Lawsuit raises questions about Warhol authentication process

Foundation’s sales agent also worked for authentication board; president rejects claim decisions may have been made for financial gain


New York

An exposé published last month in the New York Review of Books (NYRB) sheds intriguing new light on the authentication processes applied to works by Andy Warhol. The article focuses on a lawsuit that began in April 2010, more than a year before the announcement in October 2011 that the Andy Warhol Art Authentication Board was to close. The foundation decided in September 2012 to sell off all the remaining works in its collection—estimated to be around 20,000 pictures, prints, drawings and photographs—through Christie’s.

The barely reported lawsuit was between the Philadelphia Indemnity Insurance Company and the Andy Warhol Foundation for the Visual Arts. The lawsuit and related court papers “raise the question of whether some of the decisions the board made about the authenticity of works were not based on disinterested scholarship, as the insurers may have believed, but were made for other reasons, such as financial gain or the perceived need to save face”, writes the critic Richard Dorment in the NYRB article.

The Art Newspaper put detailed questions arising from the article to Joel Wachs, the president of the foundation, who wrote in response: “This is simply another rehash of the same lies, distortions and half-truths that have been made in the past, all of which have been discredited and none of which has ever been proven in court.” He declined to comment further.

In April 2010, Philadelphia Indemnity filed a lawsuit against the foundation. The firm, which had been contracted by the foundation to provide liability insurance, refused to pay costs arising from a court case filed by the collector Joe Simon-Whelan in 2007 against both the Warhol foundation and authentication board for denying a picture he owned from the 1965 series “Red Self-Portraits”. (Simon-Whelan’s case subsequently collapsed.) Philadelphia Indemnity claimed the foundation had violated its contract by failing to notify the insurer—as its policy required—of “any specific wrongful act” committed by one of the foundation’s members, including the publication of material “with knowledge of its falsity”. The foundation countersued for full payment of its legal costs in the 2007 case—up to $10m.

The article in the NYRB focuses on a chain of incidents involving Warhol’s former assistant Vincent Fremont, which suggest that the foundation and authentication board were not operating independently, as is usually claimed. Vincent Fremont Enterprises (the only shareholder of which is Vincent Fremont) acted as a consultant to the board. Until recently, Fremont also worked for the foundation as its chief sales agent for paintings, sculptures and drawings, reportedly taking a commission of 6% to 10%. He was in a position to help the board “declare to be genuine a work that, as the foundation’s chief salesman, he could then offer for sale”, Dorment writes.

Fremont responds: “I have spent days and weeks of my life that I can never get back being involved with lawsuits. Please understand my fatigue of answering questions about issues in a lawsuit that came to a close some time ago. I have no comment.”

The Warhol board held meetings in secret. This is not standard practice for all authentication boards, but Ronald Spencer, a lawyer for the Warhol board, said in 2003 that it did not explain its decisions because to do so would provide “a roadmap for forgers”.

Nonetheless, minutes from some of its meetings were disclosed in papers filed in the Simon-Whelan suit (made public by its judge in 2011). The NYRB says these provide evidence that there were several occasions on which the board authenticated works it had previously denied were by Warhol. In his deposition in July 2010, Fremont admitted that he had sold as authentic works that the Warhol estate had earlier confiscated from the owner on the basis that they were not the work of Warhol. The sales were legitimate, he said, because the board had later declared the works to be genuine.

Dorment focuses on 44 paintings made by Rupert Jasen Smith, Warhol’s main off-site printer between 1977 and 1987. These works, some of which have apparently inauthentic signatures, were returned to the foundation in 1991 at its request, because they were not works by Warhol. But by October 2003, some had been deemed authentic, and were later sold by Fremont.

The 44 works were part of Smith’s estate when he died in 1989. In 1991, the Warhol estate asked Smith’s executor, Fred Dorfman, and his heir, Mark Smith, to hand over the works because “their releases might threaten the integrity of the art market and Warhol’s reputation”, according to a letter from the estate dated 25 September 1991.

Over the course of the next ten years, Fremont re-examined the works and found “less and less that was problematic—with the exception of the signatures… and some sizes of some of the work[s], but they became, to me, worthy of review”, according to his July 2010 deposition. He suggested that the works be reassessed by “an independent body—not by me, but by an independent body, being the art authentication board”. Nonetheless, Fremont continued to attend the board's meetings as a consultant.

In June 2003, the works were resubmitted to the board. The minutes show that the paintings were, once again, deemed not to be by Warhol because they “were created under false pretenses [and] the circumstances under which these were made [were] inherently dishonest”. Board member Neil Printz noted that “some signatures are bad”.

Despite this, the board agreed to discuss the works again in October 2003. By this time, the board had reversed its opinion and found that some of the works were authentic. It also decided to hold the remaining paintings for later review. It is not clear how the board came to this decision, since the minutes for the October 2003 meeting are missing. It is also not clear which paintings Fremont sold, or to whom, or whether he provided a full account of their history. It is known that the works were not minor prints, but paintings on canvas including famous images such as a 1986 “Fright Wig” self-portrait, Dorment says.

Philadelphia Indemnity and the Warhol foundation settled out of court in October 2010. A year later, the foundation announced its decision to close the authentication board. This was to enable more money to go towards the foundation’s charitable goals, Wachs said in October 2011. “It is a matter of priority, and our responsibility to Andy's mission. Our money should be going to artists, not lawyers,” he said.

The Philadelphia dispute has since revived. In December 2012, the insurer’s request for a summary judgment to dismiss the foundation’s countersuit was denied. The case is set to go to trial: lawyers for the insurance firm say that it is ready “with other, unspecified defences to fight [its] claims”.

Meanwhile, the foundation continues to work on Warhol’s catalogue raisonné. Wachs said in 2011 that it is “an effort to look at all the work Andy made, not just the few works people submit for authentication. It is much more comprehensive, and it is public. The only time authentication decisions are [made] public is when someone is not happy and they make a stink about it.”