Judging Fakes and False Attributions in the Visual Arts. Ronald D. Spencer (Ed.). New York: Oxford University Press, 2004.
The Expert Versus the Object remains the best published resource to date addressing the complex issues of fine art attribution and authentication. Written specifically for a broad group of interested parties: artists and their heirs, dealers, collectors, scholars, museum curators, auction house experts, lawyers and judges, part one of the book is comprised of 13 essays by veteran art world experts, who detail their various perspectives on connoisseurship, the authentication process, and the catalogue raisonne. Art law attorney, Ronald D. Spencer, edited the volume and contributed three of the five essays in the second part of the book, which address the legal ramifications and risks of proclaiming an artwork fake or genuine. Published in this age of unprecedented prices on the art market, with a concomitant rise in forgeries, scams, and litigation, the volume should be mandatory reading for its intended audience, and anyone contemplating entering the art market.
While the "problem" of fakes in the marketplace could be defined in artistic or philosophical terms, the central theme in this volume is money, the financial impact of fraudulent art on the market, on art owners, even on authenticators themselves. "For a $500 fee, why should the expert risk a multi-million dollar lawsuit" filed by one party or another unhappy with his determination? The stakes are high for art world, built as it is, as one art historian put it, upon a "growing lack of confidence in seemingly subjective expert opinion concerning art, and the parallel lack of consistent procedures for applying such expertise." While the general American public has always been rather suspicious of "fine" art to begin with, today even art-minded people are growing concerned over the state of authenticity. Our best museum experts are now admitting they purchased fakes, the Rembrandt Research Project removed the stamp of approval from hundreds of works once attributed to the Dutch master, and its one art-related case after another in our courts creating a "body of case law as confusing in its contradictions as it is cock-eyed in its connoisseurship," as Lee Rosenbaum phrased it in the Wall Street Journal.
Several contributors to The Expert believe that art world experts have not been particularly effective (or interested) in explaining their methods, making the attribution process seem highly subjective. This atmosphere of confusion, combined with experts' fears of legal liability, has created a "fertile ground in which fakes and false attributions flourish." Falsely attributed artworks, as opposed to outright "fakes" intended to deceive, make up the bulk of problem. Over the centuries, most artists did not always sign their works, creating an ocean of art today that still needs sorting out. When parties disagree about the scholarly opinion of experts, the last recourse is often the courtroom, where sitting judges become the de facto arbiters of authenticity. With a better understanding of art world industry knowledge, Spencer believes lawyers and judges would give better counsel and make better judicial decisions. For their part, art experts should endeavor to follow and explain a systematic and professional process of analysis. The ineffable qualities of art they consider must be translated verbally into cogent argument.
The real life experiences in the turgid waters of the art world discussed by all the contributors to The Expert make it both highly informative and an enjoyable read. Some of the various author's recommendations should prove useful and effective, for instance, well-drafted authentication agreements with hold-harmless clauses for art experts. Others, such as a single umbrella organization to administer all authentications, seem most unlikely. One particular anecdote seems to encapsulate the highly charged and dramatic character of all authentication disputes. Theodore E. Stebbins, Jr., the acknowledged expert on the American painter Martin Johnson Heade, remembers giving an affirmative authentication to an upcoming auction painting after viewing it in photographs. Later, on auction day, plagued with nagging doubts, Stebbins raced to the auction house to inspect the painting in person. With only 20 minutes before the lot was due to come to the block, he changed his opinion and the painting was removed from the sale. At that moment a valuable asset lost almost all its value, the auction house lost its expected commission, and an expert potentially invited a lawsuit for product disparagement or some other cause of action. In this case, as it happens, the owner took his knock-off and went home.
Not addressed at any length in The Expert is the problem of what to do with disavowed and fake artworks after they have received the thumbs down. In France the holder of the right of authentication, part of droit morale, actually has the option of destroying an artwork that he has deemed inauthentic. In the U.S., no such law exists, which allows known fakes to pop up on the market again and again over time through innocent happenstance or deliberate deceit. Shopping a fake around the art world until one unknowing auction house or another accepts it on consignment is a commonplace. Nor, do catalogues raisonne usually include a section for rejected works. Spencer links our cultural timidity to cope with paintings of false attribution as another symptom of the chilling effect of litigation against experts, who now usually only say that a particular work will or will not "be included in a catalogue raisonne" instead of using words like: genuine, authentic or fake. More chilling still are the death threats one author received while preparing a catalogue raisonne; the publisher cancelled the project.
As the issues are laid out, participants educated and possible solutions proposed, the attribution and authentication problem should improve. The Expert versus the Object goes a long way toward this goal, but certainly more work must be done. A volume II would be justified if only to examine any progress made since original publication in 2004, and to assimilate new case law and relevant legislation, such as the Pension Protection Act of 2006, which for the first time ordained a recognized standard for appraisers, The Uniform Standards for Professional Appraisal Practice (USPAP). Perhaps government regulations are in order for the authentication process. Recently an art collector filed suit in New York against the Jean-Michel Basquiat Authentication Committee. His allegation: that the Committee has refused to offer any opinion whatsoever on his painting, which they had accepted for official review three years ago.
Back to the Trusts & Estates page.
3500 Maple Avenue, 17th Floor
Dallas, Texas 75219-3941
Fax: (214) 409-1425