Fakes and copies
Victims of forgery are ‘left in limbo’
Recent high-profile trials mean collectors are wondering where to turn if they think they have fakes
By Riah Pryor. Market, Issue 238, September 2012
Published online: 06 September 2012
Art forgeries are once again in the news and getting more attention from law-enforcement agencies worldwide. But recent cases, including those of the German forger Wolfgang Beltracchi, the FBI investigation into art sold through the defunct New York-based Knoedler gallery, and the forgery of Indian Progressive pieces by the UK faker William Mumford, are leaving victims unsure of the legal position of works not examined in a court of law.
The problem is that few of the fakes identified in forgery cases are ever recovered, and if they are, may not be considered by a judge as part of a trial. In the case of Mumford, just 40 of the 900 forgeries thought to have been made were brought before the court. Only 12 of the 58 fakes that police believe were made by Beltracchi were examined in his trial in Cologne in 2011. So what about the rest? And what can you do if you think you have a forged painting? At the moment, it seems it is up to the victims to try to extract reparations.
“I’m in limbo,” says one buyer of works by the late Indian artist Francis Newton Souza. He bought two pieces on eBay which he now fears are fake after reading about Mumford’s recent conviction. Experts at two London auction houses have confirmed “stylistic inconsistencies”, but refrained from calling the works forged, leaving him unsure of how to proceed. In the US, the Knoedler gallery and its former director, Ann Freedman, are facing a third civil lawsuit. Businessman John Howard decided not to wait for the outcome of the FBI investigation. He is taking action over an alleged fake Willem de Kooning work which he bought for $4m.
Weighing the options
“If 200 forgeries are seized by the police, most prosecutors want to simplify this by bringing charges for just ten to 14 of the works. It’s about getting the best evidence in front of the judge,” says Vernon Rapley, the former head of Scotland Yard’s Art and Antiques Unit. “That’s why the ‘Bolton forger’ Shaun Greenhalgh was charged under common law with conspiracy. It allows for numerous objects to be included under the same charge.” In 2007, Greenhalgh was found guilty of forging works, including the Amarna Princess the Bolton museum bought for £440,000. After the verdict, the victims received compensation and the judge was able to release the fakes to the police for “educational and exhibition” purposes.
Time and money limit the number of forgeries investigated. As the art market becomes more international, so too does the geographical spread of victims. The situation is further hampered by statutory limitations on the amount of time between a work’s purchase and its identification as a fake, and the date a case is brought to court. If police seize an object during an investigation, but the piece is not included in the charge, the victim can recover the work but is only left with civil remedies.
The problem is that many owners do not realise a work could be suspect until the trial hits the headlines. “When an owner has a painting which appears to have been sourced from the same place, the judge’s decisions from the initial trial can be used in secondary proceedings,” says Ronald Spencer, an art lawyer based in the US. But, although law enforcement agencies acknowledge an increase of enquiries after a trial, few become secondary criminal proceedings as police need to balance the cost of bringing the case against the perceived public interest of a trial.
While civil lawsuits in Europe have sprung up in the wake of the Beltracchi case, civil lawsuits in the Knoedler case in the US pre-date the FBI’s investigation. This is a monetary decision, says New York lawyer Nicholas Gravante of Boies, Schiller and Flexner, the firm representing Knoedler’s former director, Ann Freedman. “People filed lawsuits rather than waiting until the end of an FBI investigation because the [FBI] is principally focused on [Glafira] Rosales [the Long Island dealer who sold the work to the gallery] and others, not Freedman, and it’s doubtful that anyone would be able to collect money from Rosales.”
The fate of a fake
Art seized during an investigation is treated as evidence, although what happens afterwards varies. In France, Switzerland and Australia court orders can be made to destroy works. In the UK and US, the works are held by Scotland Yard and the FBI, respectively. But, Spencer says, “what happens to evidence [in the US] can vary from case to case.”
What to do with fakes is one of the “big questions” facing artists’ estates, says Jack Flam, the president of the Dedalus Foundation. He has seen works rejected by the foundation reappear on the market. “We’ve not had the opportunity to destroy a piece that’s been ruled fake. In the US, property is king.”
For more art market news and analysis, see The Art Newspaper 2, the pull-out section in our new-look September issue (on sale now), or subscribe to our digital edition
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