Top London art lawyer on common issues with fakes and authentication

Pierre Valentin suggests that the decisions of expert committees should not be beyond the reach of the law

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Auction houses will generally decline to auction a work of art if it does not feature in the artist’s catalogue raisonné, which is generally perceived to be the definitive and exhaustive catalogue of an artist’s work. The inclusion of a work of art in the catalogue raisonné serves to authenticate the work; if it is not included, it suggests that it is not authentic. Similarly, auction houses will often decline to auction a work of art if it is not approved by the committee recognised by the market as holding ultimate authority over the authentication of an artist’s work. Such committee may either be appointed by the holder of the artist’s moral rights, or it may be self-proclaimed. It often holds some or all of the artist’s archives, and includes one or more experts on the work of the artist it represents.

When an artist dies, the holder of his moral rights is generally regarded as the definitive authority on whether a work is by the artist or not. Moral rights may vest in the spouse, the children or a personal representative of the artist. The two relevant moral rights in this context are the right to prevent false attribution, and the right of paternity, which, in the UK, are expressly recognised in the Copyright, Designs and Patents Act 1988. The right to prevent false attribution is to be able to stop a work of art from being falsely attributed to the artist; the right of paternity is the right to be positively identified as its author.

Moral rights are not perpetual. The right of paternity lasts as long as copyright, currently 70 years from the date of the artist’s death; the right to prevent false attribution, on the other hand, expires 20 years after death.

Moral rights have a longer tradition in continental Europe, where they have been recognised since the 19th century. The artist’s heirs inherit the custodianship of his/her moral rights and this generally lasts as long as the copyright in the artist’s work. In contrast, limited moral rights legislation was only enacted by several States in the US as late as the 1980s. At federal level, the Visual Artists Rights Act adopted in 1990 now regulates the right of paternity in works of visual art such as paintings, drawings, prints, sculptures and photographs. The right of paternity includes that of preventing the artist’s name being used as the author of a work he/she did not create. Under the Act, the duration of the right of paternity for works created before 1 June 1991 is the life of the artist plus 50 years: moral rights to works created on or after 1 June 1991 expire on the artist’s death.

In the case of artists active in the second half of the 19th and throughout the 20th centuries, the market has come to view one or two experts, or groups of experts, as the leading authorities on particular artists’ work. Although the authentication of a work of art is not the sole prerogative of the holder of the artist’s moral rights, holding such rights will give him/her precedence over other experts. Where moral rights have expired, the inclusion of a work in the artist’s catalogue raisonné and the opinion of the expert with access to the artist’s archives will be paramount. Auction houses and art dealers are generally unwilling to sell works of art without the blessing of the prime expert: if they do, they may risk having to cancel the sale and return the purchase price to the buyer, sometimes without recourse against the seller.

In most cases, the refusal by the prime expert to authenticate a work of art has the drastic consequence of rendering it worthless. The owner may find other experts who say the work is genuine; he may be able to provide good provenance, or even conduct scientific analyses to demonstrate that the work is by the artist. Nonetheless, if the prime expert refuses to agree with the attribution, his opinion will make the work almost unsaleable.

A dispute has recently arisen between the Warhol Authentication Board and owners of works of art purchased as original Warhols (The Art Newspaper, No. 140). The Board has refused to authenticate the works, sparking claims that its refusal is motivated by reasons other than authenticity (or lack thereof). Owners have voiced their anger at the Board’s decisions, claiming in some cases that the Board authenticated a work and then changed its mind, and complaining that the Board would not give reasons for its decisions. It has been reported that the Board declines to share its reasoning because its decisions are often based on subjective criteria that are not susceptible to proof, and it maintains that, if reasons were given, forgers would find out how to fake Warhol works. But this absence of evidence is precisely why owners resent the unsubstantiated opinions issued by the Board and other committees representing deceased artists. However, in certain circumstances, the Warhol Authentication Board will give reason for its opinion. The Board does not say when those circumstances arise but it seems that the serious threat of a lawsuit by the angry owner of a rejected work will deliver results. Indeed, last month, the Board wrote to collector Joe Simon to give its reasons for rejecting a silkscreen painting in the wake of Mr Simon’s threat to take the Board to court.

The refusal to provide a reasoned opinion is not the only complaint: the lack of transparency in the authentication process can raise suspicions, and artists’ committees are generally unregulated. Some have to contend with conflicts of interest, for example where committee members have ties with collectors or dealers in the artist they represent. It has also been alleged that artists’ committees may have an interest in limiting the number of works by the artist available on the market in order to boost the value of works held by their members or an affiliated body.

In their defence, artists’ committees argue that they have their reputation to preserve and they will not therefore accept or reject a work of art without good reason. They also point out that, like other experts, they may incur liability for negligence or other torts if they do not follow a proper methodology when assessing whether a work is authentic or not. The row over works by Andy Warhol is not isolated. Other examples include the committee assembled by the widow of artist Francis Picabia, which battled with an art collector following its refusal to authenticate a series of collages; and the Van Gogh Museum, criticised for failing adequately to support its opinion that a painting representing two diggers was a genuine Van Gogh.

What possible recourse is there against the expert?

An aggrieved owner, unconvinced by the negative opinion of the prime expert and in possession of other expert opinions supporting his view that the work is genuine may be tempted to seek redress through the courts.

Under English law, there are several possible heads of claim, one of which is slander of goods. An action here will lie where the defendant maliciously publishes a false statement on the claimant’s property and where the publication causes the claimant to suffer special damage. The claimant must show that the statement was both false and malicious: in order to show malice, the claimant must prove that the defendant had dominant improper motive to cause him injury.

The owner may also have a claim for negligent misstatement, which is the making of an erroneous statement (often a professional opinion or advice) to another person in circumstances where the giver of the statement owes a duty of care to the recipient of it. In order to succeed, the owner/claimant must prove both that the statement was false and that it was made negligently. Therefore, in order to avoid liability for negligence, an expert must apply his expertise diligently: he may be liable if his opinion proves to be wrong or if he applied his expertise badly, for example, in failing to draw the proper conclusions from comparative analyses, or if his reasoning was flawed. The claimant must also prove that the defendant owed him a duty of care. An artist’s committee may have assumed a duty of care, although this is by no means certain, and it is important to appreciate that the duty may be expressly disclaimed by the committee either before or at the time the opinion was expressed.

Fraud is another possible head of claim, albeit a tough one to prove.

If the expert committee is a public body and therefore subject to public law, its decisions may be susceptible to judicial review. In the UK, a court may not overturn a decision taken by an expert committee simply because it disagrees with it. Instead, the Court will consider whether there has been any illegality (ie; whether the public body has misdirected itself at law), whether the decision was irrational (ie; whether the decision was so outrageous that no reasonable person would have made it) or whether there was some procedural impropriety. It is far from certain whether the English courts would accept jurisdiction over the decisions of a public body authenticating works of art: this would depend, in part, on whether such body performs a public duty and whether the rights of citizens are affected by its decisions. Courts may be inclined to exercise their powers of judicial review if they find that decisions by such bodies are not otherwise open to challenge. A parallel may be drawn from the decision of the Court of Appeal to allow judicial review over a decision of the Panel on Takeovers and Mergers (R. v Panel on Takeovers and Mergers, ex-parte Datafin plc and another [1987] QB 815).

In the US, owners have claimed violation of anti-trust laws on a few occasions, for example the anti-trust allegation made against the Pollock-Krasner Authentication Board, the Pollock-Krasner Foundation, Sotheby’s and Christie’s (Kramer v Pollock-Krasner Foundation, Pollock-Krasner Authentication Board, Inc, Sotheby’s, Inc and Christie, Manson & Woods International, Inc, 890 F. Supp. 250 [S.D.N.Y 1995]). Here, the claimant submitted that there was an anti-trust conspiracy designed to exclude authentic Pollock pieces from the market in an attempt to increase the value of Pollock paintings owned by the Foundation and auctioned by Sotheby’s and Christie’s.

The court dismissed the claim because the claimant failed adequately to identify the relevant market where the anti-trust violation had allegedly taken place. Furthermore, the court considered that the claimant had failed to prove that the auction houses had participated in a conspiracy, noting that they had good reasons for declining to offer paintings for sale that might well have proved to be forgeries. The anti-trust claim is ingenious, but it is probably too far-fetched to have any real chances of success.

It must be said that aggrieved owners face a difficult task. Each head of claim places a heavy burden on the claimant to make good the contention that the prime expert got it wrong. If it is accepted that decisions on attribution and authenticity are expressions of opinion, then the English courts are unlikely to overturn the expert’s opinion, unless the claimant can show that it is irrational: but the claimant may be unable to do so unless the expert has disclosed the reasons for his decision—and many experts do not.

Other European legal systems consider experts’ statements on attribution and authenticity as binding: they are treated more as statements of fact than expressions of opinion and the courts are more willing to challenge the expert and call on their own experts to render judgment on the authenticity or attribution of a particular work.

In 1995, Christie’s declined to include a painting by Kees Van Dongen in an auction because the Wildenstein Institute had indicated that it would not be included in its forthcoming catalogue raisonné. The owner started proceedings against the Institute in the French courts, as he had bought the painting a few years earlier with a certificate of authenticity from Paul Petridès, the acknowledged expert.

The French court appointed two independent experts, who concluded that the painting was genuine. The court held that the Institute could not refuse to include the painting in its forthcoming catalogue raisonné unless there were new material changes in connoisseurship: indeed, if the painting were not included in the catalogue raisonné, the Institute would not be able to claim that its catalogue was an exhaustive compilation of the artist’s work (as it had done). The court added that the author of a catalogue raisonné would be liable if he negligently or intentionally excluded a work from the catalogue, despite the contrary opinion of acknowledged experts (Duménil v. Wildenstein Institute and Others, Tribunal de Grande Instance de Paris, 16 September 1999, unpublished). Since then, the Wildenstein Institute has been sued by another collector in the French courts, this time for refusing to include a Modigliani drawing in its forthcoming catalogue raisonné.

It is arguable that expert committees hold too much power over economic interests to remain unregulated for much longer. Any such regulation might be imposed by statute; alternatively, committees might subject themselves to self-regulation. One would expect any regulations to require that members of the expert committee be acknowledged experts in their field, and, to avoid any perceived conflict of interest, neither the committee itself, nor any of its members, should have an economic interest in the market for works by the artist. The committee should publish a clear methodology for authenticating works by the artist and provide reasons for any decision to refuse authentication by reference to the methodology. Moreover, the committee’s decisions should be subject to review by the courts or by an independent supervisory body.

The writer is the head of the Art & Cultural Assets Group at Withers LLP, London

Originally appeared in The Art Newspaper as: "Trust me, this is a fake"

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