Over the last decade, art authentication experts have left the field at alarming rates, declining to give opinions on works for fear of expensive litigation. The suits brought against them have not only been for negligence or malpractice, but for statements of professional opinion. They may also have liability when stating that a work of art is not authentic and this causes a loss to the owner or someone else with an interest in the work. When an expert states that a work is not authentic, the dissatisfied owner has a number of different legal theories to choose from as a basis for a claim. Typical bases in recent cases have included defamation, libel, slander, unfair business practices, unfair competition, and disparagement. The core distinction in many of these doctrines is whether the speaker gave an opinion or made a statement of fact.
It is not unusual for the authentication of the work contemporary artists to be placed in the hands of a specific group of experts, often the artist’s friends, family, or gallerists. In some forms, the practice derives from the European droit morale, where the right to authenticate works lies exclusively with the artist, who has an absolute right to declare a work inauthentic. In France, for instance, where the right is perpetual, the right to authenticate works passes through the artist’s estate to either family or close friends. U.S. practice tends to be concentrated more in artists foundations, which often work with scholars to establish and confirm the artist’s authentic oeuvre.
But in recent years, many of these artists’ foundation authentication boards – for example the Pollack-Krasner Foundation, Inc. and the Andy Warhol Art Authentication Board, Inc. – have been the subject of litigation when they refused to authenticate works and include them in the artists’ catalogue raisonne. And as a result, they have ceased authenticating works. For the work of many artists in the U.S., finding any expert willing to risk providing an opinion on authenticity has become next to impossible. New York has proposed legislation that would provide protection to experts and authentication boards.
Whether or not the proposed art experts law is enacted, what is certain is that litigation over authentication disputes will continue.