What price a professional opinion in the art world?—the legal aspect
Despite the notorious and much criticised relationship in the early part of this century between Joseph Duveen and Bernard Berenson, in which cash was exchanged for attributions, there are still no legal constraints on whether a scholar may collect a share in the sale proceeds of a work of art in return for a favourable attribution.
Throughout the hearing of the Hartt case (see this page), and in the judgment, there were continued references to the dishonourable and deceitful conduct of Professor Frederick Hartt in concealing his financial interest in the anticipated sale proceeds of the modello of Michelangelo’s “David”.
The judge, Mr Justice Morland, stated that “an art historian acting honourably should know perfectly well that it was wrong to take a percentage of the valuation of a work of art in consideration of his attribution, particularly if that percentage and the existence of a payment by a percentage was concealed. The reason is obvious, that museum directors and potential buyers would assume that the scholar’s attribution was made disinterestedly and because of that assumption will place greater weight on that attribution”.
Other experts called as witnesses also confirmed that such an arrangement was quite wrong. Both Professor Martin Kemp, at that time a trustee of the Victoria and Albert Museum, and currently chairman of the Association of Art Historians in the U.K. and Jack Baer, a St James’s art dealer for over forty years, acknowledged that it would be acceptable for an art historian to take an agreed fixed consultancy fee “but both of them”, stated the judge, “were amazed at Professor Hartt’s action in entering into an agreement to take a percentage from the eventual sale price of the statuette, and to conceal it ...”.
Mr Justice Morland confirmed that “the fact that there are no cases of art historians acknowledging ... a practice of payment, by way of percentage on the eventual sale price of the work of art attributed, is because art historians know perfectly well that it is a disreputable practice which would substantially damage their reputation if it became public”. Because of this deceit, libel damages awarded against The Independent newspaper in publishing articles (suggesting that Professor Hartt had acted dishonestly or recklessly in making the attribution and that he had not assessed the evidence objectively) were reduced to a nominal £7,500. This is a massive reduction on libel damages which can exceed £1 million in the English courts, when a person’s reputation has been substantially damaged by such an article.
Although almost everyone involved in the case claimed to be horrified by Professor Hartt’s action, and although the judge classified his conduct as deceitful, no evidence was adduced that there were, in fact, any legal constraints on how an art historian should conduct his business, especially when giving attributions.
Reference was made to A Code of Ethics for art historians and guidelines for the professional practice of art history introduced in 1973 by the College Art Association of America. This stated that art historians should “avoid the suggestion of self interest by establishing, in advance, fees which bear no relation to the monetary value of any work of art in question, and which do not otherwise relate to the monetary effects of any research, investigation, opinion or statement by the art historian”.
The code has no legal force, however; it declares itself to be an “honour code”, it is not legally binding on art historians in the U.S.A., let alone in the United Kingdom or France and, indeed, in the first recital to the code the CAA Committee specifically declares that it “is not a judicial committee with power to censure”.
The Hartt case should not be misinterpreted, therefore, as declaring a set of legal requirements in respect of art historians, even though it appears that the consensus of opinion of all the relevant witnesses and the judge was that Professor Hartt had acted unethically in “peddling” the attribution and concealing his financial interest.
Nevertheless the Hartt case precipitated a fresh set of guidelines introduced by the U.K. Association of Art Historians. The guidelines restate rather more emphatically a number of matters included in the CAA guidelines:
• a scholar in undertaking any consultancy work should remain alert to any conflicts of interest in their relationship to their employer
• a fee charged on behalf of the scholar’s institution (or an appropriate donation to the institution) may be considered preferable to the charging of a personal fee
• scholars should avoid assuming any financial interest in any items on which they are expressing opinions
• they should not enter into agreements which link publication of any items to the subsequent value or sale price of those items. Where such interest is unavoidable (e.g. in the case of any object already in the possession of the scholar) it shall be openly acknowledged.
• conflict of interest with the collecting policies of their own institution should be scrupulously avoided.
The current Museums Association code of conduct for Museum curators also makes the position quite clear:
“A curator must be fully aware that to undertake identification and authentication outside his duties for personal gain with the intention of establishing the market value of an object is fraught with danger. If it is to be done, a curator must declare such intention beforehand to his governing body and be at pains to observe the highest standards of academic objectivity”.
It seems that the art trade takes a very dim view of giving an attribution in return for a share in the ultimate sale proceeds but, again, and unfortunately, such guidelines can have little direct legal effect.
First, they are not applicable on any person who has not agreed to be bound by them. Second, even if an art historian were a member of the relevant association it does not mean that they, as a member, are automatically bound, contractually, by the guidelines.
Finally, even if it is accepted that an art historian is committed to these guidelines, that does not necessarily mean that someone else (e.g. a buyer of a work of art) then has a claim directly against the art historian. Any contract the art historian may unwisely enter into would usually be with the owner of the work of art—and no contractual obligation would be owed directly to the buyer or, indeed, to any third party who may later acquire the work of art even if relying on the attribution.
The Museums Association recently expelled Derbyshire County Council for proceeding with the deaccession, by way of sale, of nineteen art works including a painting by L.S. Lowry and two Rembrandt prints. The deaccessioning was contrary to the Code of Practice for Museum Authorities established by the Museums Association (of which Derbyshire County Council was a member). However, the mere fact that the Council had contravened the code of conduct did not mean that the sale was, by reason of that contravention, illegal, void or preventable by Court action.
A clear line needs to be recognised, therefore, between the ethics required of a particular professional person, laid down, for instance, in a “code of conduct” (which may not be enforceable), and specific legal obligations which are enforceable, for instance, by the relevant professional body. But is there any real need in the art world for professional obligations to be established and who, if anyone, needs to be protected?
Other professional bodies do have stringent legal requirements, but for specific reasons. An estate agent in Great Britain, for example, can be barred from carrying on business by order of the Director-General of Fair Trading if he fails to disclose, to a prospective purchaser, a financial interest in a property which his firm is selling or where the estate agent, himself, makes a private offer for a property consigned by the owner.
Further, English law has, since before 1275 AD, declared “champerty” as illegal. This comprises any arrangement whereby one person gives assistance or encouragement to another person in a legal action in return for a share in the proceeds or subject matter of the litigation. The most obvious aspect of this is a lawyer agreeing to prosecute a legal action in return for a share of the damages should the claim be successful.
Although such an arrangement is acceptable in the USA, there is currently considerable debate in the English legal profession as to whether contingency fee arrangements should be allowed; it is argued that such arrangements may well assist poorer plaintiffs to take on large corporations without the fear of being intimated by the massive legal costs involved. On the other hand, some lawyers are concerned about a welter of purely speculative legal actions, with no real merit, being issued.
However, there is one critical difference that can be argued in the position of a lawyer, as against that of an art historian, each acting on a contingency fee basis. Although a lawyer will naturally wish to pursue a client’s claim as vigorously as possible (especially if he were to have a stake in the outcome), the ultimate decision as to whether the claim is successful or not will depend on a third party, namely the judge (or jury). At the same time, there is, in any case, a lawyer on the other side pursuing counter arguments at least as vigorously; the fact, therefore, that a lawyer may be acting on a contingency basis should not affect the outcome and justice of the final decision.
An art expert is in a different position. For almost every important artist, there are a number of art historians (sometimes as few as one or two), who are acknowledged experts on the relevant artist’s work—the preparation of a catalogue raisonné can and does take decades and comprehensive research into an oeuvre may take a lifetime.
It is a truism to say that the value of a work of art depends on its identity, namely the artist and, to a lesser extent, its provenance. There can be no absolute proof regarding the authorship of a work of art unless the artist is still living and authenticates it in person (but even that may not be conclusive—Utrillo often signed work by friends and his mother sometimes helped out signing his own work). It follows that the art trade often relies heavily on a statement by the acknowledged expert on a work of art—this can be decisive in giving authenticity to the work and sometimes increasing its value many times. Any such attribution can and does change the perception and value of a work of art—and this is wholly different from almost all other professions. An opinion by a doctor giving a diagnosis does not change the patient nor does it eradicate the patient’s condition.
It is quite obvious that art experts with a singular knowledge of an artist whose work may fetch millions at auction, if authentic, but only a few thousand pounds if a studio piece, may naturally come under a certain amount of pressure to give a favourable attribution in “difficult” cases.
Art historians nevertheless are men of the world; it is only right that they should be able to turn to account their knowledge and judgement, laboriously acquired over many years, and, if they do give a sound and reasoned opinion, should they not receive some value for it? Is it necessary, however, for there to be more than mere guidelines in order to protect gullible purchasers from partisan dealers and art historians who have not declared their hand? If an attribution has been given falsely then a buyer may have a claim for “negligent misrepresentation” against the scholar in that the scholar should have known that some third party would be relying on his (false) written attribution.
However, even in those circumstances, a wealthy art collector, with access to the best professional and curatorial advice, is not in the same situation as an innocent consumer purchasing a supermarket product where it is just not practicable or acceptable for the buyer to carry out his own checks on the quality and specification of the product.
To date, the legislature has not felt it necessary to introduce laws specifically related to the giving of attributions and the selling of expertise. It seems likely that the relationship between expert, seller and buyer will simply be left to the compelling market forces of the art trade and, caveat emptor—let the buyer beware.
Art lawyer with Stephens Innocent, London
What the dealers, scholars and others say about expertises
A well-known London dealer
The shock of all time was when a well-known expert in Dutch painting announced in response to a request for an expertise “My fee amounts to $50,000, which is in correlation with current market prices”.
Katrin Bellinger (Munich dealer, Old Master drawings)
This should be like a doctor or a lawyer’s services, with an outright fee for the scholar. Dealers stand to make a lot of money as a result of scholarly opinions.
Julien Stock (Senior Director, Sotheby’s London, Old Master Paintings)
Payment for opinions should be commensurate with the value of the object sold. The seller must be sympathetic to the value of the scholar’s input if this helps to sell the work of art more advantageously, and should definitely remunerate him adequately. If the advice comes from a museum employee, then it seems correct to make a donation to that institution. Many dealers and their clients fail to “look after” the scholar who helps them. That is just plain greed on their part. On the other hand, there can be no question of the extent of corruption on the part of certain experts. I personally know of some who ask how much you can afford before giving their opinion—for £200 it’s by a follower of a follower, for £2000 they’ll say it’s a Rembrandt. Another particuliarly odious corruption is the scholar who sets himself up as a unique authority on a certain painter with the specific knowledge that, in cornering the market, his opinion will be essential for anyone dealing with works by that artist. A scholarly opinion can make or break a picture, as in the case of a Saraceni which we sold in 1989. It was eventually returned by Agnews because one Anna Cavina pronounced it a copy.
Alex Wengraf (London dealer, mainly Old Master paintings)
I’m dead against them. As a matter of principle, I never use them, and furthermore, if I buy a picture with one, I never sell it with it. But I will quote the authority if I respect for example his dating, opinion on certain details etc. I would always credit an authority but I seldom quote his entry intact just like that. One of the strong points of England is that we don’t need those things. They stem from Italy and Germany; the reason is often that the object concerned is of little importance and has to be inflated by means of a certificate from an expert. In the U.K. we have the Sale of Goods Act which means that the buyer has redress [1979, Section 13(1) which says “...where there is a contract for the sale of goods by description, there is an implied condition that the goods will correspond with the description]. The salerooms are at the bottom of the “by or not by” problem, since they are prepared to catalogue an object as Peter Paul Rubens, only then in the small print you see all the qualifications. Where every picture has to be by somebody, the expertise follows as inevitable. I’m third in a line of art dealers, and my father taught me, “Good pictures don’t need certificates”.
Marcello Violante (London dealer, Old Master paintings and works of art)
Expertises are an industry invented for weak pictures, and they scarcely exist here in England, where quality counts above all. Much depends on the prospective buyers. On the Continent, they are mainly the very rich, or nouveau riche industrialists, and they are the ones who insist on expertises even with great pictures which really speak for themselves.
Alexander Bell (Senior Cataloguer, Sotheby’s London, Old Master Paintings Department)
We tend not to use these certificates now, unless we have the original, as it is very difficult to verify photocopies. I like to consult the Hague’s Rijksbureau voor Kunsthistorisches Dokumentatie, which is a cross between the Witt Library (the famous photographic archive of the Courtauld Institute of Art in London) and a sort of State archive. Its staff do provide letters regarding works of art, but these are by no means expertises. There is no related charge and there is a let-out clause for each one. Dr Fred Meijer of the RKD is frequently quoted as a source in catalogues. He stands to gain nothing, and is therefore obviously that much more objective. Friedländer is no longer with us, and so old expertises are often unearthed for Dutch pictures. But it’s difficult for the layman to understand how daunting it is when you are confronted with fifteen differing expertises, and so we have to consider each work of art anew.
Jack Baer (London dealer, Old Master paintings)
During my more than forty years as a dealer, this was never a practice willingly adopted in the U.K. It started on the Continent and in America and is absolutely abhorrent to me. Art historians willing to give an opinion should do so absolutely independent of any fee. In this respect, I maintain that art historians should not take money. I do not believe that you can give an independent view of an object if you have any financial involvement. If a scholar charges a fee like any other professional, this must be established in advance of such an act or sale taking place. If art historians wish to be involved in profits, they should become dealers.
Giovanni Pratesi (Florence dealer, Old Master paintings and works of art)
In Italy, they play a very important role for the less educated client, but it always remains a matter of great privacy between the scholar and the client. Longhi wrote countless “”letterine”, but of course these cannot be considered as part of his serious activities or his legacy.
Alain Moatti (Paris dealer, mainly Renaissance and baroque art)
French dealers must guarantee their sales for thirty years after the sale, which means that they must make very sure of what they call the object: this means that ultimately the real expert is the dealer. They say in the salerooms, “The true experts are in the audience”. The expert in France is somewhat different from elsewhere: there are dynasties of experts, père et fils, and anyone may set himself up as an expert without any qualifications whatsoever. French salerooms actually employ their own experts, (commisseurs-priseurs) of whom about one-quarter are in fact dealers anyway. In France, the majority of the real experts work in museums, and these people maintain a cold, courteous relationship with the market.
Sam Segal (Amsterdam, independent art historian)
I have an honorary lecturing position at the Free University here, and otherwise work as a freelance art historian. I concentrate mainly on Dutch still lifes. Certainly I write expertises, for which I charge a fee of around £300 agreed in advance. I am very particular about the dealers with whom I work such as Richard Feigen in New York and Richard Green in London. There are many German dealers for whom I will not work because they expect me to upgrade inferior paintings.
The Last Judgment
In 1987 the late Professor Frederick Hartt published a little gesso torso as an early work by Michelangelo in preparation for his “David”. The circumstances of its presentation to him, and his part in its subsequent publication, promotion and attempted sale, prompted two journalists, Geraldine Norman and John Windsor, to draw conclusions that, when published in The Independent on 15 December 1988, brought them and their newspaper into court as defendants against a suit for libel brought by Professor Hartt. The judgment of Mr Justice Morland is of great interest not only for the clarity with which he rehearses the discreditable tale, but for his charming innocence of the ways of the art world and his robust attack on the very man to whom, as the consequence of his interpretation of the law, he awarded the trifling damages of £7,500. Though he could not accept that the Professor’s secret financial stake in the so-called Michelangelo had brought any element of dishonesty or recklessness to bear on Hartt’s connoisseurship, he nevertheless described it as “a gross breach of professional ethics involving disreputable, dishonourable and deceitful concealment ...”.
On 22 May 1986 Hartt, Emeritus Professor of Art History at the University of Virginia, resident in Charlottesville, there received a telephone call from a Mr Benamou, acting on behalf of one Michel de Bry, resident in Paris, who sought his opinion on a work of art. Hartt, knowing nothing of the nature of this work of art, immediately asked for expenses, $1000 for expressing an opinion, and a percentage of the sale price were the object to be sold in accordance with that opinion—yet he was later to protest that “he did not want and never had wanted to get into attributions for a living”. Benamou’s response to the demand for five per cent was: “C’est normal”, a reply worth remembering.
Seventeen days later, on 8 June, Hartt was in Paris with de Bry’s work of art in his hand, a tiny gesso torso within which he “could feel in germ not only the marble “David”, but the whole race of heroic beings with whom Michelangelo populated his famous, classic compositions”. By 11 June, still in Paris, Hartt had arranged that the Abbeville Press of New York (publishers of much sound art history) should publish his “historical, artistic and technical study” of the newly-identified work by Michelangelo, and he and de Bry signed a contract that committed the former to the book and the latter to the disbursement of “a nett percentage of 5% ... of the sale” (art historians must envy the ease with which Hartt found a willing publisher without even a synopsis or a photograph). On 14 June, back in America, Hartt further arranged with de Bry by telephone that he would announce the discovery of the Michelangelo at a lecture to be given at the National Gallery in Washington, but that he would talk first to Carter Brown, the director, so that the Gallery could raise funds and be an effective bidder at auction (the first mention of this method of finding a buyer). This Mr Justice Morland describes as “both dishonourable and deceitful”. Within six days of first seeing the Michelangelo, Hartt was beginning to engineer its sale to his country’s greatest art gallery.
On 26 June Hartt wrote to de Bry pressing the case for sale by auction, and requiring that if the sale must instead be private, then at “a figure below $20 million my percentage must increase in proportion”. At this point, having described Hartt as “prostituting his scholarship for money” (he had earlier used the word “peddling”), the Judge expresses his astonishment that he should be so seduced by “a pot of gold”, so “greedy for profit”, that he could enter into “a disreputable joint commercial venture” with “a mountebank”. On 2 August, by which time both parties had agreed that the torso should be sold at auction by Sotheby’s in New York, Hartt’s percentage was raised to five per cent of the gross price, protecting him from loss through Sotheby’s commission; meanwhile de Bry had written Hartt a letter that the Professor’s solicitors were to use when attempting to secure an apology from The Independent: “... I have been very sensitive to the fact that you have refused all financial interest in this eventuality, even if, as you say, the publication you are preparing should be the crowning of your career. It is fitting, nonetheless, to salute the nobility of your ideal”. Mr Justice Morland “convinced that there is a considerable degree of humbug in the Professor”, took the use of this letter into account when awarding damages. On 7 October de Bry telephoned Hartt to say that a representative of Sotheby’s had suggested a value approaching $50 million and “a private sale to avoid hysteria” (not by any means that firm’s pet avoidance); Hartt agreed. On 22 November de Bry guaranteed the Professor a minimum amount of $2.5 million. On 27 November Hartt spent an hour and a half with Carter Brown at the National Gallery in Washington and was convinced that he did not question the authenticity of the Michelangelo; but of a second meeting, on 19 December, with Dr Douglas Lewis (Curator of Sculpture), he wrote to the intending publisher of his book, “Doug was treating me as if I were trying to put something over on them”. On 14 January 1987 Hartt received a letter from the Chief Curator of the National Gallery to say that he, Carter Brown and Lewis were not convinced by his arguments and that to exhibit the “David” (as the small torso was now known) “does not at this time seem a proper step for us to undertake”. Hartt told de Bry nothing of this rebuff, and as late as 2 June wrote to him of the exhibition in Washington as though the plan were firm, not abandoned. Unknown to Hartt, while he was attempting to promote the Michelangelo in Washington, de Bry, on 8 January, had granted an option to purchase to Michel van Rijn, an engaging rogue since arrested by the Spanish police, wanted by the French police, and much accused of forgery and money-laundering. The introduction to van Rijn had been made by Richard Camber, the then director of Sotheby’s, who had suggested the figure of $50 million and the private sale, but van Rijn’s option was at only $27 million. De Bry was about to lose control of the torso, and within two months two further contracts for part purchase had been agreed with van Rijn and the Michelangelo had been lodged in Coutts Bank in The Strand, beyond de Bry’s reach without van Rijn’s written consent. Of these negotiations Hartt was not informed until 15 July; the Professor did not reply to this startling news, perhaps because he had himself deceived de Bry over the failure of the proposed Washington exhibition, and perhaps because in America there was a rising tide of dissent, and not agreement, to his attributing the torso to Michelangelo. It is a wry thought that in New York Hartt announced his great discovery on the very day that van Rijn in London locked it in the vaults of Coutts Bank.
Hartt continued work on his book and maintained the fiction that he had no commercial stake in the torso—his friend David Finn, who took the photographs for the book, wrote to de Bry’s son “... I ask for no royalty for myself from the book, it is genuinely a labour of love on my part. Fred also has nothing to gain financially ... it is a burden to him to spend time as an adviser... takes time away from his scholarly work”. This meretricious exercise in promotion was published in America in October 1987 and in England the following month.
Throughout the trial the Judge maintained his belief in Hartt’s probity as far as the attribution to Michelangelo is concerned. The Independent called as witness Professor Martin Kemp (a panjandrum not widely known as an expert on Michelangelo, nor on Renaissance modelli and bozzetti, nor on small bronzes, nor on nineteenth-century fakes); Kemp put his view in a way that many a gentlemanly English art historian might when still unsure, and suggested that the torso had “a very decent chance of ... being by Michelangelo”—but this vagueness was taken by the Judge to be acceptance of Hartt’s view.
The problem with art historians (and for those who, like The Independent and the Judge, depend on them) when asked to express scholarly opinions in matters of connoisseurship, is that while most members of that benighted profession make perfectly good clerks, archivists, or even teachers, in judgements of quality or authenticity they are the blind leading the blind, and with undocumented and undocumentable works their sanity may evaporate in the heat of scholarly vainglory.
Perhaps the Judge was correct in seeing the attribution as an issue of no importance in the case, for without firm evidence that Hartt’s connoisseurship was made elastic by his promised five per cent, the true maker of the torso matters not at all—only the genuineness of Hartt’s belief at the time that he first saw the torso and his consistent clinging to that belief throughout the time that he wrote his glossy monograph was of concern to the court. Even the Professor himself was allowed to change his mind after its publication, and indeed subsequently discarded any claim that the torso was a modello for the “David”, although he maintained that it was by Michelangelo until his death last year. The ethics of the art historian, not his connoisseurship, were the issue in this case. The College Art Association (an American body) has, since 1973, commended a Code of Honour to its members in which it is suggested that fees for attributions should “bear no relation to the monetary value of any work of art in question [nor] ... to the monetary effects of any ... opinion or statement by the art historian”. This Code was devised because the Association had at last been forced to confront the long-standing problem of the art trade’s exploitation of the scholar’s knowledge and reputation—a matter that for many years in America and continental Europe had been (and still is, in both) settled by a percentage stake in any forthcoming sale. That Professor Martin Kemp should have expressed amazement at Hartt’s acceptance of a percentage is a measure of his innocence or naïvety; that Jack Baer, the eximious St James’s dealer called by The Independent, should also have been amazed, must astonish all who have had any experience of the international market in Impressionist and later works. Geraldine Norman’s “absolute amazement” at the percentage is even more extraordinary in one who has for so long been a commentator on the art market for distinguished newspapers. It is as well for The Independent that they called only English witnesses in the matter, and that Hartt did not call his American peers or members of the Art Dealers Association of America, Inc., but neither plaintiff nor defendants seem to have realised that in essence this trial was an American and not an English affair.
Mr Justice Morland judged that “Hartt stooped dishonourably” in accepting the secret concealed commission—yet the acceptance, the secrecy and the concealment are common in such arrangements and not perceived as dishonourable by those who enter into them. The difference between Hartt and other art historians lies in his active promotion of the sale, and the questions that should have been asked at the trial were whether, without the promised five per cent, he would so vigorously have sought to exhibit the torso in Washington and to tempt the National Gallery to buy it; whether he would have held the New York press conference to announce its discovery; whether he would within three days of first holding it in his hand have persuaded an eminent American publishing house to publish a monograph on it, and whether he would have held to the Michelangelo attribution with such implacable resolution. A decent English art historian would have published the torso in a Shorter Notice in The Burlington Magazine without even a scribbler’s fee and then let it take its chance. The question of great significance, not raised in court, was and is still: why did de Bry, having invented a romantic and entirely false history for the torso (of which the only certain provenance is that it was found in a flea market in Antibes in 1982) approach Hartt and no other scholar?
Scholarship in the service of the market: a long story
From its origins Italian art history has always been allied in one way or another to the art market. Sometimes the alliance has been healthy and sometimes unhealthy, but it has almost always been a taboo subject. Although purists adopt a high-minded attitude and refuse to connect the disinterested pursuit of knowledge with the art market, it is true that any lively exhibition or intelligent writing on works of art must inadvertently have an effect on prices.
In Venice, by the mid-seventeenth century, artist-critics who were also dealers, such as Carlo Ridolfi and Marco Boschini, wrote elaborate guide books to the public and private collections in Venice revealing what was for sale to foreign collectors. Their books are now our art-historical sources and we would be the poorer without them, but their defects and their virtues become all the clearer when we realise their original functions. Ridolfi’s book Le Maraviglie dell’arte (1648) was dedicated to the Reynst brothers, prominent art dealers in Amsterdam, then one of the most important European centres for the dispersal of Italian painting. In it he described some 160 private collections alone in Venice, as well as many others on the terraferma of the Veneto. Ridolfi had a tendency to attribute paintings to famous names—one suspects not merely from optimism—and it is hard to resist the impression that this kind of art historical book was really one of the first dealers’ handbooks for an international clientèle.
The situation changed dramatically in the nineteenth century with the growth of public museums in Italy and elsewhere in Europe, which were accountable to an ever increasing and ever more critical public, as well as to their elected governments. At the turn of the century, the Musée Napoleon in Paris (a gallery made up of Napoleon’s looted booty from all over Europe, but principally Italy), provided the model for the development of new national galleries in Germany and England. Despite their names the intention of the new national galleries, unlike the newly developing public museums in Italy, was not to preserve the heritage of their own countries but to acquire the best Old Master paintings from Italy that they could lay their hands on. Public accountability entailed a new morality. Connoisseurship was developed as a diagnostic instrument to determine which paintings could be attributed to which great artists, and a knowledge of it was indispensable to the museum directors for whom acquisitions were essential. It is surely not accidental that the inventor of scientific connoisseurship, Giovanni Morelli, was also an Italian politician in the first Risorgimento government of a newly united Italy, who sat on commissions that controlled legislation concerning the exportation of works of art, and initially used his method to determine which works were by Italian artists of great quality, such as Botticelli or Raphael. Morelli advised Italian museums on installations, and, in an age when Italian museums were without purchasing funds, created collections for his friends of local regional Schools of painting which he hoped would remain in Italy. At this period connoisseurship was a complicated game of power-politics in art, in which individuals determined which pictures were by whom, and which museums could have them.
Where was this new kind of knowledge—connoisseurship—obtainable, but in the auction houses or studios of restoration or in private collections, by someone who had unrivalled opportunities for comparison. In 1855, when the first Director of the National Gallery of London, Sir Charles Eastlake, was appointed, he had the Trustees employ a German dealer Otto Mündler, who had previously been a dealer in Paris and whose art history had been learnt on the auctioneer’s rostrum. Upon taking up his appointment Mündler disposed of his dealing stock, and during the time of his contract did not buy paintings on his own account. When, some three years later, Mündler was unfairly dismissed by Parliament he returned to dealing in Paris, where he advised German museums on acquisitions. Whatever their social background, art historians in museums of nineteenth-century England assumed an unwritten code of behaviour characteristic of gentlemen, but sometimes there were dangers in not having fixed guidelines.
It seems that it was an unwritten assumption that Italian salaries could be augmented by the writing of expertises, while in England Gladstone’s attitude to the staff of the British Museum, when they asked for a rise in salary, was to say that they were privileged to lead the life they did. Nevertheless, some famous art historians in England did write expertises, such as Tancred Borenius, a scholar known as the frisky Finn, who met clients in the St James’s Club who wanted letters of authentication (not without damage to his reputation).
What has always been intensely mystifying to the general public, and equally to experts in other disciplines, is that it was and is possible for art historians to hold legitimate differences of opinion concerning the attribution of a particular painting, until a definite proof is obtained. In 1872 there was a particularly dramatic public controversy involving two versions of Holbein’s “Madonna with the family of the Burgomeister Meyer”, one in the Gemäldegalerie, Dresden, the other in the private collection of the Princess of Darmstadt. A confrontation between the two paintings in an exhibition in Dresden in 1871 resulted in a lively polemic as to which was the original. Did Holbein execute two versions? Was one a forgery, or a later copy? A pioneering psychologist, Gustav Fechner, better known as Freud’s mentor, was fascinated by the dispute, and kept a record of the diverse opinions of every art historian who visited the show and then published them in a book. In no other subject, he thought, was it possible for individuals to hold such differing opinions legitimately, and he asked the question, why, without effectively managing to answer it. Some thirty years later Freud himself was equally fascinated by the subject when he acquired the Italian edition of Morelli’s volume on the attributions of paintings in the Borghese and Doria galleries, and he claimed to have developed his technique of psychoanalysis as a result of Morelli’s method, perhaps the only occasion on which it may be claimed that an art historian has affected the development of another subject. In the early 1860s Mündler, with his unerring eye, had recommended that the National Gallery acquire the Darmstadt version of the Holbein, but Sir William Boxall, Eastlake’s successor, failed to respond. It was only sixteen years after the exhibition that the Darmstadt version proved to be the original while in restoration at Munich, and the version owned by a public museum was exposed as a seventeenth-century copy.
Similar disputes occur today and science plays an even greater role, for example in the recent dispute between two former directors of the Bavarian state galleries, Erich Steingräber, an art historian, and Hubertus von Sonnenburg, the last director, who is also a very distinguished restorer, now Head of Conservation at the Metropolitan Museum, New York. Steingräber acquired many works at high prices, including a disputed painting by Daubigny, for DM1.6 million, the signature on which was proved by von Sonnenburg to be a later addition. The resulting row, in which the Bavarian parliament insisted on not returning the painting to the dealer, and von Sonnenburg felt forced to resign, left the state galleries with a very expensive acquisition on their hands.
During the Holbein dispute much use was made of the “relazione storica” or “perizia” written in the seventeenth century by the Count Algarotti in Venice, while he was searching for pictures for Augustus II of Saxony, for whose collection the copy was bought. Authentications such as this became particularly fashionable in the eighteenth century and even today are sought after by some collectors, more on the continent than in England. Some art historians never wrote them—Eastlake and Morelli, for example. But many others made a great deal of money from writing letters of authentication guaranteeing the attribution of a work of art, and if the writers occupied an official position, particularly in a museum, the weight of the attribution was considerable. In the main, authentications were written by freelance art historians who were not employed by museums or institutions, such as Morelli’s pupil Jean-Paul Richter, who was a private scholar and dealer. Richter is remembered today for his impeccable edition of Leonardo da Vinci’s writings, but he also bought for various private collectors and published elaborate catalogues of their collections. The late Sir Ellis Waterhouse remembered Berenson saying to him that it was the first sight of Richter’s sale catalogue of the Henry Deutsch collection (signed J.P. Richter PhD) that revealed to him “the extent of corruption of which our profession is capable”. What Berenson recognised was that Richter invented provenance in his catalogues, giving fictitious lists of noblemen who never owned paintings. Berenson certainly knew the value and power of a good provenance, even though he himself could intentionally omit giving provenances in his catalogue of the Johnson collection at Philadelphia, which he had helped form. The involvement of some art historians in the market is perhaps made evident from a particular genre of museum, the art historian’s house, exemplified by I Tatti and the Istituto Roberto Longhi, both in Florence, where most of the Old Master paintings must have cost a considerable amount of money and result from involvement in the market.
In the light of this, one may well ask whether the system of expertises still takes people in? The sophisticated public may look at such documentation cynically, even if they fail to spot that the collection of the Contessa Superbi-Gioelli at the Palazzo Zane is a fraudulent invention; but the general public wants to believe that a painting was by a great artist, that it was owned by a famous duke, and this desire to believe is a marvellous opening for a charlatan. In the seventeenth century “perizie” were bound as booklets; in later times they have been published as catalogues. Those “perizie” were in fact the ancestors of Professor Frederick Hartt’s short controversial book on a statuette which he attributed to Michelangelo, written not for a collector but for a dealer, de Bry, described by the judge in a subsequent libel trial as a mountebank. Unlike the Holbein attribution controversy there has been no chance to compare the statuette with genuinely accepted works by Michelangelo so the sophisticated public remains unsatisfied. In recent decades there has been in Italy and elsewhere an open rapprochement between art history and the art market. When I asked Alessandra Mottola-Molfino, Director of the Poldi-Pezzoli Museum, why this should have happened she replied that since the decline of Marxism in Italian art history (so prevalent in the Fifties and Sixties) and the revindication of empiricism, it is no longer forbidden ideologically to work in two different camps. Dealers’ exhibitions have made genuine contributions (for example Patrick Matthiesen’s exhibition on Ferrarese art of the Quattrocento), and auction houses (for example Finarte, with their sponsorship of exhibitions) have financed museum programmes. For Molfino a desideratum is that the association of Italian art historians publish a register of accredited members, such as exists for lawyers, to allow laymen to distinguish between genuine scholars and those who have been discredited. For such a list to be of any use however, it would have to be genuinely objective, and would have to define what sort of behaviour would place people beyond the pale. Jaynie Anderson
Zeri, Italy’s most famous freelance art historian, comments
Is there any kind of written code of ethics for professional art historians in Italy?
Federico Zeri: No. It is only understood.
What is understood?
The many codes in Italy; everybody knows, nobody follows.
How do you feel the Italian situation compares with that in other countries?
In what way is it worse?
Because the experts are more corrupt.
Do you think that Italian art historians are satisfied with the level of ethical conduct in Italy?
Verbally they are satisfied but they do what they wish—there are no rules.
What do you think are the disadvantages of unethical conduct in the art world?
It ruins potential collectors, who distrust experts. On the other hand, it emphasises the good experts, the serious ones. More importantly, they have no competition.
Do you believe that there is a different tradition between the art expert in Italy and, for example, the art expert in England?
I think there is a different tradition.
And therefore do you think that one has to be more tolerant of the Italian situation?
You cannot write certificates, writing down false statements in order to promote paintings and to make them sell for a bigger price. This is what the experts do at present. In Italy there is no law; there is no official expert. Anyone can write an expertise—anyone. There is no rule.
Do people believe in these expertises?
Some collectors do believe in them. They believe in expertises and in pictures that have been published. I, personally, collect expertises.
Because you find them amusing?
I am not a blackmailer. I only find them amusing. But some experts have written expertises by the thousand. A great scholar whose name I won’t tell you used to write expertises for a dealer. I met that dealer and he had 2,500 expertises by him.
Doesn’t this bring the system into ridicule?
Of course, but the Italian middle class is so ignorant, so naive. They always try to buy what they call a great find. They buy a Botticelli for a few thousand pounds, or a Masaccio for a few pennies. It depends on the cultural level of the buyers, of the collectors. The Italian middle class is of a very low level.
Do people write expertises today?
I personally make a distinction between serious expertises and phony ones. The real expertise, the serious one, is not written for the vendor, it is written for the buyer. If an expertise is written for the vendor, it is not serious because the vendor is always interested in increasing the value. A serious and reliable expertise is not a piece of paper with the dealer’s name and no date. It must always have an address and a date, month, year. Italian expertises are just pieces of paper; or even worse, they are written on the backs of photographs. Often, you know, the photograph has been split in two and the back has been glued to another photograph.
Is it true that certain members of the Soprintendenze [the state-financed art, archaeology, and architecture administration] have a business in writing expertises?
No, to tell you the truth I have never come across that. I know of many people in the Soprintendenze who are said to be dealers or to help dealers, and who help export pictures, but I have never seen expertises written by them—perhaps once or twice in archaeology, many years ago.
But what you have just described is not ethical behaviour. They should not assist in the exporting of works of art because that is against the law.
No, it is not ethical, but Italy is now lawless.
In what circumstances do you think that it is legitimate for an art historian to give his or her paid opinion to a dealer?
I have been the adviser for a big dealer, and when certain paintings—only certain pictures—were sold, I wrote a letter to the buyer, to the collector, not to the dealer. But very often the collector did not pay me. The dealer did; it was included in my fee.
Do you think that it is right for the art historian to take a percentage of the sale value of an item?
It depends on the agreement. If the picture has been bought on the art historian’s advice, why not? It depends also on the kind of pictures. If the pictures are rubbish, no.
Do you think that the giving of expert advice is equivalent to a lawyer giving his opinion?
It is the same.
There is one very important difference though: when it comes to a dispute over an attribution—which can easily happen—how is one to settle this dispute?
It can be settled by the expert himself, showing the reasons for his opinion, with references and documents.
Of course, if another expert comes and produces his reasons ...
Very often they are non-experts, but in that case it is better to drop the matter, because in Italy everybody knows about paintings. If you go to your dentist, he knows. Even the maid who is cooking, she knows. Everybody knows. All these rotten experts have free rein because of the ignorance of the collectors. I knew a very important collector who used to spend incredible amounts of money every year, whose adviser was a dentist.
Codes of ethics for art historians and museum curators
Codes of ethics for art historians
Association of Art Historians (U.K.)
Research and publication: No claims to exclusive rights in areas of scholarly investigation. Publish research without unreasonable delay.
Illegal traffic in works of art: Do nothing to facilitate the illegal removal of cultural items from their countries of origin.
Remuneration for scholarly services (attribution, connoisseurship): Set fee in writing in advance of the service being provided. No financial interest in any items on which expressing opinions.
Acceptance of gifts: The receipt of special favours in kind or of a material nature should be avoided.
Fakes and forgeries: Not considered.
Appraisals: Scholars should not provide financial evaluations, unless this is specifically part of their professional duties.
Personal collecting: No competition with institution for which working in any personal collecting activity.
Dealing with sponsors: Acceptance of outside funding for a project should not affect scholars’ independence of judgement on matters of sensitivity to the sponsor.
College Art Association (U.S.A.)
Research and publication: Moral obligation to share discoveries, but not personal interpretation, with colleagues and serious students. Publish research as soon as possible.
Illegal traffic in works of art: It is improper professional practice to be knowingly involved in illegal international export and import.
Remuneration for scholarly services: Establish fees in advance, with no relation to the monetary value of any work of art in question.
Acceptance of gifts: Do not accept gifts from donors, sponsors, art dealers or artists, even when on the basis of personal friendship.
Fakes and forgeries: Fakes discovered in public or private collections should be reported to administration or owner.
Appraisals: Only without conflict with rules of institution for which working. Fixed fees, not based on percentage of ascribed value.
Personal collecting: Not considered.
Dealing with sponsors: Not considered.
Codes of ethics for museum curators
Museums Association (U.K.)
Definition of a museum: Non-profit making institution for the public benefit. Ethic of public service.
Responsibility: Use collections for creation and dissemination of new knowledge, through research, educational work, permanent displays, temporary exhibitions and other special activities.
Acquisitions: No acquisition should be made, whether by purchase, gift, bequest or exchange, of any work of art situated in, or exported from, its country of origin (and/or any intermediate country in which it may have been illegally owned) in violation of the country’s laws.
Deaccessioning: Acts of Parliament specifically prohibit the disposal of items in the most important national collections. If this is not the case, museums cannot sell the object unless authorised by the Courts or Charity Commissioners or Minister of Education. The object should be offered first, by exchange, gift or private treaty sale, to other museums before sale by public auction is considered.
Commercial support and sponsorship: Standards and objectives of museum should not be compromised by such a relationship.
American Association of Museums (U.S.A.)
Definition of a museum: Non-profit institution for the public benefit. Ethic of public service.
Responsibility: Advance understanding and appreciation of natural and cultural common wealth through exhibitions, scholarship, publications, educational and other activities.
Acquisitions: To be conducted in a manner that respects the protection and preservation of natural and cultural resources while conforming to the museum’s public trust responsibilities.
Deaccessioning: Disposal of collection materials is solely for the advancement of the museum’s mission through the enhancement of collections.
Commercial support and sponsorship: Revenue-producing activities and those involving relationships with external entities should be compatible with the museum’s mission and support its public trust responsibilities.
How various countries view expertises
Italy The real public for expertises today is the uninformed buyer, often buying works of less than prime quality which are given a filip of credibility with a “letterina” from an expert. Because of the very real black economy in Italy even large cash payments are extremely common, and on the whole the Italian nouveaux riches are more likely to invest in art than their European counterparts. There is a very long tradition of expertises in Italy, where they are very much an accepted part of the buying and selling of works of art.
U.K. The use of expertises is extremely limited, and infinitely less overt. If an expertise will sell a work of art in the U.K. some dealers will not baulk at its use but they may require a more professional standard than the Italian market. Some top dealers, possibly more with museum clients in mind, may prefer to provide the equivalent of a catalogue entry. Dealers and auction houses frequently call on experts in universities and museums to give their opinion in exchange for little more than a good lunch and expenses.
Holland Here, the vast number of Dutch paintings from the seventeenth century onwards must be borne in mind. Many buyers for Dutch paintings are German and almost all, according to the dealers, ask for either existing certificates, or fresh expertises. The Hague’s Rijksbureau voor Kunsthistorisches Dokumentatie provides one of Europe’s most reliable institutional sources of opinions on Dutch art.
Germany The use of expertises is widespread, especially as a large sector of the market is in Dutch paintings which have traditionally been accompanied by expertises.
France There has never been much value laid on expertises in France, although French paintings, especially the Impressionists and post-Impressionists, are furnished with expertises when they are being sold abroad to Japan. French museum staff are not allowed, as public servants, to give their opinion to dealers, something which is a permanent bone of contention.
Japan The Japanese buy almost exclusively through Japanese dealers, which makes any contact between European dealers or experts and the Japanese collector next to unknown. When they do decide to buy they demand letters, condition reports and examples of published references to the work, preferably in the catalogue raisonné, not necessarily expertises. The Japanese are the main buyers of art books at the moment, to compensate for the lack of Japanese experts in European art. Lawrence Greenough of Richard Feigen & Co. emphasised: “The Japanese buying, say, a Monet, are unbelievably cautious, and demand colour and black and white photographs, signed by the Fondation Wildenstein to confirm that theirs really is the one illustrated in the catalogue raisonné”.
U.S.A. American collectors and dealers rely more heavily on expert advice than any other nation. They are not interested in pieces of paper, however, but in personal advisors who accompany them to view prospective purchases. The expert will often get a cut from both the dealer and the buyer. Museum curators are not supposed to take a personal cut of money on the deal, although some are known to do this. More often the curator might hope for a reward in the form of a gift to the museum. Links between the trade and museums are much stronger in the States than, say, in Britain and apparently work to the advantage of all concerned. One New York dealer felt that there was a trend among American art historians to charge for their opinions and even to try and link their fee to the ultimate sale price of the object.
Originally appeared in The Art Newspaper as 'The question should be, how to avoid shameful infections and a diminution of the truth?'