Works by African-American artists have recently been achieving unprecedented interest in both museum and art-market worlds, possibly stimulated by the critical success of Tate Modern’s 2017 show ‘Soul of a Nation: Art in the Age of Black Power’, now touring the US. The high profiles of this and similar exhibitions, together with the existence of a substantial body of new-to-the-market work, may have tempted crooks to seek opportunities for fast bucks by foisting fakes on ill-informed and unsuspecting collectors and art-market professionals.

This raises yet again the growing issue of authentication of works of living and recently deceased artists. Establishing authenticity of works by deceased artists is an understandable risk. But in recent times fake works purported to be by Kazimir Malevich, Salvador Dalí, Mark Rothko, Jackson Pollock, Robert Motherwell, Andy Warhol – even Damien Hirst and Banksy – have been fraudulently traded as authentic. Modern and especially contemporary works lend themselves to faking because many are created via non-traditional media and techniques, where the ‘hand of the artist’ plays less of a role in a work’s execution. It is increasingly the case that the author of contemporary work is the person who conceives the original idea, and controls and funds arrangements for its being made/fabricated by or with aid of studio assistants and/or independent external subcontractors.

Parties interested in whether a contemporary artwork is authentic might in business jargon be called ‘stakeholders’. Some interested stakeholders may have little or no influence on whether a work is authentic; others may have substantial influence. There are four basic types of potential authorship stakeholder, as set out below. Let us consider each category.

High interest and high influence stakeholders. It is axiomatic that artists have the greatest influence over authorship of their works, and therefore also over establishing authenticity after works have left their possession. It is an artist’s unique prerogative to decide whether or not a work is, for example: complete; unique or one of an edition or series; publicly exhibitable; for sale or gift; merchandisable as reproductions; or to be archived as an asset for their estate after death. Decisions on such key matters are of course artistic, but they are also backed by key laws giving artists unassailable rights relating to property ownership, sale of goods, copyright, moral rights of paternity and integrity, wills and inheritance.

Artists interested in exercising such rights throughout their careers build into their practices various ways of asserting and protecting the truth of their authorship, including for example: signing a work in some way (perhaps on its face, reverse, margin, base, frame); signing associated documentation such as a sale agreement, deed of gift, copyright licence for merchandising reproductions, or a will or last testament. In recent years many artists have devised and signed authenticity certificates describing a work and attesting its authenticity, which are given to collectors of a work directly or to a representative agent/dealer. Some artists who did not supply such signed certificates when they parted with work in the past now do so on request from a current owner or their agent/dealer (from whom some artists require a fee for the service).

Estates of deceased artists are often asked by interested parties (such as auction houses and dealers wishing to offer a work for sale without an artist’s signature on the work or associated documentation) to authenticate works. Such requests can be tricky and burdensome for estates. They may, for example, have executors or trustees who have insufficient expertise or knowledge of their artist’s works to support authentication, leading to requests being refused. It is prudent and sensible that artists should ideally exercise foresight and diligence during their lifetimes by keeping records of their works (completed or otherwise), their locations (whether self-stored, possessed or owned by others) and related information. To avoid possible post-mortem authenticity issues for their estate administrators, it is good practice for artists to create and maintain a detailed and comprehensive inventory of their works and methodologies throughout their careers, possibly using some of the excellent specialised commercial software now available.

Other stakeholders who may have strong influence on, and interest in, authorship of contemporary works are those who have engaged with an artist in person (or perhaps with the estate), for example: patrons and commissioners of new works; institutional and private collectors acquiring works directly from an artist; agents and dealers who have represented an artist and have taken works directly on consignment to achieve first sales. In such cases, demonstration of true authorship is likely to be strongest if the stakeholder has artist-signed work and/or associated documentation.

High interest and low influence stakeholders. These with a high interest in authorship of contemporary works are most likely to be art-market professionals. The art market has achieved astonishingly high prices for the resale of contemporary works in the past decade or so. The stakes are high for buyers and sellers, as well as for auction houses and dealers, in terms of margins for financial profitability and return on investment. Underpinning all such economic activity is the establishment of true authorship of works traded, in which contemporary art-market players have arguably the highest interest. But do they have high influence? They certainly have far less influence than the artist, and therefore endeavour to trade only when there is some form of artist-signed authentication.

In addition, art-market professional traders invariably include in transactions documentation dealing with provenance of ownership of works being re-sold, but this may not adequately deal also with authentication, sometimes merely stating that the work is traded ‘as seen’. Put another way, art-market professionals aim to safeguard their reputations, and legal liabilities in client transactions, through careful wording in their trading documentation. It is important to note that decisions of courts in legal disputes over authenticity are binding only on parties to re-sale transactions disputed before the courts, and are not legal precedents that bind the remainder of the art market as a whole to any judicial authenticity findings.

Low interest and high influence stakeholders. Those with relatively low interest in authorship, but who undoubtedly have strong influence, are artists who let works leave their hands without secure authentication. It is surprising that many artists – especially those young and as yet unknown – still fail to exercise their unassailable rights in this respect.

Other stakeholders with relatively low interest in authorship, but who may have strong influence, are likely to be specialists in stated types of contemporary work or work of particular artists. Such stakeholders may include specialist personnel working for: auction houses, public-facing museum and gallery collections, art fairs as vettors of dealers’ works for sale, academics and critics, art journalists and commentators. Common to each such specialist is the fact that their interest may be publicly low or dormant until their interest is activated by a news story or event, when their influence on the issue of authenticity may be powerfully persuasive. Until roused to make their opinions public, such stakeholders are likely to exhibit relatively low interest and influence.

As the market finds itself now under yet further attack from the unscrupulous, it makes even more sense for these basic but important issues around authentication now to be addressed.

© Henry Lydiate 2019

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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.