Attribution of Authorship: Warhol

On 15 January 2010 another federal lawsuit was filed in New York City against The Andy Warhol Art Authentication Board. The first lawsuit was filed in 2007 by a London-based collector, Joe Simon; the recent claimant is a New Jersey-based collector, Susan Shaer: each owns one of a limited edition of a dozen Warhol Self-Portrait silk-screens made in 1964/5.

Simon is aggrieved that the Board was wrong to deny authentication of the work he owns and asserts is an authentic Warhol. Shaer’s grievance is broader and more fundamental: she challenges the lawfulness and validity of the Board’s entire standing and operations, in particular claiming that the Board’s frequent denials of Warhol’s authorship of works creates ‘artificial scarcity’ and so inflates the market value of The Andy Warhol  Foundation’s collection. Shaer’s claims are unprecedented in the art market. Her lawyers are drawing upon generic – not specifically art – business laws aimed at safeguarding the freedom of the capitalist marketplace: in the USA such laws are called ‘anti-trust and unjust enrichment’, and in Europe ‘competition’, legislation. A significant feature of the case is Shaer’s allegation that the Board is unlawfully conspiring and colluding with other key players to control the marketplace for Warhol’s works: the Andy Warhol Foundation, the Estate of Andy Warhol, and Vincent Fremont who is the current executor and exclusive sales agent for the Foundation – all of whom have been cited as co-defendants.

The common root of both lawsuits is the provenance of the edition of Self-Portraits. Warhol made an acetate of a photographic self-portrait, which he gave to his friend Richard Ekstract to make the silk-screens as decorations for a party celebrating the premiere of Warhol’s first underground video. Warhol gave the pictures to Ekstract in gratitude for his having facilitated the video production and. Ekstract gave some of the limited edition to partygoers.

Simon bought his silk-screen from the Lang & O’Hara Gallery, New York, in 1988 within a year of Warhol’s death, paying £120,000. He claims the work was authenticated several times by the Foundation, by the Estate, by Fred Hughes who was Warhol’s former business manager and sole executor, and by Vincent Fremont.  In 2001, Simon proposed to sell his picture for around £1.4 million, and it was submitted to the Board for authentication. It was not authenticated and, as is the Board’s normal practice, the picture was stamped on its reverse in black ink the word DENIED. Simon then researched and found documentation ‘demonstrating Warhol’s personal role in the creation and use of the Series’ in question, and resubmitted his work to the Board – together with the relevant documentation. It was again stamped DENIED: hence his 2007 lawsuit.

Shaer claims that the edition in question was created ‘at Warhol’s direction, through his employee Paul Morrissey, from an acetate personally created and chosen by Warhol’, and confirms Ekstract’s involvement in its production. She asserts that ‘this method of production was typical of Warhol’, and that ‘in so doing Warhol explicitly acknowledged his authorship’. In 1990 Shaer submitted her silk-screen to the Andy Warhol Estate for authentication (prior to the establishment of the Board in 1995). The Estate’s response was that it was ‘not able at this time to form an opinion’. Shaer also claims she has a letter from the Estate dated 31 October 1990 accepting that the picture was made from an acetate transparency created by Warhol, and that the estate had ‘no basis on which to doubt that the silkscreening of the work onto canvas was authorized by Andy Warhol’. Moreover, Shaer claims that in 2004 the Board wrote to her inviting submission of the work for authentication because ‘additional information had come to the attention of the Board since the date of the Estate’s opinion letter [of October 1990]’. She decided not to submit her work to the Board, believing that the resulting decision of the Board would have been a ‘forgone conclusion’ – to deny authentication, and thus damage its resale value in the marketplace. She therefore claims that ‘the Board had adopted a policy of systematically rejecting works from the series as part of its campaign to enforce a self-serving vision of Warhol’s legacy’.

From this starting point, Shaer’s lawyers have built more wide-ranging and serious arguments attacking the heart of the Board’s works and its relationship with Warhol’s Estate and Foundation, including the following. The six members of the Board are employees of the Foundation; the Foundation owns a collection of Warhol’s works valued at around US $500 million: there are commercial conflicts of interest between the Foundation and the Board. Because art market professionals throughout the world – auction houses, dealers, and so on – have generally accepted the exclusive authority of the Board and its decisions (as a matter of trade custom and practice, not as a matter of law or regulation), the Board can ‘systematically exclude Warhol from the marketplace’; this gives the Board ‘disproportionate power over the Warhol market’, and is anti-competitive/-trust. The Board requires anyone wishing to submit works for authentication to sign a written contract, which is non-negotiable, by which it is agreed that the Board will not give reasons for its decisions and against which there is no appeal; the Board wrongly seeks to render its decisions immune ‘from scrutiny and liability’. All in all, there is little or no market value in works denied authentication by the Board, which would otherwise fetch hundreds of thousands, possibly millions, of US dollars.

The Board’s lawyer in both cases, Nicholas Gravante Jr., is reported in the US-based ARTnewsletter to have said that the denial of authenticity of the two silk-screens is ‘a sideshow and very small part of the larger case, but even there, the evidence demonstrates that the Authentication Board got it right. The real issue in dispute in the lawsuit concerns Simon’s attempt to side-step the submission agreement he signed, which prohibits him from bringing precisely this kind of lawsuit ……… He is alleging that members of the Warhol Foundation and Authentication Boards entered into an unlawful conspiracy to deny authenticity to this work because they secretly wanted to drive up the price of Warhol work ……. We have yet to see a single document or any other evidence that supports that allegation. Neither the members of the Foundation nor members of the Authentication Board have ever had any incentive to deny authentic works’.

In relation to the Board’s requirement that any submission must be accompanied by a written agreement giving it immunity from liability for its decisions, such an agreement would be arguably invalid in the EU, where consumer protection legislation is generally stronger than in the USA.  The fact that such an agreement is non-negotiable, and purports to exclude all legal liability for the Board’s decisions and for its not giving reasons, might persuade courts in the EU that such an agreement is so unfair to the seriously weaker bargaining party (the submitter of the work to the Board) that the agreement and/or its unfair terms are unenforceable.

As for the anti-trust and collusion allegations, it is arguably unlikely that such claims would succeed in the EU courts. In the EU, artists have exclusive statutory moral rights to claim or deny authorship of their works during their lives; as do their estates for 70 years after death. These rights operate under US federal law during artists’ lives; but not after death.

The overlapping issues in these two concurrent federal lawsuits gives added momentum to the resolution of these important issues arising from the increasingly varied practice of visual artists.

©Henry Lydiate 2010

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.