Why Authentication Has Become a Risky Business - Fordham Intellectual Property, Media & Entertainment Law Journal
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Why Authentication Has Become a Risky Business

Why Authentication Has Become a Risky Business

What am I looking at? What am I buying? What do I own?1 The increasing concern about the authenticity of art works is directly correlated to the rise of the art market, but also to the growing sophistication of the art-minded public.2 However, while public demand for opinions is increasing, willingness of experts to render those opinions is decreasing, and this primarily because of the rising risk they face of being held liable for offering such opinions.3

 

In theory the expert who, in response to an inquiry within the range of his expertise, gives an opinion in good faith about a work of art, may not be held liable for the offered opinion.4 In practice however, if the sums flowing through the global art market have rocketed, so have the number of unsatisfied art owners willing to engage in costly litigation.5 The fact that an expert’s opinion can instantly make or destroy a fortune has had an adverse effect on freedom of expression.6 This has resulted in a growing fear of liability, which in turn has begun to affect the state of available scholarship.7 The situation is in fact rather ironic, because had it not been for credible and confident attributions the prices would not have risen so high, yet now “these astronomical sums are driving away the specialists who made them possible in the first place.”8 In one of her works, author Patricia Cohen accuses “art’s celebrated freedom of expression” of no longer extending “to expert opinions on authenticity.”9

 

In recent years, the fear expressed about the growing threat of litigation following expert opinions on authentication has proven to be well validated. Experts have been sued on numerous grounds, ranging from: “expressing negative opinions that make artwork unmarketable, expressing positive opinions that are relied on by purchasers but later called into question, omitting a work from a catalogue raisonné, and even declining to express an opinion or finding that it cannot determine whether a work is authentic or not.”10 Just recently, in conjunction with the opening of the artist’s retrospective at the Guggenheim Museum in New York, a lawsuit was filed against the members of the Agnes Martin authentication committee and the experts behind the artist’s catalogue raisonné.11 The plaintiff, a London Gallery, argued that the authentication committee had unlawfully declared 13 works fake by excluding them from the catalogue raisonné, thus rendering them valueluess.12

 

Given the strong likelihood of being sued, experts have recently preferred to stay silent rather than risk spending millions on legal fees in a lawsuit against buyers or sellers unhappy with their conclusions. The consequences of such silence are the increased chance that works remain unattributed, or that copies, forgeries, or wrongly attributed works remain in circulation while newly discovered work go unrecognized13. This dramatic increase in authentication lawsuits has not only had a hindering effect on authentication, but it has also led certain committees – the Pollock-Krasner Authentication Board, the Roy Lichenstein Foundation, the Andy Warhol committee, the Jean-Michel Basquiat Foundation, the Keith Haring Foundation, to state a few – to stop authenticating works altogether and ultimately dissolve. The underlying reason is consistent throughout the committees: “the risks and potential costs associated with determining authenticity are simply too high.”14


  1. Spencer, Introduction, in R.Spencer, The Expert Versus the Object, Oxford University Press, 2004, p. xi.

  2. Id. p. xii.

  3. Id. p. xii.

  4. T. E. Stebbins Jr., The Art Expert, the Law, and Real life, in R. Spencer, The Expert Versus the Object, Oxford University Press, 2004, p. 135.

  5. E. Kinsella, A Matter of Opinion, ArtNews, Feb.28, 2012, http://www.artnews.com/2012/02/28/a-matter-of-opinion/ [https://perma.cc/9ZQG-W7ZE].

  6. P. Cohen, In Art, Freedom of Expression Doesn’t Extend to « Is it Real ? », The New York Times, Jun.19, 2012, http://www.nytimes.com/2012/06/20/arts/design/art-scholars-fear-lawsuits-in-declaring-works-real-or-fake.html [https://perma.cc/3DLV-NAHR].

  7. R. Cohen, Priceless, The New Yorker, Oct.8, 2012, http://www.newyorker.com/magazine/2012/10/08/priceless-2 [https://perma.cc/3PHY-BFMG].

  8. Id.

  9. P. Cohen, In Art, Freedom of Expression Doesn’t Extend to “Is it Real?,” The New York Times, Jun.19, 2012, http://www.nytimes.com/2012/06/20/arts/design/art-scholars-fear-lawsuits-in-declaring-works-real-or-fake.html [https://perma.cc/3DLV-NAHR].

  10. J. Wallace, Art Law on Expert Opinion and Authenticity, Nov.1, 2012, https://news.artnet.com/market/the-liability-of-art-experts-27666 [https://perma.cc/S5M9-5ESP].

  11. Filed in New York’s Supreme Court on 17 October 2016 by London’s Mayor Gallery, the lawsuit seeks $7.2m in damages.

  12. A-R. Abrams, Gallery Files Lawsuit Against Agnes Martin Authentication Committee, Oct.25, 2016, https://news.artnet.com/art-world/mayor-gallery-lawsuit-agnes-martin-dispute-718409 [https://perma.cc/7764-RU64].

  13. Cohen, In Art, Freedom of Expression Doesn’t Extend to « Is it Real ? », The New York Times, Jun.19, 2012, http://www.nytimes.com/2012/06/20/arts/design/art-scholars-fear-lawsuits-in-declaring-works-real-or-fake.html [https://perma.cc/3DLV-NAHR].

  14. E. Kinsella, A Matter of Opinion, ArtNews, Feb.28, 2012, http://www.artnews.com/2012/02/28/a-matter-of-opinion/ [https://perma.cc/9ZQG-W7ZE].

Céleste Dufournier

Céleste is an LL.M. student specializing in Intellectual Property and Information Technology Law.