Authenticity Certificates

Public and private collectors and art market professionals have started to request certificates of authenticity to accompany the transfer of ownership of works. What are they, how are they used, who provides them and what is their legal status?

Authentication of authorship of artworks has always been an important artistic and art business issue. Establishing true authorship is important to art historians, curators and critics; and to sellers, buyers, dealers, investors, insurers and auctioneers. In the absence of accurate documentation of a work’s provenance (from primary sale or gift through subsequent resales) academic experts and connoisseurs are often called upon to advise sellers and collectors of older works and antiquities. Respected catalogues raisonnés often meet scholarly and market needs but cannot do so for living and recently dead artists.
In the case of contemporary works, artists can create unique and arguably unassailable proof of their authorship. Written sale contracts or deeds of gift, signed by the artist, can record essential details of the primary/studio sale or donation: the work’s title, medium/s, dimensions, year/s of making, edition/series and so on, and stating that the work is the artist’s original. Many such documents have survived for centuries, suggesting that their execution by artists (and their patrons) appears to have been normal business practice throughout western art history. In modern times, however, such sensible business practices somehow became the exception, not the rule: hence the demand by second and subsequent collectors for authenticity certificates.
Ideally, certificates should be signed and dated by the artist and given to the first collector of the work – operating as a ‘passport’ to travel with the work as its ownership changes and obviating the need for any adjacent written sale contract/s or deed/s of gift to be passed on. It is perhaps because the vast majority of artists do not have their works regularly traded in the secondary market and have parted with their works without issuing such certificates (or written sale contracts or deeds of gift including assertions of authorship) that collectors and traders call upon them to do so once a secondary market for their works develops.

In January 2012, for example, there was wide media coverage of street artwork in Liverpool attributed to Banksy, whose official website (www.banksy.co.uk) offered no evidence in support of his authorship. It is widely known that Banksy does not sign his street works or offer online authentication – Bonhams, for example, refuses to deal with Banksy’s street works on the ethical basis of respect for the artist’s intention to communicate in the public environment. In 2008, Banksy’s collector online service (www.pestcontroloffice.com) began to authenticate his gallery works on paper and canvas following significant secondary market interest. Bonhams only handles Banksy consignments that have been authenticated by Pest Control.

After an artist’s death requests for authenticity certificates are often now made to their estates and/or foundations. Such requests make sound business sense, since they may provide a good link to people who knew the living artist and their works. But, equally, they may not: executors of the estate/foundation may have insufficient or incomplete knowledge or information about specific works, or may disagree with each other. This may result in an estate or foundation refusing an authenticity certificate, which refusal (with, but especially without, a written explanation) can irretrievably undermine a work’s cultural or market value. Even if a certificate is issued by an artist’s estate/foundation, it might be challenged by others claiming a greater or more intimate knowledge and expertise about a specific work, and so undermine a certificate’s probative value (and a work’s cultural or market value).
To avoid or address such problems, some notable artist’s estates or foundations have in recent decades established ‘authentication boards’,  comprising members with extensive knowledge and expertise about the deceased artist and his or her works, to operate independently and with integrity, and especially to have no personal or commercial interest in doing so – a labour of love. But even such boards may find their authenticity decisions challenged by others questioning their bona fides, credentials, or judgement (for or against authenticity). Similarly, re-sellers may find their assertions of authenticity being challenged, which is why they (and any dealers and auctioneers they may engage) increasingly request authenticity certificates from the most credible source possible. For example, the Pollock-Krasner Foundation’s authentication board was closed in 1995 and The Andy Warhol Foundation’s authentication board recently ceased to operate, both in response to very costly and time-consuming legal challenges to denials of authenticity.
Over the past century or so intellectual property laws have tried to address authenticity issues. The Berne Convention for the Protection of Literary and Artistic Works is an inter-governmental agreement first signed in 1886 by then developed countries, now by 164 nations to date, including the UK and US. It requires member states to pass laws automatically giving authors legal rights: droits d’auteurs. Artists’ rights fall into two broad types: economic rights that can be bought and sold, like any other property (copyright; le droit d’auteur); and non-economic or personal rights that cannot be traded (moral rights; droits moraux).
Moral rights include artists’ exclusive legal right to claim (or deny) authorship of their works when exhibited or communicated to the public (the paternity right; droit de paternité). In countries following the civil code system (developed in France during the 19th century, often called the business Francosphere and operating in around 60% of the world), the droit de paternité is enduring, can be inherited by an artist’s family/estate or foundation, eventually passing to the state in perpetuity. In countries following the common law system (developed in England over many centuries, often called the business Anglosphere and operating in around 40% of the world), the paternity right normally lasts for the artist’s life plus 50 years (70 in the EU) after death, and can be inherited by family, estate or foundation. Notably, under US federal law the paternity right normally lasts only during the artist’s life.
Laws have flaws, inherent or latent, and with the passage of time they can become unfit fit for purpose, unenforceable, and capable of evasion or circumvention. Although the moral right of paternity gives artists and/or their estates/foundations the exclusive right to determine authorship, legal challenges to their decisions may still be made. For example, in 1990 a French court tried a suit by the owner of a work by the French painter Jean-Michel Atlan (1913-60) against the artist’s estate and the author of his catalogue raisonné. The collector claimed that the estate had wrongly refused him an authenticity certificate and that the author had excluded his piece from the catalogue raisonné. After hearing evidence from experts on Atlan’s oeuvre and the work in question, supporting authenticity, the court ordered the work to be included in the catalogue raisonné. However, it also accepted that the estate held a bona fide contrary opinion; and that, as exclusive owners of Atlan’s droit de paternité, they were entitled to deny an authenticity certificate – which they chose to do.
Living artists have the exclusive right to prove authorship of their works through exercise of their moral right of paternity; they also have the option to use written contracts as a valuable business tool – thereby resolving authentication.
© Henry Lydiate 2012

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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.