Dealing in Fakes

Since the criminal prosecution of the late and celebrated Tom Keating in the 80s, the UK has not experienced serious allegations of sales of forged or counterfeit artworks although there was in recent years an allegation made that a Utrillo placed for public auction in London was not in fact made by the painter.

That matter was settled before any legal proceedings were launched, with the work being withdrawn voluntarily. This has not been the case in the USA.

Correspondents have recently drawn to our attention a number of legal proceedings in the USA where dealers have been investigated by the FBI and successfully prosecuted before the criminal courts for selling ‘fakes’, and have asked about the legal position in the UK: Apparently, the New York Times recently carried stories of art dealers successfully challenging auctioneers offering for sale works purportedly made by Jasper Johns, Chagall, and De Kooning. There were also reports in recent years of successful prosecutions of a gallery in Hawaii which sold certificates of authenticity purportedly given by Dali, and of a Chicago dealer who sold limited edition prints purportedly made by Picasso, Miró, Chagall and Dali: both dealers were convicted and fined for offenses of fraud and forgery.

In the UK, there are several legal deterrents against the would-be fraudster, and also against the innocently mistaken dealer or seller.

False Trade Descriptions

The Trade Descriptions Act 1968 makes it a criminal offence for anyone to apply a false trade description to goods in the course of business. The offence is one of ‘strict liability’, which means that even if a person innocently, but wrongly, describes goods for sale of a certain description, they will be guilty; and it is no defence for such a person to offer some form of disclaimer. However, an ‘innocent’ offender can give evidence to the court at sentencing stage to mitigate their offence, and to try to reduce their sentence.

The Act also creates a second offence of supplying or offering to supply goods to which a false trade description is applied. This offence is really intended for careless dealers, who may nevertheless escape conviction if they have made a disclaimer which is as sufficiently ‘bold, precise and compelling as the trade description itself.

In both cases, the criminal courts are not concerned with whether the buyer has received good value for money, but they will be interested in how the trade description has been applied, or used. The courts will have regard to the place or date of ‘manufacture’ of the work, the maker of the work and any other evidence of provenance including previous ownership because to be a false description it has to be misleading to a material degree. It is a defence for the accused to satisfy the court that the false description was made as a result of a mistake or reliance on information supplied by others or that all reasonable precautions were taken and all due diligence was applied or that the accused did not know and could not with reasonable diligence have found out that the trade description was false.

The maximum penalty for such offences is two years imprisonment and/or an unlimited fine, after trial by judge and jury in the Crown Court.

Complaints about such matters are normally dealt with in the first instance by Trading Standards Officers of Local Authorities, who work closely with the Police who often also receive initial complaints. The police are interested because other more serious crimes may also have been committed.

Deception

Under the Theft Act 1968, it is a criminal offence dishonestly to obtain goods by deception. Goods can include money, and so a dishonest dealer who sells a fake work could be prosecuted and face a maximum. penalty of ten years imprisonment if convicted by a judge and jury in the Crown Court. This offence is more serious than the false trade description offence, because it requires proof that the dealer knew or turned a blind eye to the falsehood of authorship; equally, therefore, it is a more difficult offence for the prosecution to prove to the satisfaction of a jury.

Fraud

Conspiracy to defraud and fraud itself also involves the prosecution proving that a dealer knew that a fake was being sols or offered for sale; and so such cases have rarely, if ever, been brought in the UK. Tom Keating was prosecuted for this offence, but was acquitted when the prosecution withdrew on the grounds that they could not prove any intent by the accused to defraud.

False Attribution of Authorship

Apart from criminal proceedings taken by law enforcement agencies, it is also possible for individuals to take their own proceedings to the civil courts, if they have a connection or involvement with the falsehood. The Utrillo case mentioned at the outset offers a good example. Although Utrillo died some years ago, his heirs and estate challenged the public sale of his purported work. The reason was that, under the Copyright Designs and Patents Act 1988, artists are given the legal right to object to any false attribution of their authorship. In other words, if the work was not made by Utrillo it is false to attribute his name as author. This legal right lasts for the lifetime of the artist and for 20 years after death, whereupon the right is inherited by the artist’s heirs and estate. In this case the heirs and estate may have been legally entitled to obtain an injunction from a court ordering the dealer or auction house not to expose a work to the public in breach of Utrillo’s ‘moral’ (as it is legally known) right to have his name, honour and reputation protected.

Envoi

In the USA, the law generally requires proof that dealers in fakes intended to mislead or defraud the public. In the UK, however, as has been discussed, our legal provisions make it much easier to act against such falsehoods. Perhaps that is why reports of dealers in fakes are more prevalent in the USA than in the UK.

© Henry Lydiate 1997

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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.