Andy Warhol

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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.      …
Continue Reading Authenticity and Attribution

In the press and in popular culture, art theft and art forgery tend to be linked, and are often glamorized to a greater or lesser extent.1 The reality, however, is usually far more mundane, if not outright seedy (although efforts at recovery often have admirable, even >heroic overtones). In recent years, there have been several highly-publicized instances of forgery, including the sales of fake works by modern masters like Mark Rothko and Jackson Pollock that brought down the eminent Knoedler Gallery, and the extraordinarily successful fakes of the German painter Wolfgang Beltracchi, who after his fraud was disclosed, became the subject of many press articles, newscasts, and even a documentary, “Beltracchi: The Art of Forgery” (2014).

Unlike art thieves, however, art forgers and art fakers sometimes go on to a secondary career as fake-artists in their own right, enjoying a kind of glamorous notoriety, as Beltracchi has done. But Beltracchi is not alone in this. John Myatt now sells his “legitimate fakes,” Others have included Elmyr de Hory, Eric Hebborn, whose posthumous reputation as a master forger resulted in a recent auction of a number of his drawings in the style of old masters, and Mark Landis, who, somewhat uniquely, donated his faked works to museums. Perhaps the most famous forger was Hans van Meegeran, who forged Vermeers in pre-war Germany, selling one to Hermann Goering. Fakes and forgeries are even not infrequently the subject of exhibitions highlighting the forger’s own art. Some commentators have even suggested that fakes may be “the great art of our age.”      …
Continue Reading Authenticity, Fakes and Forgeries