This is not by me

Published in June 2006

The Andy Warhol Art Authentication Board's denied authentication of works that many have otherwise taken to be by Andy Warhol has been in the news since the winter of 2003 when the collector Joe Simon first went public on the board's denial of a silkscreen painting that he had bought for $195,000 as an investment in 1988, within a year of Warhol's death. Since then there have been numerous reports of disgruntled collectors and dealers who have fallen foul of the Authentication Board. Joe Simon's painting, like many, appeared to have a well-established provenance.

Warhol had made an acetate of a photographic self-portrait, which he gave to a friend, Richard Ekstract, to make the silk-screens as decorations for a party celebrating the premiere of Warhol's first underground video. Ekstract sent the acetate to a printer. After the party Warhol gave the pictures to Ekstract in gratitude for his having facilitated both the video production and the party. Ekstract gave some of the limited edition to partygoers. The Andy Warhol Foundation (established by Warhol through his will) authenticated Simon's picture, as did Fred Hughes who was the sole executor of Warhol's will and his former business manager. Recently, Simon proposed to sell his picture for around £1.4m, and a potential buyer submitted it to the Andy Warhol Authentication Board, Ink. Information about the operations of the Andy Warhol Art Authentication Board, Inc is hard to find. It is a limited liability company registered in New York State.

Its website is minimal, merely saying 'a procedure has been established for the authentication of works of art purportedly by Andy Warhol', that it 'does not offer any appraisal services', gives Claudia Defend as the contact name, a Manhattan address and telephone number. Its website address is through the Andy Warhol Foundation For Visual Arts, Inc:

The Warhol Foundation is a separate limited liability company also registered in New York State, and its website offers the link directly to the Art Authentication Board - without further explanation of their legal or business relationship. The Warhol Foundation, not the Art Authentication Board, was established through Warhol's will and was therefore the legal body specifically trusted and empowered by him to safeguard and promote his artistic legacy. Indeed, the Warhol Foundation has commissioned and already published two volumes of Warhol's Catalogue Raisonne (paintings and sculpture from 1961 to 1969), with more volumes in train.

Given these uniquely authoritative publications sponsored by the Warhol Foundation, it is difficult to fathom why it does not itself authenticate authorship of 'works purportedly by Andy Warhol'. Applicants to the Art Authentication Board say that it does not certify nor discuss why it denies authentication (to around one in six submissions). It is widely believed that the board's essential criterion for authenticating a work is whether it is satisfied that there is good evidence of Warhol having supervised and overseen its creation. Given the common knowledge and ample documentary evidence of Warhol's unique and deliberately perverse ways of working – especially during The Factory years - it might have again been expected that the Warhol Foundation was the best body to understand such ways of working, to interpret and decide any authentication issues.

Art historian and friend of Warhol John Richardson owns works given to him directly by Warhol, but has said that even he would not 'dare submit these things to the board for fear of being told they're not by Andy', and questions whether it is possible to authenticate Warhol’s output: 'he used to do these silk-screens, and assistants would come in at night and run off a few copies for themselves. But did they make them any less authentic than the ones they ran off for Andy during the day?’ For many years Warhol engaged teams of assistants to execute his ideas. Paul Morrissey, Warhol's former manager of The Factory: There's no such thing as an authentic Warhol'. Ronnie Cutrone, a Warhol assistant: 'Actually, Andy rarely got involved. He had an ability to let go and say, "You do it".

It was easy to rip off his paintings and sign them'. Sam Green, who curated some Warhol shows: 'I would do his signature. Andy only cared about authorship when it came to selling.’ Warhol actively encouraged such challenges to hitherto traditional approaches to authorship: why don't you ask my assistant Gerard Malanga some questions? He did a lot of my paintings'; and apropos his 'Flower paintings' 'I decided I won't sign the fake ones that are turning up all over Europe - the ones that people told us they bought from Gerard. Maybe I should do new ones and make good on the fakes in Europe. I don't know. I'll see.' On the back of some of the fakes made of his print portfolios (Marilyn Monroe, 1967 and Flowers, 1970) Warhol endorsed 'this is not by me. Andy Warhol.’ Authorship is important not only for the purposes of art history and criticism, it also has great economic significance. As Warhol's works continue to circulate throughout the secondary global art market place, vast sums of money have been and continue to be invested in their purchase and sale, and the achievement of huge profits (or losses) will largely depend on buyers' (and/or their agents') satisfaction as to authenticity. The Art Authentication Board appears already to have established itself with art market professionals as the preferred authentication authority, not the Warhol Foundation or other independent Warhol experts. The board requires all applicants submitting works for authentication to sign an undertaking not to challenge the board's decision in court.

The validity of this purported waiver of legal rights has yet to be legally challenged. The strongest legal contestant would be the foundation, since it probably owns Warhol's statutory moral rights – both to claim or to prevent false attribution of his authorship. Under US law these rights last for the same length as copyright (in Warhol's case probably for decades to come), but only in respect of works in the artist's ownership at death (and which were presumably inherited from Warhol by the foundation). In the case of works not owned by Warhol at his death, these rights will have expired on Warhol's death.
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