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Art Law: Topic 12 - Authenticity and Art Forgeries

Issues of Authenticity

  • General Context:

    • Few pieces of art can be reliably traced back to the artist after they have passed away and after an extended period (e.g., 100 years).

    • The issue of originality often becomes a matter of heresy in legal contexts.

  • American Position on Originality:

    • In the U.S., it is not possible to warrant that an old artwork is original.

    • Instead, it involves a warranty of reasonable grounds to believe the artwork may be original.

    • Relevant cases:

    • Jendwine v Slade (1797): 170 Eng Rep 459

    • Power v Barham (1838): 111 Eng Rep 865 74.

    • Reference: L. D. DuBoff and C. O. King Art Law (6th ed, West Group, Minn, 200) at 74.

    • See also: Rod Thomas, "Buying investment art, authenticity, risk, and a four proof framework," Art, Antiquity and the Law (2022) Vol. XXVI1, (Issue 2) Art Antiquity and the Law 133.

Attribution Process

  • Concept of Attribution:

    • Often described using the metaphor of a three-legged stool:

    1. Science

    2. Provenance

    3. Connoisseurship

    • None of these can definitively prove the work is by the artist but they can indicate that it is not by that artist.

    • There is usually a lack of unanimity regarding opinions on attribution.

    • Common terminologies related to attribution include:

    • “Studio of Rubens”

    • “School of Rubens”

    • “Follower of Rubens”

    • “Attributed to Rubens”

    • “Style of Rubens”

    • “PP Rubens”

Proof Types

  • 1. Science as a Proof:

    • Scientific methods (e.g., examining materials) can demonstrate that a specific artwork could not have been created by the artist if the materials did not exist during the artist's working period.

    • This constitutes a form of negative proof.

    • X-ray analysis can show inconsistencies in style but is less persuasive since artists may have fluctuations in technique.

    • Example: Vermeer and Han van Meegeren (see Wikipedia article on Han van Meegeren).

  • 2. Provenance as a Proof:

    • Provenance refers to a documented chain of ownership and attribution to the artist.

    • This is currently significant for determining authenticity within the art world.

    • Considered a weak link, since documents can be forged, and for artworks of antiquity, gaps in the chain often exist.

    • Notably, the Prado works in Madrid may be exceptions due to their provenance verification.

    • There are discussions on using blockchain technology to improve provenance verification, though debated; effective only when the genesis token is issued, but real-world complications persist.

  • 3. Connoisseurship as Proof:

    • In New Zealand, connoisseurship can be conflated with pretentiousness.

    • Definition: Connoisseurs evaluate art using their experience pertaining to style and technique. Their judgment relies on intuition, empirical evidence, and a disciplined analytical method. Responsibilities include authorship attribution, validating authenticity, and assessing quality.

    • Considered opinion evidence, not factual evidence and can be challenged in court based on:

    1. Lack of qualifications/reputation.

    2. Insufficient consideration of foundational materials.

    3. Weak methodology.

Liability and Judicial Considerations

  • Balance of Probabilities:

    • Few connoisseurs universally agree on the authenticity of every artwork.

    • Notable issues arise when artists experiment, complicating determinations of attribution.

    • Legal liability can ensue for connoisseurs, especially when giving or withholding opinions.

    • Connoisseurs might conclude a piece isn't the artist’s work; however, this may not serve as compelling proof that it is.

  • Judicial Quotes:

    • Lord Evershed MR in _Leaf v. International Galleries [1950] 2 KB 86 at 94**:

    • “The attribution of works of art to particular artists is often a matter of great controversy and increasing difficulty as time goes on.”

    • Nourse LJ in _Harlingdon & Leinster v. Christopher Hull Fine Art Ltd [1991] 1 QB 564 at [37]**:

    • “Almost any attribution to a recognised artist, especially of a picture whose provenance is unknown, may be arguable.”

Case Studies and Examples

  • Leonardo’s Salvator Mundi:

    • Known through approximately 20 copies by other artists, painted around 1500.

    • One of fewer than 20 known works by Leonardo, acquired for less than US$10,000 by a consortium of art dealers.

    • Subsequently authenticated as a Leonardo painting, sold at Christie's in 2017 for US$450,312,500, setting a record.

    • Current unknown status and concerns regarding authenticity exist; Matthew Landrus suggested only 5-20% may genuinely be Leonardo’s work.

  • Elizabeth Durack (aka “Eddie Burrup”):

    • An Australian artist who painted Aboriginal-style works under a male alias, later revealing her identity in 1997.

    • Legal implications of her actions fell under “cultural fraud” and cultural misappropriation concerns.

    • Died in 2000; her works continue to sell well.

    • Raises questions about the fate of art when it changes hands and is presented in the market.

  • Legal Definitions in New Zealand:

    • Per the Crimes Act 1961, specifically clause 240 regarding deception:

    • (1) “Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right… obtains ownership… directly or indirectly.”

    • (2) “In this section, deception includes false representation, omissions to disclose material particulars, or any fraudulent device intended to deceive.”

Psychology of Forgery

  • Motivation for Forging Artworks:

    • Most forgers are often “failed” artists seeking validation by fooling experts and wealthy buyers.

    • There’s a perceived complicity within the art world and public that promotes forgery:

    • The excitement of discovering a new “masterpiece,” even at a discount.

    • The democratization of art leading to significant price surges over the past decades.

    • The rise of the internet exacerbates the situation as eager buyers purchase unseen works.

    • Once invested in a piece, buyers may resist acknowledging being duped.

  • Example of Donald Trump’s Renoir Claim:

    • Trump claimed a Renoir on his jet was valued at $10 million. Experts disputed its authenticity, stating the original is found at the Art Institute of Chicago.

    • He seems to believe his own narrative of authenticity.

Reflections on Forgery Culture

  • Interview with Art Forger Ken Perenyi:

    • New Zealand lacks a statute of limitations on crime which presents unique legal challenges.

    • Does not navigate legal issues involving passing off of artworks.

    • Current practices of forgers sometimes involve disclaiming their works as copies upon sale, raising ethical questions.

    • Forgers often admire the artists they replicate but neglect the damage to these artists' reputations.

    • Comparing art forgery to counterfeiting money raises ethical dilemmas regarding the social acceptance of forgery within the art community.

Art Market Dynamics in New Zealand

  • New Zealand Art Market:

    • Many artworks from New Zealand artists active since around 1950 are available in the secondary market.

    • Consumers expect auction works to be authentic, differing from Europe and America.

    • Connoisseurship in New Zealand is perceived to lack rigor.

    • Art purchases are often driven by name recognition rather than artistic knowledge.

    • Dealers and valuers authenticate artworks, but there are instances of poorly executed copies being sold.

    • Concerns of complicity within dealers, valuers, and the buying public regarding authenticity.

Notable Case of Karl Sim (1923-2013)

  • Background:

    • A self-described “failed” artist with socialist beliefs who forged works of key artists, including Goldie.

    • Produced authentic-looking documents to establish provenance.

    • Found humor in deceiving credible art experts with his forgeries.

    • Successfully sold his works and had them certified as originals, enabling him to introduce them to the market at discounted rates.

    • Notably caught in a 1984 celebrity trial, resulting in community service and a fine.

    • Continued forgery undertakings until his death in 2013 with plans for a book published posthumously in 2019.

Ongoing Art Forgery Events

  • “Erring for Art: Fakes and Forgeries Exhibition”:

    • Held bi-annually in Mangaweka, focusing on original takes on famous artworks with artistic twists, honoring the legacy of Karl Sim, New Zealand's only convicted art forger.

Political and Public Reactions

  • Helen Clark's Controversy (2002):

    • As PM, signed a piece of art she did not create for charity, sparking investigation and discussions on forgery.

    • The auction price at $1,600 and the subsequent police investigation brought attention to the commonality of such practices among politicians.

    • Expert commentary suggested such contributions are not typically genuine, raising ethical implications.

    • Legal consequences for forgery can extend to severe penalties, such as up to 10 years in jail as per New Zealand law.

Resources and Investigations

  • Freemanart International:

    • Offers investigations into the authenticity of artwork including scrutiny of forgeries, false documentation, and potential fraud litigation.

    • (Website: http://www.freemanart.ca/New_Zealand.htm)