OP ED by Hanoch Sheps, J.D.*
With the New Year only days away, it is only natural to reflect on the year that is coming to an end. With that, a string of fake artworks exposed in reputable institutions as part of sales or extensive exhibitions brings pause.
As recently as December 23, 2013, a piece of Chinese calligraphy attributed to a poet who lived over a thousand years ago was flagged as a possible 19th century copy. [NYT] This discovery is just one of many in 2013, soon to be dubbed the “Year of the Fake,” which seems appropriate given that the Chinese year’s presiding animal zodiac was the snake. However, the exposure of the fake calligraphy that was consigned to Sotheby’s and sold for $8.2 million at a September auction in New York is not the first (not even the first this week), and assuredly not the last. A gallery in Turkey cited the discovery of fakes as a reason for the premature closing of an exhibit of 60 works by the Spanish surrealist painter, Joan Miró, that were initially expected to be displayed until January 19, 2014. And of course, little more than the name Knoedler is needed to rehash the story of the famous and now defunct gallery exposed for selling fakes, a hackneyed story nearly impossible to escape this year.
Are the fakes the result of rising art prices, is it a systemic problem of attribution or has the fear of exposure to expert liability silenced those who might otherwise have spoken up? Increasingly stories emerge of experts issuing false reports, such as the scandal surrounding the renowned expert on the works of Max Ernst found liable by a French tribunal in July for an “incorrect authentication,” resulting in €652,883 in damages. [See Center for Art Law’s, Art Historian Found Liable for Incorrect Authentication]. In light of the increasing fears of litigation and closing of many authentication boards, will the art expert become extinct? [Read other Center for Art Law pieces on disbanding authentication boards].
To protect art experts and promote ongoing authentication, at least in New York State, the New York City Bar Association is drafting legislation to address the concern that authenticators have in continuing to provide their opinion on works’ authorship. Art Lawyer Judith Bresler, also General Counsel for the Appraisers Association of America, made a presentation of the draft bill at the annual meeting of the Association in November. Essentially, the bill would set a higher threshold and burden of proof for presenting authentication-based claims, amongst other features. Whether the legislation is likely to reinvigorate the academics, appraisers and other experts to opine remains unclear.
Setting aside liabilities momentarily, why do fakes draw the ire of the art market and society at large? This question can be addressed by examining what constitutes art. As a parallel to the now-closed Miró exhibition mentioned earlier, what are the lessons learned from the recent exhibition of over 123 replicas of works by Frida Kahlo? [Huffington Post, Bizarre Exhibition Presents All Of Frida Kahlo’s Paintings… Copied By Anonymous Chinese Artists]. It seems antithetical, or at best confusing, to praise works consciously made as replicas yet criticize the deceitful efforts of those who produce works of equal skill. How does one distinguish “fake” from “imitation,” is bad faith a prerequisite? One need only consider a point made in an interview on December 19 with the artist behind the Knoedler fakes, Pei-Shen Qian who posited, “I made a knife to cut fruit, but if others use it to kill, blaming me is unfair.” [Bloomberg]. Taking that argument one-step further, Qian claims he had no knowledge that his works were sold as fakes, therefore the difficulty in reconciling “fakes” with “imitations” persists.
So, what is art? Assume we are conducting the Pepsi Challenge but with paintings. On one side is an authentic Van Gogh (suspending your inclination to believe it is fake given the subject of the article), the other a near perfect 21st century knockoff. To the naked eye, they are identical. Each inspires the viewer, has great aesthetic appeal, and make you wonder how an artist like Van Gogh barely sold an artwork in his life yet today his works garner millions of dollars. Are the prices for art realized in a sale the sole indicator of value? What then should be said about exorbitant prices paid for works later exposed as fakes? Do they lose their aesthetic appeal, their ability to inspire simply because we cannot attribute them to a master?
In the New Year we should resolve to reflect on just a few more thoughts. An artwork is a creature of evolution, what once seemed vulgar now may be enlightened, and perhaps what once was decried as fake might become merely an imitation. After all, a wise man once said, “imitations are the sincerest form of flattery.” But if flattery is like talk, and talk is cheap, it is no wonder that exposed fakes are priced differently from the real thing.
*About the Author
Hanoch Sheps, J.D. is a recent graduate of New York Law School. He may be reached at Hanoch.firstname.lastname@example.org or 201-696-6881.
Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitute for seeking representation.