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Authenticity and connoisseurship: How do we know it's real?

With a Calder, the judge overruled the expert; with a Schiele, the judge decided deceit was the clincher, and with a Braque, the judge upheld Christie’s right to fear liability

There has always been interest in the authenticity of art. Is it "real" or is it “original” are perennial questions in the art world—stated more pointedly by the collector as "What am I buying" and "What do I own?" Increasingly, perhaps due in part to exhibitions such as "Rembrandt, not Rembrandt" at the Metropolitan Museum of Art in 1995, the public is beginning to ask how authenticity is decided. Indeed, how authenticity is judged is a question worth asking because decisions made privately about authenticity can eventually end up in court.

Courts in the US and the UK identify three lines of inquiry as basic to determinating authenticity: investigation of provenance; a connoisseur's evaluation of the work; and scientific testing. Such inquiries are not only acceptable but are given great weight in court (although, in practice, few decisions have relied on the results of scientific testing).

When judging a work of art's authenticity, all courts agree on the importance of visual inspection by a knowing eye. Connoisseurship—the ability to perceive the "rightness" of the work—is based on the expert's having looked hard and carefully at many works by the artist, combined with knowing the artist’s usual manner of working and materials. But a connoisseur's evaluation, even if accepted in the marketplace, may be contradicted by judicial decisions, if not communicated persuasively to a court.

Courts have found other factors significant in determining authenticity, such as signatures on the work and the existence and extent of overpainting or restoration. Courts may consider how the experts conducted their examination, for example, by examining photographs as opposed to the original, and the degree of care and time the experts spent.

The following cases illustrate some of the legal issues that can arise in authenticity disputes. The first involves a court ruling which disagreed with a recognized expert's determination that a mobile said to be by Alexander Calder was a forgery.

The second deals with the overpainting of an original painting by Egon Schiele. The third, involving a Georges Braque pastel, considers what can happen when there are post-sale objections to authenticity under an auction house consignment agreement.

The Calder case

A group of experienced art dealers bought what they believed was a mobile by Alexander Calder, "Rio Nero". After unsuccessfully trying to make it hang properly, they decided it was a fake and sued the seller to get back their purchase price. It was undisputed that in 1959, Calder created a sheet-metal and steel-wire mobile composed of twenty-seven hanging blades, that in 1962 Klaus Perls sold the mobile to a buyer, and that five years later Mr Perls reacquired it and sold it to a second buyer, in whose house it hung for twenty years, until the owner's death in 1987. Three years later, his daughter sold the disputed mobile to the plaintiffs.

At a 1993 trial to determine the authenticity of the mobile, the unhappy dealers produced the testimony of Mr Perls, Calder’s exclusive dealer in the US for twenty years, to the effect that the mobile they had bought was a forgery. Mr Perls based his opinion on his usual method of comparing the mobile to an archival photograph he had made before the mobile first left his gallery. He testified that every blade in the disputed mobile was not the same as his archival photograph and that "every blade" was not by Calder. “You just look at two or three blades and they are wrong.” Even the seller’s expert testified that Mr Perls’ assessment of the mobile’s authenticity would destroy its value in the art market.

But the federal district court judge (who never examined the disputed work, only photos) was not impressed. “This is not the market, however, but a court of law,” he wrote, saying he had reached his decision notwithstanding Mr Perls’ “vastly superior” credentials compared to the seller’s expert.

The judge was unpersuaded by Mr Perls, because Mr Perls had spent only a few “minutes” examining the mobile. Nor did Mr Perls address the “AC” signature, while the seller’s expert had spent more than “one and one-half hours” carefully examining the mobile and could point to the mobile’s "impeccable provenance", attested by the original invoice from Mr Perls’ gallery. On this basis, the judge ruled that “the mobile is not a forgery, but the original ‘Rio Nero’ which has been misassembled and abused to the point that, on cursory examination, it does not exactly resemble the original photo and has lost its delicate balance required for proper hanging.”

The court’s decision was upheld on appeal notwithstanding a friend-of-the-court brief submitted by the Calder Foundation which argued that the blades were not the proper gauge, that the wire was of soft rather than Calder’s hard steel, and that the signature, relied on so heavily by the trial court, showed telltale tool markings not made by Calder’s tools.

The seller kept the $500,000 purchase price. The mobile reportedly sits today in the basement of one of the dealers, totally unsellable—rendered so by Mr Perls’ opinion and the Calder Foundation’s court brief, which told the court that the mobile would not be included in its forthcoming catalogue raisonné.

The Schiele overpainting case

In 1987, madame de Balkany paid £500,000 at a Christie’s London auction for a painting described in the auction catalogue as by Egon Schiele. In 1993, she sued Christie’s for her purchase price, claiming the painting was a forgery. The English High Court in London, Queen's Bench Division, agreed with her. It was undisputed that the painting had been extensively overpainted after Schiele’s death to the extent of 94% of its surface area.

Christie’s argued that no amount of overpainting could make the painting a forgery, if the overpainter followed the design of the original artist, reproduced as best he could the original colours used by the artist, and the original picture had been by Schiele. Under such conditions, (almost) nothing done to the painting by another, Christie's argued, could make the painting a forgery. After his own examination, and conflicting expert testimony, the judge was convinced that the original painting was by Schiele.

However, the unknown overpainter had painted the blue initials “E” and “S” in the left and right corners, respectively, of the painting, and also had overpainted with black a mauve monogram, which could be seen by X-rays, of the initials “E” and “S” intertwined, most certainly painted by Schiele. The judge would not accept that the overpainting related purely to the painting’s "condition".

What, for the judge, distinguished the case from other cases where there had been substantial restoration work was the addition by the unknown overpainter of the blue initials. A restorer who simply overpaints, to a greater or lesser extent, is not seeking to deceive, the judge said. But by adding the blue E and S initials over the black paint which covered Schiele’s original mauve monogram, the overpainter sought to deceive viewers that the initials were painted by Schiele. The court therefore ruled that the painting was a forgery and required Christie's to return the purchase price.

The Braque case

In 1948 Jane Koven purchased a pastel by Georges Braque for $1,400, and, in 1990, sold it at a Christie’s auction to Barbaralee Diamonstein, for $600,000. Shortly afterwards, Ms Diamonstein raised questions about the work’s authenticity. To provide her with assurances, Christie’s obtained confirmation of the original purchase from the A.P. Rosenberg Gallery, and assured the buyer that Christie’s had no doubts about the work’s authenticity. Ms Diamonstein remained unsatisfied and demanded that Christie’s provide her with a certificate of authenticity by a Braque expert. Christie’s contacted Claude Laurens, who held the artist’s moral rights under French law, but the auction house was told that no certificate of authenticity would be issued. Consequently, Christie’s rescinded the sale, gave Ms Diamonstein back her purchase price, and sought return of the sale proceeds from Ms Koven. Ms Koven refused. Christie's insurer paid the auction house and sued Ms Koven in federal court.

The consignment agreement that Ms Koven had signed stated that “Christie’s shall have complete discretion as to seeking views of any experts...” and that Christie’s was authorized to rescind the sale of any property at any time “if Christie’s in its sole judgment determines the offering for sale ... may subject Christie’s ... to any liability including liability under warranty of authenticity”. Christie’s conditions of sale, as stated in its catalogue, provided that Christie’s warranted the authenticity of the work to the buyer for a period of six years.

Ms Koven argued that Christie’s decision to rescind was motivated by a desire to help Diamonstein, rather than by an honest belief that Christie’s might be subject to liability. The court found no evidence of such improper motivation, saying that the consignment agreement allowed Christie’s to rescind the sale if it were satisfied that the continuance of the sale might subject it to liability. The court did not require Christie’s (which insisted that it still believed in the work’s authenticity) to show that it acted reasonably in its post-sale authenticity inquiry; it required only that the auction house honestly believe that it might be subject to liability if it did not rescind the sale.

Several lessons can be drawn from these cases. Courts of law may adjudicate authenticity disputes, but if the judge does not apply generally accepted standards, the art market will come to its own decision.

Even authentic works may be rendered forgeries, in a court's determination, by improper restoration.

A seller at auction should negotiate the terms of the consignment agreement that govern what happens if the work's authenticity is questioned after sale.

Fear of lawsuits may silence experts

It should be noted that the fear of authenticity lawsuits has a dampening effect on the art world. Scholars, curators, dealers and other experts are often unwilling to pronounce on authenticity, for fear of being sued for product disparagement, negligence, breach of contract, or defamation—by a buyer, seller or owner. This fear is aggravated by the fact that a scholar authenticating a work may not ethically charge a fee related to the work's value, even though he or she may be risking suit by giving the opinion. More publicly, an art expert who believes that a museum is about to buy a fake at vast expense may be reluctant to volunteer that opinion, for fear of being sued by the seller or donor.

In any event, collectors would be well-advised to consider the legal weight of their authenticity evidence before purchase.

Partner in the New York law firm of DeForest & Duer, specialising in art law and art authentication matters. He is co-editing, with Francis V. O’Connor a book on authenticity in the visual arts, The Expert v. the Object.

Originally appeared in The Art Newspaper as 'Salomonic connoisseurship'