Trust me its a fake
Pierre Valentin - Head of the Art & Cultural Assets Group at Withers LLP,
London Features Authentication issues

Published in 01/07/2004

A lawyer suggests that the decisions of expert committees should not be beyond the reach of the law.

Auction houses will generally decline to auction a work of art if it does not feature in the artistís catalogue raisonne right, which is generally perceived to be the definitive and exhaustive catalogue of an artists work. The inclusion of a work of art in the catalogue raisonne right 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 artists work.

Such committee may either be appointed by the holder of the artists moral rights, or it may be self-proclaimed. It often holds some or all of the artists 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 artistís 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 artists heirs inherit the custodianship of his/her moral rights and this generally lasts as long as the copyright in the artists 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 artists 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 artists 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 artists 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 artists catalogue raisonne right and the opinion of the expert with access to the artists 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 Boards 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 Simons 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.
Prev Next