Suing Art Experts

Last month’s consideration of art after death suggested that artists might adopt straightforward and sensible practices to authenticate and inventorise their works, to avoid difficulty and complication after death as well as during their lifetimes. This month we amplify such considerations in light of the fact that experts, including scholars and connoisseurs, are increasingly finding themselves exposed to legal claims that challenge their opinions. Understandably, this is creating a knock-on effect: there is a growing hesitancy to provide such expertise.

The art world relies upon the availability of such expertise to underpin its ability to establish sound provenance for works offered for sale. Additionally, the opinions of experts establish and disseminate the authenticity of works acquired by collectors and institutions. The establishment of authenticity is a central issue for the art world, likely to be substantially distorted by growing hesitancy on the part of experts to, for example, to go on the record with opinions about authorship. Auction houses and dealers have a duty to check authenticity as part of their function as reliable and credible art-market professionals. In relation to older works, this is usually accomplished through the checking of catalogues raisonnés; for contemporary works, other techniques may be used for the establishment of a chain of title of ownership back to the artist’s studio. Most of this due diligence work relies fundamentally upon the availability of on-the-record expert opinion.
French contemporary art expert Dominique Stal offers the following analysis of different aspects of the expert’s role in valuation and authentication of works of art:

  • Estimate: give a financial value according to the art market.
  • Authenticate: recognise or confirm the author of an art piece, according to certain stylistic, technical, scientific and historical elements.
  • Authentication role: most important for artist’s annotated catalogues where the expert works with the copyright owners and other specialists; also important for auction sales, where a certified attribution is necessary.
  • Double role: where not only the expert’s qualities are necessary, but also his experience, competence and knowledge; the eye must be trained by studying different paintings and styles to offer the best judgment on the author and on the value of the pieces; the expert must therefore be specialised in different domains.
  • Expert intervention for different partners: auctioneers, who are not specialised and organise different types of auction sales, work with specialised experts; they also intervene for customs or insurance companies, in order to assess the value of a piece before insuring it or after damage claims.

The nature of legal claims against experts may take various forms, and are usually made by owners seeking to defend the market value and reputation of their collected works. For example, aggrieved owners may allege that authors of catalogues raisonnés, or expert writers of authenticity reports, have damaged the reputation and market standing of their works through non-inclusion or pejorative comment. Alternatively, buyers who rely on a particular expert opinion may contend that they have suffered financial loss if other experts’ contrary views gain marketplace acceptance.
Expertise is also required to address the increasing instances of sales of fake and forged modern and contemporary works. Inauthentic works on paper by Banksy were offered for sale online recently, and led to the artist establishing his own online authentication service, Pest Control. Graffiti artist JonOne is currently suing a French dealer for selling around 20 paintings, falsely attributed to him. The buyer of Le Muse Inquietanti, 1951, sold by Sotheby’s London in 2013 as the work of Giorgio de Chirico, is now refusing to pay on the basis of evidence that the work is by the forger Renato Peretti. The De Chirico Foundation says that the work is authentic and is included in the catalogue raisonné, but that fakes may be in circulation.
Working within this increasingly litigious climate, experts are becoming wary of finding themselves pitted against other experts and/or exposed to legal challenge. A recent Courtauld Institute of Art conference, which addressed the authenticity of a set of drawings owners claimed were by Francis Bacon, was cancelled due to experts being concerned about expressing their opinions on record. A five-year dispute about the authenticity of casts made from allegedly authentic plaster moulds of work by Degas remains unresolved because of similar reticence by scholars. Authentication boards, established to address exactly such issues, have found themselves unable to function because of these constraints. Authentication board closures include those for Andy Warhol, Jackson Pollock and Roy Lichtenstein.

Recently there has been a spate of lawsuits in the US against art-world expert opinion givers, and US laws are probably least protective of such experts. In an attempt to improve protection, the New York City Bar Association has drafted new legislation to deal with what it describes as ‘frivolous lawsuits’ brought by aggrieved owners, auction houses and dealers. Claimants are required to be specific about the expert’s erroneous opinion and to prove their claim. Significantly, the draft bill would also reverse the law that currently requires experts (who successfully defend such cases) to pay their own legal fees. Critics contend that if enacted the bill would empower experts to exercise undue control over the marketplace. Conversely, the current legislation supports open season for fakes and forgeries, and the proposed change reflects the need to protect New York State’s art market dominance.
In the UK it has long been established, through decisions made by courts, that experts offering opinions are protected against legal claims. In this respect, judicial approaches in the UK arguably offer stronger protection than elsewhere. However, these incidences of good practice do not address the overall needs of the global art market, where experts are exposed to possible legal challenge worldwide.

Returning to last month’s discussion of practical issues for contemporary artists, and the related suggestions about authenticating and inventorising work, it can be seen that creation of robust evidence is a strong protection against future challenge. Artists are well-advised to find ways of indelibly marking their work, creating high-quality photographic documentation, authenticity certificates, written contracts of sale or gift or loan, and maintaining an efficient running inventory including location of works in stock and those that have left the studio. Such tracking can effectively be achieved using commercially available electronic databases.
Another argument in favour of this approach is the inconsistent application of statutory moral rights of artists and their heirs to claim or deny authorship of work. In the UK and related legal systems, these moral rights last for the artist’s life and decades after death. The exercise of these rights by artists and their estates, supported by robust documentation, is the strongest available protection against claims disputing authenticity.

An interesting analogy can be drawn with commercial branding activity. Few people would buy a computer without relying on the reassurance provided by a reputable brand name. The role of scholars and experts in the art world fulfills a similar function, offering a recognised and reputable source of knowledge and authentication. It is important that the interconnected parties comprising the art market – artist, gallery, dealer, auction house, collector and institution – are able to rely on an international climate where such expertise will remain freely available.

© Henry Lydiate 2014



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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.