Instead, plaintiffs claim that the board maintains a monopoly in the authentication of the artist's work. But, as the lawyer who represents the Warhol Foundation and authentication board, Ronald Spencer, points out in a motion to dismiss, in order to assert a monopolization claim, the plaintiff must be a competitor in the relevant market. Mr. Simon-Whelan, of course, is not a competitor in the authentication market, if such a thing even exists, but a would-be seller of a Warhol work. Mr. Simon-Whelan's suit also raises the interesting question of what should constitute an authentic work, in the case of an artist who delegated so much to others. Mr. Simon-Whelan says that his painting was one of a series that Warhol, in around 1964, authorized a man named Richard Ekstract to create from an acetate he provided, as payment for some expensive video equipment.

In Mr. Ekstract's own account, which he gave to Vanity Fair in 2003, he said that Warhol delegated more of the work than usual, telling Ekstract to have the printer produce the painting from the silk screen, rather than doing this step himself, as he usually did. But Mr. Ekstract said that Warhol approved the work, and several of Warhol's former employees, dealers, and friends have said that they believe the Ekstract paintings should be considered authentic. The authentication board apparently disagrees. "To be an authentic anything," Mr. Spencer said, "the artist has to be involved not just in the conception but in the supervision and the execution."

He noted that, even assuming Mr. Ekstract's account is true, there is no evidence that Warhol specified how many were to be printed, what colors the image and the backgrounds should be, and what supports should be used. In 2004, the authentication board sent Mr. Simon-Whelan a letter (included as an exhibit in his suit) enumerating the factors in their rejection of his painting. Comparing his painting and the other Ekstract paintings with 11 1964 self-portraits in the catalogue raisonnée, the board noted that the authenticated works are all slightly different, while the Ekstract paintings are all identical. The background in the former group is painted by hand, while in the latter group it is printed. The former group are all on linen, while the latter are all on cotton. One outstanding question is what role, if any, Mr. Simon-Whelan's signed promise not to sue will play.

The suit invokes the submission agreement as further proof of conspiracy, but in fact, such an agreement is quite common. And in one case against the Pollock-Krasner Authentication Board, a judge ruled that the agreement was enforceable, and besides throwing the suit out, required the plaintiff to pay damages, including the defense's legal costs. The repeated attempts to charge authentication boards with monopolization reflects, not the logic of the claim (because there isn't any), but plaintiffs' feeling that such boards can wields an inappropriate, and perhaps arbitrary, power over the market in an artist's work.

Mr. Simon-Whelan's complaint asserts that the Warhol Art Authentication Board plays favorites in its decisions, tending to validate works submitted by dealers who are on good terms with the foundation and Mr. Fremont. Conversely, it argues, dealers and auction houses are reluctant to oppose the authentication board or the foundation, because they want to win to the right to do Warhol shows, or to secure commissions. Coincidentally or not, several museum curators declined to be interviewed for this article.
Prev Next