a 6 figure market value!! Ian Johnson.

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