On 3 September, the United Arab Emirates’ Department of Culture and Tourism announced the ‘postponement of the unveiling of Leonardo da Vinci’s Salvator Mundi’, and promised that ‘more details will be announced soon’. No details have yet been given explaining this indefinite deferral of the much-heralded and eagerly awaited first showing at the new Louvre Abu Dhabi of the world’s most expensive painting. This void has been filled by scholarly and media speculation about the work’s ownership and authenticity.

The intensity of worldwide interest was sparked by the auction sale of the work at Christie’s New York in November 2017 to a telephone bidder at $450m. The then publicly unknown buyer was later reported to represent the Louvre Abu Dhabi, which announced in December 2017 its intention to unveil the prestigious new acquisition on 18 September 2018. Celebrity spotlight on the work was fuelled by reference to Christie’s pre-sale publicity in terms that the work’s inclusion in 2011 by London’s National Gallery in its exhibition ‘Leonardo da Vinci: Painter at the Court of Milan’ had ‘sealed its acceptance as a fully autograph work by Leonardo da Vinci’.

Diverse academics and other specialists have since published material questioning whether Leonardo’s hand executed all or only part of the work. Reasoning includes, for example: there is credible evidence that 20 or so paintings of the same subject and composition were executed by a range of Leonardo’s followers and pupils, and that the Louvre Abu Dhabi version is mainly or wholly attributable to one of Leonardo’s pupils or studio assistants such as Bernardino Luini, Giovanni Antonio Boltraffio or Marco d’Oggiono.

The art market bases financial value on many and various factors at the point of sale of a work, including provenance of ownership and authenticity. Scarcity or rarity of a work is a key criterion influencing the amount a buyer is willing to pay. In the case of Christie’s sale of Salvator Mundi, c1500, the buyer’s willingness to make a record-breaking payment of $450m was undoubtedly influenced by the work’s rarity: of the 15 or so existing paintings attributed to Leonardo, all but this one was then owned by museum collections and unlikely ever to be sold; this was the last one owned privately, and offered a unique market opportunity (that Christie’s included in its anticipated high-selling Post-War and Contemporary Art Evening Sale).

The circumstances of this Salvator Mundi saga are instructive, not only in relation to art market issues surrounding centuries-old cultural objects, but also to the market for contemporary art where scarcity or rarity criteria influence prices that buyers are willing to pay. But unlike deceased artists whose works are finite in number and beyond their personal control after they die, living artists have the power and means to exercise absolute control over their output and its potential market.

Artificial scarcity has been developed and used as a powerful marketing tool in modern and contemporary times, especially by the so-called cultural industries producing, for example: director’s cuts, special formats and extra features of films; bonus tracks, remixes, deluxe and special editions of recorded music; collectors’ editions and formats of literary works; one-night/week/season-only live shows and performances, and/or pay-for-view access to A/V communications of them. The rationale of such businesses is to limit the availability to consumers of potentially limitless cultural products and experiences in order to increase prices and build profits. In other words, artificial scarcity restricts availability in order to attract consumers to buy something scarce, rare or unique.

With a few notable exceptions, living artists do not profess to operate as cultural industries using artificial scarcity strategies to limit the nature and amount of work they create in order to make sales and/or maximise profits. Or do they? The links between creative motivations and decisions to make work, and fixing the primary sales price of work, are undoubtedly interrelated and interdependent. For example: the costs of an artist’s time, materials, equipment, working space and specialist assistance may drive the artist’s first selling price of a completed work into a range that interested buyers are unwilling to pay at the time. A secondary re-sale market may develop over time that might achieve higher sales prices, but that would be beyond the artist’s direct control.

From earliest times to present, artists have developed ways of controlling the extent of their output, often out of necessity, partly as a creative decision, and sometimes with a weather-eye on their potential sales market. Techniques include signing completed work as authentication; creating a unique work without making further variations, derivations or reproductions; destroying original plates or casts/moulds of printed/2D works or sculpture/3D works; and producing limited or special editions, numbered and signed.

In recent times art market professionals (such as auction businesses and dealers) selling contemporary art have responded to new requirements of their client-buyers to provide them with certificates of authenticity signed by the artist. In other words, the buyer takes delivery of the work plus a certificate authenticating the bought work. This in turn has led living artists to adopt the provision of such certificates not only when requested, but also whenever they have completed a work that is ready to be relocated as a gift, sale, installation or otherwise to leave the artist’s possession or control.

Artists signing such certificates frequently find themselves facing novel challenges as to whether and if so how to certify a work as being: unique; one of a series (un/completed, un/limited); one of an unlimited edition (un/signed); one of a limited edition signed and numbered. Such challenges are especially acute when works are originated in exclusively digital formats that may carry still and/or moving images and/or sounds.

Collectors require authenticity certificates primarily to protect their acquisition for various future purposes including resale, estate and inheritance planning, and donation to public-facing institutions and collections. It is in this connection that legal and ethical responsibilities arise for artists who have authenticated the status of a work

Although there are no international laws or regulations enforcing universally accepted standards governing the status of works as being unique or otherwise, many countries have legal frameworks imposing requirements on art market professionals offering works for sale. Such provisions usually define or describe whether the work is a unique original, a multiple or reproduction, or from a series or limited edition; and also require work to be sold with a detailed description including dimensions, materials and other features to distinguish it from earlier versions.

Such frameworks are often enacted as ‘consumer protection’ legislation. The Uniform Commercial Code (UCC) established in the US in 1952 harmonises many and various laws enacted in each state regulating commercial transactions, and embraces provisions such as the California Print Law 1971 and Georgia Print Law 1986. Many continental European countries have enacted similar laws. At the end of the 19th century, France was one of the first countries to introduce laws regulating sales of editions of ‘original’ prints and sculpture by artists. Although artists are rarely the subject of such consumer protection, their professional ethical reputations in the art world are likely to be damaged if they create work that extends earlier work they have sold as unique or otherwise limited, thus failing to subscribe to conventions for the creation of artistic scarcity.

© Henry Lydiate 2018

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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.