Who Has the Last Word on Authenticity: Judge or Artist? - Fordham Intellectual Property, Media & Entertainment Law Journal
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Who Has the Last Word on Authenticity: Judge or Artist?

Who Has the Last Word on Authenticity: Judge or Artist?

In a market where the right name on a canvas can change a creation from being worthless to being worth millions, who has the last word in authorship authentication is critical.1 Typically, authentication disputes arise when the artist can no longer say whether they were the creator of a work – for example, when the artist is deceased.2 In these cases, attributing a work of art to a specific artist can be done through a certificate of authenticity that came along with the art when it was purchased, through provenance, through forensic testing, or through a qualified authority considered an expert in the art world who has extensively worked with artworks by the supposed artist of the work in question.3 The word of an expert is not final.4 It is not uncommon for an artwork’s owner, disgruntled with an expert who has doubted the veracity of their art or the documents accompanying the work, to take legal action against the expert and demand that a judge or jury have the last word in the discussion.5

What is uncommon, however, is for an owner to bring legal action against a living artist while seeking out a court of law to determine the authenticity of the work.6 This is exactly what happened to Peter Doig, an internationally renowned artist, after he denied creating a painting, signed “Pete Doige 76,” which was to be sold at auction as one of his early works.7 The work in question was a desert landscape reminiscent of the dreamlike paintings for which Doig is famous.8 With works by Doig routinely selling at auction for as much as $10 million, including one painting being sold for more than $25 million,9 Doig disavowing the work in question dropped the painting’s market price by as much as $7 million.10 Robert Fletcher, the owner of the 40-year-old painting, and Peter Bartlow, owner of Bartlow Gallery Ltd. and the dealer selling the painting, sued Doig for $5 million in damages and sought a declaratory judgment that Doig created the artwork.11

Fletcher, a former corrections officer at Thunder Bay Correction Center in Canada, claimed he watched Doig paint the landscape in 1976 while the artist was incarcerated at Thunder Bay. He later bought the work for $100 after he became the young inmate’s parole officer.12 Fletcher had the painting displayed in his home since he bought it. One day he was told by a friend that the work was by a famous artist.13 Fletcher watched a video of Doig speaking at a college and recognized his facial expressions and mannerisms as that of those which belonged to the young man he bought the painting from, and believed to be certain that the young man and Doig are one in the same person.14

From 2013 to 2016, Doig mounted an expensive defense and was forced to prove that he did not paint the picture in question.15 At the time the painting was made, Doig was only 16 or 17 years old, lived in Toronto, and was going to school.16 Doig claimed that he was never incarcerated or that he has ever been to Thunder Bay.17 Doig and his lawyer also identified Peter Edward Doige, who they believe was the real artist behind the painting, who died in 2012.18 Marilyn Doige Bovard, the sister of Peter Edward Doige, testified that her brother was at Thunder Bay, painted, and had mentioned in the past the painting in question.19

Although, a judge, from the United States District Court for the Northern District of Illinois, dismissed the claim for damages and found that there was no way Doig could have painted the landscape, the fight to keep his name from being attributed to the painting is not over yet.20 Indeed, years of litigation likely remain for the parties as Fletcher and Bartlow have filed an appeal with the United States Court of Appeals for the Seventh Circuit.21

In reality, Doig has already won before a court of law. Of course, that could very well change before the Seventh Circuit. Regardless of these facts, would it really have mattered if the District Court Judge found in favor of Fletcher instead of Doig? In discussing the decision in Fletcher v. Doig, Amy Adler, a New York University law professor, stated that “the law is, in a sense, irrelevant here” because “there are different understandings of what authenticity means in the art world and the legal world.”22 Additionally Frank K. Lord IV, a partner at Herrick’s Art Law Group, concurred that the ultimate decision as to what the painting was worth would be determined by the art market and not by a judge.23 Art law experts have demonstrated a general consensus that, although this case is unique in its facts and, indeed, is possibly the first of its kind, it nevertheless has very little effect on other artists and future litigation.24 If this case resulted in the judge finding in favor of Fletcher, other artists may have found an increase in owners of artwork bringing similar lawsuits. Yet that is already a possibility regardless of the outcome of this case.25

In the end, an artist alive influences the market more so than a judge ever will. Only in the grave does an artist’s market influence no longer carry greater influence than a court of law.

  1. Andrea Rush, Fletcher v. Doig: A case of refuted Authorship and a role for alternative dispute resolution, WIPO Mag., Feb. 2017, at 35, 36.

  2. Graham Bowley, Peter Doig Says He Didn’t Paint This. Now He Has to Prove It., N.Y. Times (July 7, 2016), https://www.nytimes.com/2016/07/10/arts/design/peter-doig-painting-lawsuit.html [https://perma.cc/BN28-4JK4].

  3. Evangelyn Delacare, How Do You Authenticate A Painting?, Canvas: A Blog by Saatchi Art (Aug. 18, 2016) https://canvas.saatchiart.com/art/how-do-you-authenticate-a-painting [https://perma.cc/YY8Z-6D4V].

  4. Colin Moynihan, In Knoedler Art fraud Trial, Expert Testimony on Fakes Weighs Heavily, N.Y. Times (Feb. 1, 2016), https://www.nytimes.com/2016/02/02/arts/in-knoedler-art-fraud-trial-expert-testimony-on-fakes-weighs-heavily.html [https://perma.cc/6XBY-MR8N] (discussing the role of experts in the Knoedler & Company fraud trial, including one expert who testified that “he had seen other fake paintings Knoedler was selling and had accepted them as genuine.”).

  5. Bowley, supra note 2.

  6. Art Law Experts Weigh In On Peter Doig Authentication Case, artnet News (Aug. 29, 2016), https://news.artnet.com/art-world/peter-doig-lawsuit-art-experts-599489 [https://perma.cc/JU6W-CV83].

  7. Rush, supra note 1.

  8. Patrick M. O’Connell, Judge rules famous artist did not paint landscape at center of lawsuit, Chi. Trib. (Aug. 23, 2016, 8:13 PM), http://www.chicagotribune.com/news/local/breaking/ct-peter-doig-painting-ruling-met-20160823-story.html [https://perma.cc/3KEW-2FNT].

  9. Bowley, supra note 2.

  10. Rush, supra note 1.

  11. “Extremely Rare” Authenticity Case Causing Concern Among Art Law Experts, Art Law & More (Aug. 11, 2016), https://artlawandmore.com/2016/08/11/extremely-rare-authenticity-case-causing-concern-among-art-law-experts/ [https://perma.cc/6Z4B-WMMG].

  12. Bowley, supra note 2.

  13. Id.

  14. Id.

  15. “Extremely Rare” Authenticity Case Causing Concern Among Art Law Experts, supra note 11.

  16. Bowley, supra note 2.

  17. Id.

  18. Id.

  19. Id.

  20. O’Connell, supra note 8.

  21. Fletcher v. Doig, No. 16-3508 (7th Cir. Sep. 23, 2016).

  22. Art Law Experts Weigh In On Peter Doig Authentication Case, supra note 6.

  23. Id.

  24. Id.

  25. Id.

Oksana Soutus

Oksana Soutus is a second-year student at Fordham University School of Law, where she is a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal and Mediation Clinic. She has an undergraduate degree in Legal Studies in Business from Hofstra University and loves animals, especially narwhals.