Authenticity certificates were explored in last month’s column (Art Monthly 355). This month we revisit the subject in the light of further authentication disputes and debates.

Art Fairs have vastly increased in number over the past ten years or so. TEFAF at Maastricht in March exhibits for sale museum-quality works (from antiquities through to contemporary) operates robust vetting procedures to authenticate works before they are allowed to be exhibited for sale; and so offers strong general provenance assurance to potential buyers throughout the fair. Dealers’ entry conditions in the ‘modern section’ require “references to catalogues raisonées or certificates/authentications from the accepted authorities on each artist”. Many dealers and collectors regard TEFAF’s approach to vetting as the market standard; but others, including other art fairs, view its vetting requirements as stringent.

Art Basel in June, and its offshoot at Miami Beach in December, is one of the biggest modern and contemporary art fairs. It has no vetting procedures, on the basis that “as most of our galleries are active in the primary market and are working closely with living artists or very active artist estates, the provenance of works on display is generally very well documented”. Art Basel has an ‘ombudsman’ present to consider disputes, and also Art Loss Register personnel offering advice to potential buyers.  It is not clear what expertise and/or authority the ombudsman may exercise, and whether the fair itself is an appropriate location for attempting dispute resolution.

FIAC at Paris in September also specialises in modern and contemporary works, with around 70% being primary sales by dealers representing artists they personally know. FIAC’s ‘college of experts’ operates only when a potential buyer questions a work’s provenance, and so is decidedly not a TEFAF-style provenance-vetting committee. It comprises five museum professionals and two dealers in modern works. For similar reasons Frieze at London in October, like FIAC and Art Basel, has no vetting committee; however, 2012’s Frieze will introduce a new sister fair called Frieze Masters that will exhibit for sale works older than modern/contemporary, and will have a vetting committee of experts to offer reassurance to collectors and especially ones that Frieze Masters hopes will ‘cross-over’ from buying older to newer works. Again, despite such facilities, for a collector there really is no substitute for sound authenticity documentation from the dealer.

Although art fair practices vary widely, and views are divided on the question of vetting/authentication amongst them, most collectors – and increasingly auction houses – require authenticity certificates for the sale of modern/contemporary works.

The Art Dealers Association of America (ADAA) does not require its members to secure authenticity documentation for sales, but leaves each dealer and buyer to agree such documents between themselves, if they wish.   Dealers (and collectors) who do not proactively secure authenticity documentation for sales of modern/contemporary – even on primary sales – are planting potential time-bombs that may blow up into legal disputes over authenticity years or decades or centuries later. Proactive securing and transmission of sound documentation could not only obviate or mitigate such problems, but could also act as a bulwark against the growing market for sales of fakes and forgeries of modern and contemporary works. For example, a US dealer is currently under FBI investigation for allegedly selling fakes or forgeries as authentic works by Franz Kline, Willem de Kooning, Robert Motherwell, Barnett Newman, Mark Rothko, Clifford Still, and Jackson Pollock; and there is a US lawsuit currently in train against the owners of the Knoedler gallery for selling a Pollock for $17m, which is alleged to be inauthentic.

In March 2012 an ADAA workshop explored authentication as a major current issue, which one speaker described as “the elephant in the room – it stomps through our offices”.  A related major issue was also debated: catalogues raisonées – especially in the light of a number of significant artist’s estates and foundations recently discontinuing their authentication practices and/or winding up any authentication boards they had established ( for example Warhol, Basquiat, Pollock). The main reason for such estates and foundations discontinuing authentication of their artist’s works appears to be realistic fear of lawsuits and associated significant costs of fighting them. Such suits may come from both sides of the selling equation: those aggrieved by refusal to authenticate works they believe to be genuine; and those aggrieved by certification as genuine works they believe not to be.

Authors of catalogues raisonées have similar fears. They may not be immune from inclusion in such lawsuits, especially is the US. There is growing reluctance among scholars, connoisseurs and experts in the US to undertake such research and writing commissions, and/or to express their professional opinions about authorship of works (publicly or privately). Such fears are realistic, because US law may hold to account the opinion of experts if it can be proved that economic damage has resulted from their opinions that a work is inauthentic (by, say, not including it in their catalogue raisonné of an artist in whose works they specialise). UK law currently offers such specialists better legal protection, on the basis that they should be entitled to publish their professional opinions.

The so-called silence of art specialists in the US is fuelling debate in the scholarly and art business sectors over authentication, including calls in some quarters for urgent changes to US law – principally questioning whether a law court is an appropriate forum to resolve questions of authorship. Jack Flam, President of the Dedalus Foundation in New York, is a strong advocate that “experts must be free to express their opinions about suspect works of art without fear”. In a feature article in The Art Newspaper (April 2012) Flam asserts that “silence encourages fakes” and proposes the establishment of a “properly constituted authority (similar to the Financial Industry Regulatory Authority) with limited immunity from lawsuits, to oversee authentication of works by modern US artists … to deter scholars and authors of catalogues raisonées from remaining silent.” Flam also urges that US legislation should be enacted “giving experts and scholars legal protection … since the art market is often either unable or unwilling to protect the legacy of artists who can no longer speak for themselves”.

He may have overlooked a further or alternative way forward. In 1990, US federal legislation gave artists the exclusive legal right to claim or deny authorship of their works (through the Visual Artists Rights Act); and did so in fulfilment of the US government’s international treaty obligations for the protection of artists’ works – including the artist’s moral right of ‘paternity’. However, when Congress did so, it limited the exercise of that right to the artist’s lifetime. Throughout most of the rest of the world the droit de paternité can also be enforced by an artist’s estate or foundation for at least 50 years after death (like copyright) and, in roughly half of the world, in perpetuity.  In the UK the exclusive right to claim authorship lasts for 70 years after death and the right to deny authorship – curiously – lasts for 20 years after death. Consequently legislators in the UK and US should consider the merits of enacting perpetual moral rights for artists, particularly taking account of the recent enhanced interest in authentication issues.
© Henry Lydiate 2012

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.