Art Law Focus on : Art Forgery

Christie's New York. Courtesy: Christie's.

Christie’s New York. Courtesy: Christie’s.

Art forgery has existed for centuries, however, in recent years it seems more prevalent in the art world and its presence is unsettling. In such a litigious society as that of the USA, it is crucial that experts, dealers, auctioneers, curators and gallery owners all play by the rules when purchasing a new work of art. It is integralthat a work has proper provenance documentation, that there has been an application of connoisseurship to the work’s visual and physical aspects and in some cases, scientifically tested to determine the works physical properties. In other words, the piece should be authentic and be submitted to the authentication process in order for it to be offered for sale. Nonetheless, art forgery persists and despite the art market’s best efforts, fakes are being sold for millions of dollars around the world. In 2013, Christies and Sotheby’s earned over an estimated $3 billion in auction sales combined.[1] Even if the proportion of forged or misattributed works are small, the number of cases could be large.

 

While some high-profile cases of forgeryhave gone to trial and a culprit has been determined, it is important to recognize that there is never one person responsible for a forged work on the market. There is a long assembly line that brings the faux work from the forger’s hands to an auction house or gallery. In addition, the number of cases that have come to light makes one question the ethics by which the industry operates. In many forgery cases, the ones accused of fraud or negligence by selling the works under false labelsare quick to protest their innocence but, nota bene, these are the professionals in charge of our artistic heritage. These are the persons who have, wittingly or unwittingly passed on false goods when their professional standing depends on the soundness of their judgements and the reliability of their claims.

 

Art Forgery: the Issues

While the trade’sethics may seem questionable it is important to point out that detecting a forged work can bevery difficult. Pinpointing a culprit is very difficult in forgery cases; it all depends what the facts are, what the art is, how many works are involved and how expensive they are.[2] Today, fakes can pass off asgenuine and even get a stamp of approval by art experts. In addition, there is also reluctance from art experts to speak out if they suspect a fake. In fact, institutions such as the Andy Warhol Foundation and Lichtenstein Foundation have stopped authenticating artwork and pointing out suspected fakes for fear of lawsuits from the owners of works they reject.[3] Because art has become such a lucrative businessand the prices of pieces are exponentially rising there is much more at stake for experts to give their opinions on pieces. At the end of the day, the work has to sell and some who harbour doubts or suspicionschoose to keep mum in order to protect their jobs. On the other hand, turning a blind eye to a fake is irresponsible and detrimental to the art market. If confidence in the art market is to be maintained, all works of art must be thoroughly examined and rigorously appraised before being authenticated. Dealers and auctioneers serve to a considerable degree as stewards of our artistic heritage. If they do not live up to their professionally claimed competence and probity the consequences for confidence in the wider art market could prove dire.

Sotheby's Helena Newman, Philip Hook, Melanie Clore. Courtesy: Sotheby's.

Sotheby’s Helena Newman, Philip Hook, Melanie Clore. Courtesy: Sotheby’s.

As things stand, it is very difficult to regulate the art trade and there is little legal power over the market. In the United States, there is no legislation that deters forged art works from entering the market. There are other modes that create standards for professionals such as the Art Dealers Association of America (ADAA) and the Association of Museum Directors (AAMD). Both bodies demand professionals practice due diligence in verifying the accuracy of information supplied to a buyer.They are not required to guarantee the accuracy of certain information such as the date of a work, its provenance, or exhibition history. Thus, it would seem evident that there is an overall lack of liability and accountability in the workings of gallery owners.

 

Even when fakes have been exposed it is difficult to prevent themfrom re-entering the market. In Europe, where there are stricter rights for the arts, droit morale, fakes can be destroyed as directed by the artists or relative of a deceased artist. This in turn combats fakes from being re-circulated back onto the market and the possibility of it ending up in a gallery that believes it genuine. Nothing of this sort exists in the United States. Some have suggested that when a fake is determined the piece should be stamped in order to deter it from being sold as genuine years later. This has yet to be implemented or practiced.

 

So what does this mean?

Marion True inside Getty warehouse, 1988. Courtesy: The Art Newspaper.

Marion True inside Getty warehouse, 1988. Courtesy: The Art Newspaper.

All things considered, art is a business. The art market is a principal medium through which the artist’s work is distributed and bought by art consumers. Furthermore, art works are treated as articles of commerce or commodities. And it is perhaps due to this business-minded perspective that the codes of ethics and standards held to museum professionals are not met when they are presented with a work of art with questionable provenance. However, recent court cases have taught dealers, curators, auction houses, museums and gallery owners to pay exceptional attention to what they are buying and from whom (i.e., the cases of Marion True at the Getty Museum and the demise of Knoedler & Company). The point made here is that, while art forgeries can be difficult to detect and regulate, it is still of utmost importance that galleries, museums and auction houses uphold a code of ethics. They need to properly authenticate the work they are buying and demand all documentation. After all, it is their responsibility and duty as guardians of our artistic heritage. While there are some initiatives and agreements that museums and galleries abide by, such as the AAMD and ICOM, there still seems to be a lack of accountability. It seems in many cases that the money and prestige involved in acquiring a work of art can cloud the judgement of those involved in dubious acquisition.

 

In sum, art forgers and dealers of questionable morality will always be present in the art world. But what can change is how private buyers as well as museums and galleries acquire works of art. There is great necessity to enforce higher standards if they do not want to be victims of scandal. And until this is done, cases of art forgery will persist.

 

 

By Angelea Selleck

[1] “A Record-Breaking Year at Auction: A Look Back at 2013,” MutualArt. 2 January 2014. http://www.huffingtonpost.com/mutualart/a-recordbreaking-year-at-_b_4530126.html (last accessed 13 May 2014).

[2] Cohen, Patricia, “Fake Art May Keep Popping Up for Sale,” New York Times. 5 November 2012. http://www.nytimes.com/2012/11/06/arts/design/murky-laws-give-fake-artworks-a-future-as-real-ones.html?_r=0 (last accessed 14 May 2014).

[3] Kinsella, Eileen, “A Matter of Opinion,” ARTnews. 28 February 2012.http://www.artnews.com/2012/02/28/a-matter-of-opinion/ (last accessed 14 May 2014).

Delaware Art Museum Deaccession Update: W.H. Hunt Painting to be Sold at Auction

William Holman Hunt, Isabella and the Pot of Basil, 1868. Former Collection of the Delaware Art Museum.

William Holman Hunt, Isabella and the Pot of Basil, 1868. Former Collection of the Delaware Art Museum.

The latest update in the story of the Delaware Art Museum’s deaccessions is a quite unfortunate one. It was announced last week that an item from their prominent collection of Pre-Raphaelite paintings would be one of the four sold at auction. William Holman Hunt’s Isabella and the Pot of Basil (1868) is to be sent off to Christie’s in London for their June 17th auction[1], whilst the Board sits back and waits for the proceeds to roll in.

 

London’s The Daily Telegraph announced just a few days ago that this item from the Delaware collection was expected at Christie’s. The record to date is $1.8 million for a Hunt painting, set in 1994 by the Manchester Art Gallery.[2] The painting now in question features Hunt’s wife Fanny as the model in a scene from a poem by English Romantic poet John Keats. Here, Hunt captures the moment of the lovelorn Isabella covering herself over a potted basil plant, in which she has buried the ashes of her lover Lorenzo. Hunt had begun the work while the couple were in Italy, but completed it after her death. It thus stands as a memorial portrait of the artist’s wife, certainly not insignificant to the study of his oeuvre.

 

The Delaware News Journal has reported on strong criticism from Mark Samuels Lesner, a senior research fellow in late nineteenth-century art history and literature at the University of Delaware, Mark Samuels Lesner. He has used the words “sacrilege” and “extraordinarily significant” to describe the painting and its upcoming sale. CEO Mike Miller, however, reportedly claimed it is “no more important than any others,” and was thus chosen for sale “because of its limited impact on the overall collection.”[3]

 

Contradicting Miller’s assertion is the emphasis placed on another Pre-Raphaelite painting coming up at auction May 22 at Sotheby’s in London, Dante Gabriele Rosetti’s Pandora (1871). It has been promoted as the highlight of the sale, with a feature video and article on Sotheby’s website and an expected hammer price of £5-7 million ($8.4-11.7 million).[4]    Also of note is the major exhibition at the Metropolitan Museum of Art opening this month, “The Pre-Raphaelite Legacy” (May 20-Oct. 26, 2014). This renewed attention to Hunt, Rosetti, and others from the group is sure to have a certain amount of impact on raising the sale price. Quite advantageous for Miller and the rest of the Board, no?

 

Another argument for the sale of contemporary works from Delaware’s collection has also been made by the above-mentioned Lesner. Skewed as his opinion may be towards nineteenth-century works, he does have a point. Works from late twentieth-century artists like Richard Cleaver and Chul Hyun Ahn are not the pieces that formed the foundation of the Museum’s collection and have less connection with the institution’s history. He has made sure to point out that Pre-Raphaelite works like Hunt’s, as well as those by the Brandywine River School of American illustrators, stand at its “core, the reason for the institution’s very existence.”[5] If the Delaware Art Museum is to promote itself proudly for its founding collection, as it has for the past century, should it not respect the integrity of that collection?

Independent arts journalist Judith Dobrzynski has remarked upon the difficulty of museums selling contemporary works that carry less weight in the realm of arts scholarship:

Most museum directors I’ve discussed this with won’t go there. Some would like to sell contemporary art works they feel will not stand the test of time. But there are two problems: they don’t want to offend living artists — not only the ones whose works would be sold, but also others who might take offense at the practice. Second, they’re afraid that the works aren’t worth much — and that their sale would be a signal of an artist’s insignificance, depressing prices even more.”[6]

ArtWatch’s concern is that the steps now being taken by the Delaware Art Museum’s Board of Trustees confirms yet another added to the list of those who have compromised the integrity of their collection, and thereby their institutional history, in the face of financial crisis. As Stephen Salisbury at The Philadelphia Inquirer writes, Delaware has now fallen into the very same fate as others in the mid-Atlantic region. Former head of the Barnes Foundation, Derek Gillman, further prods the issue, as the Delaware Art Museum was founded as a collecting institution and the proceeds from these sales will not go, as the AAM regulates, back into the collections budget: “They’ve broken the rules…Their issue is, ‘OK, we accept that there will be costs to the museum.’ ” [7] There is a danger to this sudden disconnect between institutions and the works of art held on their walls for decades. Art is becoming increasingly commodified as a financial asset. What risk does this pose to the future of cultural stewardship?

*UPDATE* Monday June 9, 2014

From a member of ArtWatchUK comes an interesting remark on the expected valuation of the painting by Miller and the rest of the Delaware Art Museum Board:
“…it seems to have been overlooked that the full-size finished oil painting of this subject is in the Laing Art Gallery in Newcastle-upon-Tyne. The Delaware painting is only a later version, one third of the size of the original and begun by someone else; and only finished off by Holman Hunt. I believe the Delaware trustees are expecting somewhere in the region of five million pounds for the painting: but for the reasons given above, I can’t see it happening. But I do hope the painting will be described in the catalogue and offered for sale for what it really is.”

Alan Halliday, Ph.D. (Oxford)

 

 

Delaware Art Museum catalogue from 2004 exhibition "Waking Dreams."

Delaware Art Museum catalogue from 2004 exhibition “Waking Dreams.”

 

    By Ruth C. Osborne

 

 

 

 

 

 

 

 

 

 

[1] Delaware Art Museum. Press Release: Q&A. 6 May 2014. http://www.delart.org/wordpress/wp-content/uploads/2013/11/dam_qa_may2014.pdf (last accessed 13 May 2014).

[2] “Market News,” The Daily Telegraph. 13 May 2014.

[3] Margie Fishman, “Delaware Museum to Auction Iconic Painting,” The News Journal. Delaware Online. 6 May 2014. http://www.delawareonline.com/story/news/local/2014/05/06/delaware-art-museum-sell-pre-raphaelite-painting/8760189/ (last accessed 13 May 2014).

[4] “Sotheby’s to sell Dante Gabriel Rossetti’s Pandora; Last seen at auction 50 years ago,” ArtDaily. 11 March 2014.  http://artdaily.com/news/68674/Sotheby-s-to-sell-Dante-Gabriel-Rossetti-s-Pandora–Last-seen-at-auction-50-years-ago (last accessed 15 May 2014).

[5] Fishman.

[6] Judith H. Dobrzynski, “Keep The Pre-Raphaelite, Sell Contemporary Art, Expert Says,” Real Clear Arts: Judith H. Dobrzynski on Culture. 11 May 2014. http://www.artsjournal.com/realcleararts/2014/05/keep-the-pre-raphaelite-sell-contemporary-art-expert-says.html (last accessed 14 May 2014).

[7] Stephen Salisbury, “When Institutions Sell Artwork to Raise Funds,” The Philadelphia Inquirer. Philly.com. 12 May 2014. http://articles.philly.com/2014-05-12/news/49773584_1_eakins-portraits-archbishop-james-frederick-wood-art-market (last accessed 13 May 2014).