In Other News: Allegory, Fakes, HEAR Act, Synergy and Street Art

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Follower of Pieter Bruegel the Elder, “The Blind Leading the Blind” (circa 1600). Auctioned by Sotheby’s at the Master Paintings & Sculpture Evening Sale (Jan. 25, 2017). Estimate: $100,000 – 150,000. Hammer w/ buyer’s premium: $137,500.

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Old Masters Faked The 2011 private sale involving a “modern forgery” was undone five years later, when Sotheby’s auction house recognized that it sold the work under a false attribution to Frans Hale. The handsome sum of about $10 million dollars paid for the “Portrait of a Man” was reported as reimbursed by the auction house to the buyer in 2016. In January 2017, Sotheby’s again made the news for denouncing authenticity of another painting and naming its consignor a defendant in a breach of contract complaint. The second painting, known as “St. Jerome” by an old master from Italy, has been tested by a lab Sotheby’s acquired in 2016 and reported as containing modern pigments. Funds at stake from the sale of “St. Jerome” – over $650,000.

The existence of fakes in the art market is no news. The steps taken by different players (private and public actors) to address claims and evidence of misattribution and fraud are newsworthy.

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Eyes on HEAR Act  In January 2017, Carter Ledyard & Milburn LLP issued an advisory regarding the new federal law, Public Law No. 114-308, known as the Holocaust Expropriated Art Recovery (HEAR) Act extending the statute of limitations for claims to Holocaust-expropriated art. See full text here.

From the advisory: “The HEAR Act operates by displacing individual American states’ statutes of limitations with the new six-year deadline. The HEAR Act does not create a federal right to recover artwork, and does not create a uniform federal statute of limitations for all Holocaust art claims. Claimants must still allege a right to recovery under existing state law, based on theft or conversion. Although Congress’s stated intention is for these disputes to be decided on the merits, because of an exception set forth in the law, the new law will not end quarrels about which state’s law applies. . . .”

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Beyond the Artmarket Room for meaningful artist/lawyer relationships are explored in an essay co-authored by Sonia K. Katyal and Joan Kee for Hyperallergic entitled “How Art and Law Can Work Together Beyond the Marketplace” (Jan. 12, 2017).

Excerpts from the essay: “… More recently, lawyers and artists alike have struggled over competing claims to freedom of artistic expression and those made in the name of defending intellectual property rights. … The questions raised regarding racial difference, inequality, and appropriation are difficult ones, and, over time, it has become increasingly urgent that we engage with both the languages of art and law to make sense of how to answer them.

Today, the need for these conversations — particularly as they address non-white, female, queer, and transgender artists — becomes particularly acute in the wake of Donald Trump’s election, who has demonstrated an explicit intent to perpetuate unequal treatment before, and despite, the law. How does the art world respond, and how can art lawyers support the need for a critical response?…”

 

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Tasseography The newly minted President of the United States is making the news and inspiring artists to apply themselves. In “A Tremendous Roundup Of Street Art Ridiculing Donald Trump” (Jan. 27, 2017) and “‘It’s going to make art great again’: the street artists taking on Trump” (Jan. 25, 2017), The Huffington Post, The Guardian and others have picked up on the fact that “street artists have a lot to say about President Donald Trump….”

Let’s Get Digital!

By David Honig, Esq.

In 1946 the University of Pennsylvania’s Moore School of Electrical Engineering unveiled the Electronic Numerical Integrator and Computer (ENIAC) introducing the world to what is often referred to as the first general purpose reprogrammable computer. Although ENIAC’s origins were military, the development of ENIAC was funded by the United States Army, its legacy is much more. Computer technology, evolved from a tool for the military, into, among other industries and applications, a tool for the arts and spawned a new genre: digital art. Some of the pioneers of digital art include Lillian Schwartz and Gopakumar R.

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Sedition Landing Page. 

In the twenty-first century, digital art is a fast growing medium even if it is not fully understood or integrated into the mainstream art world yet. Schools such as the University of Oregon, the University of Washington and Pratt Institute offer degrees in digital art. Additionally, the British Broadcasting Corporation (BBC) has funded The Space, a website that allows its users to explore digital art that has been commissioned or licensed by the website. According to BBC News, the BBC has already spent £3.6 million on The Space with another £8.1 million committed to the project. In addition to the BBC other major players in the art world have invested in digital art. Since 2002, the Whitney Museum of American Art has hosted an online gallery for digital art called Artport. According to the Artport website, it “provides access to original art works commissioned specifically for the artport by the Whitney…”  

As digital art becomes more accepted, purchased and commissioned by private collectors and institutions, like the BBC and the Whitney Museum, a new problem arises, namely dealing with issues of authenticity and reproducibility. The problem of authentication and unauthorized reproduction is often present when any form of copyrightable content is stored as a digital file. However, digital art presents a unique take on issues of authentication and unauthorized reproduction because unlike movies or music, the value of art is partially based on scarcity and the ability to prove authenticity.

When buying a piece of art the purchaser usually wants to know the piece is indeed original, if it is not unique than how many other copies are there, and that the work will not be endlessly (re)produced. Unlike, a physical work of art, digital art can be reproduced easily with the push of a button. This possibility for reproduction, as both the music and film industries know, affects the market for the genuine article.

Unlike in film and music, the producer and consumer in digital art are much more likely to be aligned in their desire to prevent the ability to reproduce the work. In the sphere of entertainment, the producer does not want film or music to be easily reproduced because unauthorized copies usually negatively impact the market for the good, but the consumer usually wants the ability to make copies so as to enjoy the song or movie on multiple devices without having to purchase a new copy. It is unclear whether when it comes to digital art, the consumer would wish to have multiples for different devices.

The ability to easily digitally reproduce a work also affects value of digital art because of issues of authenticity. Just like any other piece of art, the value of digital art is supported by the ability to prove that a work was indeed produced by the artist. When a work is easily reproduced the fact that it looks, and is in fact, exactly the same as the artist’s work is not enough to prove authenticity. These issues dealing with unauthorized reproduction and authentication have led to the use of innovative technologies, ranging from the simple and cumbersome to the complex and unseen, to find a possible solution.

The easiest solution to the problem of unauthorized copies and knowing whether a work is original would be to use physical or digital certificates of authenticity. Just like physical art, digital art can be accompanied by a certificate of authenticity, either a printed piece of paper or a digitization of the same. In fact, a certificate of authenticity accompanies every piece of digital art sold by online art gallery Sedition. While many people would be able to access the work of art, only the holder of the certificate would actually “own” said original or authorized work. This creates an issue of whether the work or the certificate is more valuable.

Another solution, adding a watermark to the image, is also the most cumbersome and somewhat ineffective. A watermark could tell anyone viewing the artwork the identify of the author or where the work was originally posted. But, watermarks won’t prevent copying nor will they show who currently “owns” the “real” version of the work. There are two different types of watermarks that could be applied to digital art, what will be called traditional watermarks and digital watermarks.

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See example of a traditional watermark. Photo: Painter Eric Isenburger, ca. 1929. Source: http://docsanddocs.com/

A traditional watermark works by embedding an image or word onto the work to signify where the work was originally posted or the author of said work. A traditional watermark could possibly affect the viewer’s perception of the work because anyone viewing the work would be disrupted by the mark. Another problem is that traditional watermarks can be digitally removed with software such as Adobe Photoshop. Ultimately, a traditional watermark is vastly limited in its effectiveness.

A better solution would be to use digital watermarks. Digital watermarks are similar to traditional watermarks in the sense that both are used to store information – in this case that the article is genuine. The key difference is that with a digital watermark the information is embedded within the file instead of on the surface of the piece of art for all to see. A digital watermark still has some of the same flaws of a traditional watermark, it does not prevent the copying of data nor is it able to signify that it is the “original” or “authentic” version of the work. In fact, every time the work is copied so too is the watermark since it is embedded in the file.

There will never be a way to completely prevent the piracy of digital files, it is the nature of the Internet and digital media that if someone wants to copy a digital file they will find a way. However, there are ways to mitigate the damage to the value of authentic works that results from unauthorized copying, this issue is about protection for the purchaser which is different from the issue of copyright which deals with an author’s right to reproduce. Maybe because of all the shortcomings of watermarks many in the art world have turned to cryptocurrencies for the answer.

Cryptocurrencies, such as bitcoin, record the chain of ownership utilizing a database known as blockchain. Blockchain is a type of database that prevents tampering or revising. This means that once the work’s provenance is embedded into the file it can’t be modified. That’s not to say that future owners will not be able to have their names added to the blockchain it only means that any name placed on the blockchain cannot be removed.

Companies such as Monegraph, Ascribe and Verisart all use blockchain technology to catalogue digital works of art and their owners. Each company has their own way of using blockchain as well as other methods such as licenses to further enhance the rights of the artist and the purchaser. Since blockchain is a decentralized database the recording system will most likely be universal regardless of which provider the work was originally purchased through. Meaning, if someone buys a piece of art from Monegraph future sales probably do not have to be recorded through Monegraph.

It is unlikely that the internet’s penchant for copying digital files will ever stop. More innovations to prevent illegal copying will always be discovered and some coder somewhere will always find away around those methods. But people who buy art frequently value more than pure entertainment delivered by digital art, instead they buy art as investment pieces. So, although there might be millions of copies of a particular piece of art floating around for free on the internet only one, or a designated few, would truly be the work and only that version will be certified and retain any value. Most investors will most likely be hesitant to be an early adopter but that is usually the case with any new technology or medium.

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Profile for Ryan Whittier Hale on Sedition.

That being said, a secondary market currently exists within Sedition. Through Trade, collectors can sell digital art from their collections. Sellers set the price they wish to receive and buyers bid on the work. The seller has the option to accept any bid even if it is below the set price. In addition to having a secondary market Sedition sells works by Gopaumar R. and Damien Hirst. Clearly there is enough of an interest in creating digital art that major players in the art world are not only experimenting with creating digital art but also with the new digital art dealers. What remains to be seen is whether a market for this type of art can be sustained.

In the concluding chapter of her book, The Computer Artist’s Handbook: Concepts, Techniques and Applications, Lillian Schwartz states that “[t]he computer also represents a process. But it is a polymorph of mathematical and logical design. What it can do is subject to what we believe it can do for us.” Just as the art itself must come from human creativity, methods for protecting the same must come from human ingenuity. As time goes on and digital art becomes more accepted new and better methods of creation, distribution and protection will be developed as well.

About the Author: David Honig is a post graduate fellows at the Center for Art Law. He is a member of the Brooklyn Law School class of 2015. While attending law school he focused his studies on intellectual property and was a member of the Brooklyn Law Incubator & Policy (BLIP) Clinic. He is admitted to New York and New Jersey state bars.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advise. Instead, readers should seek an attorney.

WYWH: Recap of “Art, Law and Crisis of Connoisseurship Conference”

By Marie H. Kramer*

Screen Shot 2015-12-10 at 5.28.08 PM.pngOn Tuesday, December 1, 2015, the conference titled, “Art, Law and Crises of Connoisseurship” took place at The Society of Antiquaries of London, Burlington House, London, UK. It was an international conference organized by ArtWatch UK, the Center for Art Law and the London School of Economics Cultural Heritage Law (UK). The program featured nineteen speakers, including artists, art historians, scientists and lawyers from Western and Central Europe as well as the United States, discussing how the ‘eye’ of the connoisseur interacts with art history and law. The conference was divided into three parts.

Part I: The Making of Art and the Power of Its Testimonies

Michael Daley, Director of ArtWatch UK and one of the program organizers, opened the conference with his essay “Like/Unlike; Interests/Disinterest,” which focused on the 1991 trial of Professor James Beck in Italy. Columbia U. Art History Professor Beck was accused of aggravated criminal slander (which carried a possible three year imprisonment) for his critical comments on a restoration of the sculpture, an effigy of Ilaria del Carretto in Lucca Cathedral. Beck had opined that the restorer ruined the sculpture by stripping its ancient patina to remove scratches and covering it with oil to create a new, shiny surface. Beck was ultimately acquitted of the charges setting precedent for the protection of future criticism of art restoration. After the trial, Beck and Daley joined forces to set up ArtWatch International, an organization dedicated to advocate for the protection of art against harmful restoration. The full story of the trials can be found in the book, Art Restoration: The Culture, the Business and the Scandal, co-written by Beck and Daley, which also includes criticism of the cleaning of Michelangelo’s Sistine Chapel frescoes. Daley showed examples of the restoration effects on the Sistine Chapel, where delicate layers of shadow that the master painted himself, were removed under the guise of ‘cleaning’ off dirt deposits.

Next, Euphrosyne Doxiadis, a Greek painter and scholar, spoke about her three decades of research and criticism of the Rubens attribution of Samson and Delilah in the National Gallery in London. Her research of the provenance and the work revealed engravings and other painted ‘eye witnesses’ (copies made of the original Samson and Delilah painting by Rubens) that she contends do not match the version currently hanging in the National Gallery. Additionally, using her artist’s eye and the availability of high-resolution digital photographs, she observed visible differences in brush strokes from known Rubens paintings, as well as the use of different pigments. This is especially important because Rubens only used different red pigments to shade and highlight his red areas, rather than the white pigment used to lighten the red dress of Delilah in the National Gallery version. Now, still, Doxiadis continues to struggle to get her opinions heard and recognized by the National Gallery.

Jacques Franck, a French art historian and painter trained in Old Master techniques, explained “[w]hy the Mona Lisa would not survive modern day conservation treatment.”  Franck, who is a recognized authority on Leonardo da Vinci, has conducted an extensive investigation of the techniques used by Leonardo, especially his ‘sfumato’ (‘smoky finish’) method, in which colors and shades melt into one. Franck, who believes he has discovered how Leonardo accomplished this technique based on his years of personal experimentation, explained to the conference attendees that Leonardo applied ultra-thin layers of glaze and pigment to make his transitions, each layer only a few micrometers thick. Franck suggests that, clearly, modern conservation techniques that ‘clean’ off any of these thin layers of glaze would destroy the Mona Lisa and other Leonardo masterpieces.

With a continued focus on Leonardo Da Vinci, Ann Pizzorusso discussed the master’s work from the perspective of a geologist. Pizzorusso is a US professional geologist and a Renaissance scholar. She explained how geology can be used as a tool for determining attribution. Specifically, she noted that Leonardo was renown, not only as an artist, but also as a scientist. Leonardo carefully studied geology and botany, making extensive drawings of the world around him. Comparing the Virgin of the Rocks compositions hanging in the Louvre and in the National Gallery of London, Pizzorusso noted some odd differences. She could plainly identify the various rock formations in the Louvre version, but not so with the National Gallery version. Additionally, she noted that the plants in the National Gallery version, according to a botanist she consulted, were imaginary – not the precise petals and foliage of actual plants – a mistake she doubts Leonardo would ever make. Thus, she questions the attribution of the painting in the National Gallery.

Robin Clark, Sir William Ramsay Professor Emeritus at University College London, an inorganic chemist and spectroscopist, gave a fascinating discussion of the use of Raman microscopy (RM) to identify pigments in the palette of artwork. He explained how every pigment has a distinct pattern of scattered photons that can be seen after focusing a laser beam through a microscope—collectively referred to as its Raman spectrum. This unique pigment identifier is invaluable in determining the composition of the pigments and can give tremendous insight for authenticating and dating artwork, as well as conservation and restoration.

Unfortunately Segolene Bergeon-Langle, France’s Honorary General Curator of Heritage and a member of the Louvre’s preservation and conservation committee, was unable to attend the conference, but she provided her remarks, and Daley presented her main points about the relationship between science and art. She contends that scientific analysis can cause restorers to overlook the original artists’ formulations. For example, during the restoration of Leonardo da Vinci’s The Virgin and Child with Saint Anne, in the Louvre, the Louvre’s international advisory committee on the restoration concluded that there was blanching (whitening) of a layer of varnish due to moisture or ageing that needed to be removed. Bergeon-Langle strongly disagreed, recognizing that the whitened area was not a later varnish to be removed, but was original to the painting – and perhaps a device used by the painter. She resigned from the restoration advisory committee in protest to the removal of the varnish and ‘over-cleaning,’ which left a visibly brighter composition. As an advocate for responsible stewardship, she contends that different fields of science and connoisseurship need to work together, so that the proper scientific questions are asked, and to permit art connoisseurs to work with scientists to collaboratively analyze and understand the true meaning of the results.

Michel Favre-Felix, a French painter and President of ARIPA (Association for the Respect of the Integrity of Artistic Heritage), discussed how some art restorers have dramatically changed certain works of art because they failed to look at the testimony of historical copies. One of the restorations he discussed was Veronese’s The Pilgrims of Emmaüs. The original, painted in 1560, had been changed more than once over the past 450 years; but there had been engravings made over the course of history, as well. Each restoration made changes that compounded prior mistakes. For example, a restoration in the 1950s deemed that the neckline on the cloak worn by the Pilgrim Luke was an overpaint from the 19th century, and removed it, notwithstanding an 18th century engraving showing that very neckline. These errors and others were compounded again in the Louvre’s more recent 2003-2004 restoration. The piece today makes a good example for the study of art restoration and perhaps, what not to do.

Kasia Pisarek, an independent art historian and research specialist on attribution in London, discussed modern attribution, specifically, the case of La Bella Principessa, a chalk and ink drawing on vellum depicting the profile of a girl appearing to be 15th century. It was recently attributed as a lost drawing by Leonardo da Vinci, but Pisarek proposed several arguments against such a finding. For example, she questioned the story that the vellum came from the Sforziad manuscript in Warsaw, noting that, among other problems, the hole punches that would have held the vellum sheet in place do not match the supposed original source of the drawing, the Sforza family album, which has five holes. Additionally, she discussed how the style and technique of the drawing are very different from Leonardo’s, but that several of his works and a sculptured bust by Cristoforo Romano might have been the sources for the drawing. The controversy will continue—indeed, convicted art forger Shaun Greenhalgh has recently claimed that he forged this “Leonardo” modeled after a girl he knew in 1975.

The first part of the conference was concluded with a brief discussion and a Q&A moderated by one of the conference organizers, Irina Tarsis, of Center for Art Law. A heated discussion ensued surrounding La Bella Principessa’s attribution that could only be categorized as a battle of experts.

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Part II: Righting the Record – Diverse Experts as Authority

Tatiana Flessas, professor of cultural heritage law at the London School of Economics and one of the conference organizers, introduced the early afternoon speakers, starting with Brian Allen, Chairman of the London Old Master dealers Hazlitt Ltd. Allen discussed what he termed ‘the new art history’—a change in the teaching of connoisseurship, especially in the UK, since the 1980s. He has noticed that universities are focusing on the social history of art, and not training art history students to differentiate artists by their stylistic traits. The effect is that fewer art historians will be able or willing to make attributions, and forgeries can be missed.

Peter Cannon-Brookes, former museum curator with strong interests in conservation and security, presented his essay, “Reconciling Connoisseurship with Different Means of Production of Works of Art.”  He follows Brian Allen’s discussion of the change in connoisseurship and how well modern art historians and connoisseurs really understand art from long ago. He questioned whether the more modern analysis of art—post-war era art to the present—could apply to art created in the past, and the processes used throughout the ages.   

Continuing with the theme of the changing nature of connoisseurship, Charles Hope, former Director of the Warburg Institute, discussed how modern connoisseurs have been unable or unwilling to support their basis for attributions. Often, two types of connoisseurship are at odds with one another: that based on expertise acquired over a long time and that based on using historical evidence and reason. In more distressing terms, Hope highlighted the fact that decisions about attribution are not based on the actual evidence to support the attribution, but left to a decision by vote.

Martin Eidelberg, Professor Emeritus of art history at Rutgers University, next discussed how science alone will not solve authentication issues, that there needs to be a collaboration among different disciplines in addition to extensive time for study. While creating a catalogue raisonné of the paintings of Watteau, he discovered how the provenance and scientific analysis of the paintings were not always a reliable means to determine accurate authorship and could lead to various misattributions.

Robin Simon, Editor of The British Art Journal and Honorary Professor of English, UCL, explained his discovery of multiple fake paintings, which were hanging in the MCC (Marylebone Cricket Club). Simon discovered that a single artist, between 1918 and 1948, painted over fifty paintings depicting cricket matches that purportedly dated from the 16th-20th centuries. After outing the pictures, they were removed from the MCC and quietly given to dealers, although a few fakes still remain in the MCC. Interestingly, Simon learned that the fake paintings were later sold to a wealthy collector who believed them to be authentic. So, the fakes have worked in two swindles.

A guest lecturer at the LSE and Director of the Art Law Foundation, Anne Laure Bandle, discussed her PhD paper on the sale of sleepers at auction and the liability of the auction house in such dealings. She focused on the notable Thwaytes suit against Sotheby’s for negligent advice regarding the value of The Cardsharps—allegedly missing the current expert attribution to Caravaggio. The High Court ruled in favor of Sotheby’s, finding that it had met its due diligence by using highly qualified experts who reasonably concluded that the quality was not sufficient to indicate a Caravaggio, rather than just a ‘follower.’

The next speaker, Elizabeth Simpson, Professor at the Bard Graduate Center in New York, departed from the field of fine arts to discuss the use of connoisseurship in the study of ancient art. Specifically, she explained how the ‘eye’ of the connoisseur has been used to identify the artists of ancient Greek artifacts. For example, by studying the stylistic traits of ancient Greek vases, scholars have been able to determine that two separate artists created works on two sides of the same vases – the Lysippides Painter (black-figure technique) and the Andokides Painter (red-figure). Connoisseurship also reunited disconnected ivory pieces stored in the Metropolitan Museum of Art into the ancient chair or throne from which they came. The ivory pieces had been excavated without any record of the source or context of the figures. An investigation of the pieces and comparison to similar ivories with known provenance revealed how they fit together and their source (Anatolia). 

Part III: Wishful Thinking, Scientific Evidence and Legal Precedent

During the final portion of the program, participants discussed the implications of expert connoisseurs and science in the courtroom.

Irina Tarsis, an art historian, New York attorney, Founder and Director of Center for Art Law, and one of the program organizers, contextualized the litigation involving the renown Knoedler Gallery. Although of impeccable reputation, the Knoedler closed after more than 160 years in business in the face of at least ten lawsuits against the Gallery for selling forgeries. The Gallery sold over fifty paintings, many of which were thought to be by well-known abstract expressionists. They had been consigned by Glafira Rosales, who has now admitted to the forgeries. Thus, the question is, what was the duty of the Gallery to ensure appropriate authentication?  Interestingly, Tarsis reported that none of the museum purchasers have brought suit yet. Several of the private collectors who have brought suit have settled. Thus, the issue of a gallery’s due diligence regarding authentication and attribution in these matters has not been decided by the courts. The question also remains whether there is insurance coverage for all of the remaining claims and potential claims. The usual insurance policy may cover theft or damage to works of art, but not necessarily for loss due to misattribution. Further, the Knoedler may have a policy covering errors and omissions by its staff, but unlikely covering acts of fraud. The message is clear that collectors and dealers cannot rely on the representations of even a highly reputable gallery alone, without performing their own due diligence into authentication to protect themselves. Between December 1st and December 10th, one of the two Knoedler cases slated to go to trial in the January 2016 was settled.

Nicholas Eastaugh, Founder/Director of Art Analysis and Research Ltd., London, discussed the science of analyzing fine arts – the term he uses is ‘technical art history and materials science.’  He performs chemical analyses of the materials used in a painting and searches for anomalies in those paintings. For example, he analyzed Red Picture With Horses, supposedly a 1914 painting by Campendonk, but found titanium white pigment, which was not available at that time, evidencing a forgery by Wolfgang Beltracchi. He also uses high resolution digital imaging, X-rays and ultraviolet fluorescence to see below the painted surface. Earlier sketches and drawings (pentimenti) can show the true artist’s creative process in altering the composition along the way, rather than someone who is simply making a copy.

Megan E. Noh, Associate General Counsel of Bonhams, discussed recent legal trends in authentication disputes. One important change is that artists’ foundations and authentication boards have disbanded or stopped issuing certifications of authenticity. For example, there are no longer boards to authentic works by Basquiat, Warhol or Lichtenstein. This trend is coupled with increased litigation concerning authenticity. Modern litigants rely more on scientific evidence, but it often becomes a battle of the experts. Authenticators, however, are understandably cautious in giving opinions for fear of liability. Noh suggested some possible solutions, such as indemnification agreements or ‘no sue’ agreements to protect authenticators. In New York, there is an attempt to amend the Art and Cultural Affairs Law to protect authenticators by requiring enhanced pleading by plaintiffs filing suit against authenticators, and fee shifting requirements for the prevailing party. Favorable case law may also help reduce liability for authenticators.  Indeed, since the conference, a French court has overturned a 2013 judgment that required art expert Werner Spies to reimburse a collector for the price of a work that turned out to be another Beltracchi forgery, but that Spies authenticated as genuine in a catalogue raisonné. The French court held that an authenticator for a catalogue is not to be held to the higher standard of care as that of an expert consulted in the sale of a work.

Conclusion:

This fascinating conference brought together international experts in various fields of art, art history, science and law. The speakers recognized that controversy abounds as experts continue to reach different opinions regarding attribution of works of art, as well as what efforts to make to properly conserve works of art. As the value of art generally rises, the stakes are high. Disagreements over attribution are increasingly brought into the courts, where the battle of the experts in connoisseurship and science is left to the decision of judges and juries (those furthest from the art world). The eye of an experienced connoisseur, who can distinguish artistic styles, is still desperately needed. The ability to perform such a close inspection and analysis should be supplemented by modern scientific advances, but should never be replaced. Papers from the conference are being prepared for publication in 2016. In the meantime, the take away from the conference is to do due diligence and seek unbiased opinions for authentication or intervention in art handling from a combination of sources, including connoisseurs and scientists.  The conference also raised topics that warrant further exploration, such as ethical guidelines for conservators and how to seek and determine a consensus in opinions.

Suggested Readings:

About the author: Marie H. KramerPennsylvania attorney living in the United Kingdom, studying art and cultural heritage law. She can be reached at marie@kramerlegalbriefs.com 

Hold your Horses: Art Authenticators Not Protected Yet

By Irina Tarsis, Esq.*

Screen Shot 2015-06-01 at 3.01.42 PMOn June 15, 2015, New York State Senate passed a revised version of the Bill S01229A intended to amend the New York Arts and Cultural Affairs Law  by adding a provision intended to encourage art historians to offer their opinions concerning authenticity, attribution and authorship of works of fine art.

The proposed amendment is intended to protect art authenticators in the visual arts community from the risk of civil action suits. Why is this group in need of special protection? It is because the risk is real: those who opine on authenticity of artworks are increasingly threatened with legal action by the outraged/indignant collectors whose dreams of owning (and selling a masterwork) are dashed by the professional and expert opinions of authenticators.

Screen shot 2015-07-01 at 10.19.32 AMWe and others have reported on the plight of art authentication committees previously and together we are waiting to see our Google Alerts announce the passage of the New York State proposed law that would grant protection to the authenticators. This Bill has been in the works for years, a more robust version having been introduced without success back in 2013. Despite all the anticipation, as of July 1, 2015 the law has not passed yet, though some headlines have been suggesting or hinting otherwise. See for example “Art Authenticators Harassed by Lawsuits and Death Threats Get New Legal Protection” and “New York Senate Passes Bill to Protect Art Authenticators.”

Having some version of the Bill pass the New York Senate is a promising first step, but the battle is far from over. The New York Assembly has to vote in favor of the Bill as well. As of June 26, 2015, the first half of the 2015-2016 Session of the New York State Legislature is in recess. It is unclear at this time why the amendment was not brought up for a vote in the Assembly between the 15th of June and the 26th of June last month. However, unless the Speaker of the New York State Assembly, Carl E. Heastie, calls for a special session, the New York Assembly members will not return to vote on any of the pending bills until sometime in 2016. While the Assembly version of the Bill, A01018A, will not need to be reintroduced at that time (the Bill number remains unchanged for the entire two-year cycle), the Bill sponsors will have to bring it for a vote. If and when the Bill passes both houses, it will be presented to the Governor, Andrew Mark Cuomo, to either sign or reject. In the case of latter, sponsors of the Bill would need to go through yet another round of edits, introductions, lobbying, etc., etc.

The earliest the current Bill could be enacted in New York, if it is approved in the 2015-2016 Session and promptly endorsed by the Governor, is “the sixtieth day after it shall have become a law.” Then and only then, will “all [good faith] opinions as to the authenticity, attribution or authorship of a work of fine art provided to someone other than the authenticator” will be afforded protections “to ensure that only valid, verifiable claims against authenticators are allowed to proceed in civil court.” (See the full text of the proposed bill for details.)

Indeed, the law is anticipated to have an extraterritorial reach for art authenticators. For example, individuals outside of New York State would be able to contract for New York State law to govern any disputes arising from the agreement to review authenticity of an artwork. However, for now, and until January 2016, there is no change in circumstances and art authenticators remain exposed to litigation and to the ire of art holders seeking affirmation that they struck gold and not pyrite.

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The full text of the proposed bill is available here. Following are some of the sections from the Bill (with our editorial underlining) and excerpts from the Legislative Memo justifying the passage of the law:

Act to Amend New York Arts & Cultural Affairs Law:

IN ANY CIVIL ACTION BROUGHT AGAINST AN AUTHENTICATOR, … , THAT ARISES FROM OR RELATES TO THE AUTHENICATOR’S [SIC] OPINION OR INFORMATION CONCERNING A VISUAL ART MULTIPLE OR WORK OF FINE ART, THE CLAIMANT SHALL SPECIFY WITH PARTICULARITY IN THE COMPLAINT FACTS SUFFICIENT TO SUPPORT EACH ELEMENT OF THE CLAIM OR CLAIMS ASSERTED. (NY Arts and Cultural Affairs Law Section 15.12).

IN ANY CIVIL ACTION BROUGHT AGAINST AN AUTHENTICATOR … THAT ARISES FROM OR RELATES TO THE AUTHENTICATOR’S OPINION OR INFORMATION CONCERNING A VISUAL ART MULTIPLE OR WORK OF FINE ART, THE COURT MAY ALLOW THE PREVAILING AUTHENTICATOR THE COSTS OF THE ACTION TOGETHER WITH REASONABLE ATTORNEYS’ AND EXPERT WITNESSES’ FEES, PROVIDED, HOWEVER, THAT NO SUCH COSTS OR FEES SHALL BE MADE PURSUANT TO THIS SECTION EXCEPT UPON A WRITTEN FINDING OF GOOD AND JUST CAUSE, WHICH SHALL SPECIFY THE GROUNDS THEREOF. (NY Arts and Cultural Affairs Law Sec. 15.15 (4)B).

Justification:

In general, artwork is authenticated by a trained person through documentation, stylistic inquiry, and/or scientific verification. No one method is perfect as oftentimes authenticity is difficult to determine. While each authentication method has its own drawbacks, the role of authenticators as drivers of the art market cannot be overstated. Art authenticators reduce the risk of counterfeits and imitations flooding the art market that could potentially devalue the work of millions of artists.

In recent years, the work of authenticators has come under pressure from meritless lawsuits against those who render opinions in good faith. Such defense of expensive and frivolous lawsuits have left many in the industry reluctant to lend their expertise in authenticating art works.

Select Sources:

About the Author: This editorial is by Irina Tarsis, art lawyer and Founder and Director of Center for Art Law.

WYWH: NYCLA Discussion of Forensic Art Analysis

Screen Shot 2015-04-28 at 5.14.46 PMby Megan Noh, Esq.*

On Wednesday, April 1st, the New York County Lawyers Association (NYCLA)s Art Law Committee hosted James Martin, founder of Orion Analytical LLC, an independent laboratory dedicated to examining cultural property in authenticity studies and legal proceedings. Martin is a frequent guest in New York City; he recently gave a lecture at Center for Art Law’s “Youve Been Served” event, and is also an adjunct professor at the New York University School for Continued Education. Martin uses a range of scientific techniques – including technical photography, microscopy, elemental analysis, and chemical analysis of materials – to compare questioned and documented works, and identify anachronisms and anomalies in fraudulent and misattributed works. Mr. Martins presentation focused on his work in the context of several prominent art authenticity claims.

The first such instance was the widely-reported controversy surrounding 32 canvasses claimed by owner Alex Matter to be previously-unknown Jackson Pollock “drip/pour” works dating from 1946-1949. Mr. Matter purportedly discovered these works in an East Hampton warehouse in approximately 2002, and although the Pollock-Krasner Foundation officially ceased issuing authenticity opinions in the mid-1990s, its then-remaining members did express opinions about the Matter canvasses. Unfortunately, those opinions conflicted; as a result, three of the works were sent to Harvards Straus Center for Conservation, and more than twenty to Orion, so that both laboratories could conduct independent analyses. Mr. Martin found at least six anachronistic materials in the Matter canvasses he studied, including an automotive pigment first used on Ferrari automobiles in the 1980s, well after the works supposed date of execution. Orions official conclusion was that this scientific evidence indicated that the date and attribution of the works were not as alleged by Mr. Matter. Mr. Martin presented these findings, which were consistent with Harvards report of its own analysis (issued in January 2007) at an IFAR symposium in November 2007 and in a 2008 volume of IFARs journal, thus putting the matter to rest in New Yorks art community.

The second authenticity claim Mr. Martin discussed with NYCLAs ALC members was Lagrange v. Knoedler; Mr. Martin was cautious to limit his discussion to non-privileged information. (See our Knoedler Obituary). In this 2011 suit filed in the Southern District of New York, billionaire hedge fund manager Pierre Lagrange brought claims for breach of contract, fraud, and unjust enrichment against the then-venerable American gallery where he had purchased a work attributed to Jackson Pollock. According to the complaint, at the time of purchase, Knoedler told Mr. Lagrange that the Pollock catalogue raisonné was in the process of being updated, and would ultimately include the painting in question. However, several years after his purchase, Mr. Lagrange tried to consign the painting for auction, and two major auction houses rejected it on the basis that it was not included in the catalogue raisonné. Mr. Lagrange sought to rescind the Knoedler sale, alleging that there were in fact never any definitive plans to update the catalogue raisonné to include the painting in question, and that Knoedler had knowingly misrepresented these facts in order to sell him the work. Orion was retained to analyze the painting, and found at least three paints that were produced later than its purported 1950 date of execution. Apparently Knoedler shut its doors a day after receivingOrions report and the two sides subsequently reached a confidential settlement, while other cases brought against Knoedler are still pending.

This NYCLA meeting was a wonderful opportunity for members to learn more about the importance of scientific analysis in what Mr. Martin refers to as the “three-legged stool” model of authentication, where connoisseurship and provenance are supported by a third essential element: technical and scientific examination of physical substance. As the art market grows in complexity and commercial value, and questions of attribution become increasingly contentious and convoluted, authentication methodology will continue to evolve. It is likely that collectors and the attorneys who represent them will place more weight on this leg of the so-called stool, and Mr. Martins presentation was a welcome primer in that area.

Suggested Reading:

  • De Sole v. Knoedler Gallery, LLC, 974 F. Supp. 2d 274 (S.D.N.Y. 2013).
  • The Martin Hilti Family Trust v. Knoedler Gallery, LLC et al., 1:2013-cv-00657(S.D.N.Y. Jan 29, 2013).
  • White v. Freedman et al., 1:2013-cv-01193 (S.D.N.Y. Feb. 21, 2013).
  • David Mirvish Gallery Limited et al v. Knoedler Gallery, LLC, 1:2013-cv-01216 (S.D.N.Y. Feb. 22, 2013).
  • The Arthur Taubman Trust et al v. Knoedler Gallery, LLC et al., 1:2013-cv- 03011 (S.D.N.Y. May 3, 2013).
  • Rosenfeld v. Knoedler Gallery, 653030/2013 (Aug. 30, 2013).

About the author: Megan E. Noh, Esq. is the Assistant General Counsel of Bonhams and an active member of both the New York City Bar Association’s Art Law Committee and the New York County Lawyers’ Association.

Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitution for seeking representation.

Caveat artifex: The case of one Immendorff Ready-Made

By Steffanie E. Keim, Esq. 

The German artist Jörg Immendorff (June 14, 1945 – May 28, 2007) was controversial during his lifetime and the controversies surrounding his art have not ended with his death.

Following Immendorff’s death, his estate became embroiled in numerous high profile lawsuits, including a suit by his illegitimate son, Jean-Louis, from a relationship with Marie-Josephine Lynen, and several suits launched by his widow, Oda Jaune, against various gallery owners and art dealers he had dealt with.

One of Jaune’s suits dealt with a version of the painting, Ready-Made de l´Histoire dans Café de Flore, offered for sale in Düsseldorf with the Viennese auction house Dorotheum auction house in 2007 (the painting was withdrawn from the auction following the criminal complaint by Jaune as discussed below). In 2008, Michael Werner, Immendorff’s long-term art dealer, issued a warning that some works regarded as Immendorff’s may be forgeries. Critics claim that the forgery controversy is merely a public relations stunt and a market dispute between gallery owners and art dealers with financial interests.

To fully understand the particular controversy surrounding what may be the final ruling in the matter concerning one of Immendorff’s paintings, Ready-Made de l´Histoire dans Café de Flore, which was originally purchased at the artist’s studio in 1999, one has to take into consideration the life and work of the artist. Born in 1945, Immendorff was an artist and a political activists from an early age. Immendorff initially became famous with his series, first Café Deutschland (1977 to 1982), and later Café de Flore where he depicted himself in a number of roles surrounded by a community of intellectuals and artists. A student of Joseph Beuys (a well known artist in his own right), one of Immendorff’s  most famous works, Affenplastik, depicts Immendorff as a monkey child  being lead by Beuys. Affenplastik, also known as Malerstamm, is part of a 17-piece series of bronze sculptures and shows Beuys explaining the world with a grand gesture of his raised left arm while leading a monkey child. Explaining and understanding the world was an important mission of Beuys’; Affenplastik casts Immendorff as a willing pupil.

Immendorff was famous not only for his artworks but also for a lavish and controversial life style. In fact, according to his art dealer Michael Werner, “Joerg could not paint as fast as he wanted to spend money,” thus frequently owing money to Werner. Immendorff was known for producing copies of his own work and for selling signed copies from his workshop. He created further legal confusion by signing contradictory agreements with different galleries in addition to selling works directly from his studio during his lifetime. In 1997, Immendorff was diagnosed with amyotrophic lateral sclerosis (ALS) (also known as Lou Gehrig’s Disease), a progressive neurodegenerative disease that eventually fully paralyzed him and led to his death in 2007. As a result of his debilitating condition, during his last decade, his assistants were producing Immendorff works under the artist’s close instruction and direction. Immendorff reportedly had a reputation for strict quality control which often required numerous corrections of a single brush stroke by his assistants before Immendorff would approve a work as finished.

Following the artist’s death, his widow Oda Jaune filed criminal charges claiming that the painting Ready-Made de l´Histoire dans Café de Flore (120 x 100 cm) [Ready-Made B] which was consigned for auction in 2007 by the Defendant, was a forgery based on a painting created in 1987 Ready-Made de l´Histoire dans Café de Flore with the dimensions 150 x 175 cm [Ready-Made A]. The prosecutor’s office did not find enough evidence during its criminal investigation to lay charges and Jaune decided to pursue her claim in a private action in one of the most publicized and closely followed law suits discussed here concerning Immendorff’s painting, Ready-Made de l´Histoire dans Café de Flore [Ready-Made B] which first began in 2008 and seems to have finally been settled in court.

In its decision on August 5, 2014, the Court of Appeals (Oberlandesgericht) Düsseldorf, reversed the lower court (Landgericht) decision which had ordered the destruction of the painting.

The uncontested underlying facts were that Ready-Made B was originally purchased – accompanied by a certificate of authenticity – at Immendorff’s studio in 1999 for the price of 30,000 DM. The original purchaser received Ready-Made B from and paid the purchase price to one of Immendorff’s assistants. The original purchaser then sold the painting to the Defendant, his brother, in 2001. In 2007 the Defendant put it up for auction in Düsseldorf with the Viennese auction house Dorotheum. Once the painting had been listed in the catalogue, several discoveries were made:  i) there was a duplicate original created in 1987 owned by a collector in New Zealand [Ready-Made A], and ii) Ready-Made B had different dimensions than the 1987 version.

The Plaintiff, Oda Jaune claimed that the painting owned by the Defendant and listed in the auction catalogue – Ready-Made B- either was a forgery or was sold without Immendorff’s authorization respectively. According to the Plaintiff, in either case Ready-Made B was an unlawful propagation of Immendorff’s work and she as his heir was entitled to injunctive relief in the form of the destruction of Ready-Made B.

On October 17, 2012 the lower court (Landgericht Düsseldorf, 12 O 473/08), ruled in favor of the Plaintiff and granted the injunctive relief as requested, ordering the destruction of the painting.

The order was based on Articles 97 Abs. 1 a.F., 98 Abs. 1 a.F., 16 Abs. 1 of the German Copyright Act (UrhG). Under Article 97 UrhG, an injured copyright owner can bring an action for injunctive relief requiring the infringer to cease and desist if there is a danger of recurring acts of infringement, as well as an action for damages for intentional or negligent  infringement.  Article 98 UrhG gives the injured copyright owner the right to require destruction of all copies unlawfully manufactured, unlawfully distributed or intended for unlawful distribution in the possession of or owned by the infringer, unless such destruction is disproportionate or unreasonable.

The lower court’s opinion relies heavily on the expert opinion of art historian and Immendorff expert Siegfried Gohr who discusses the differences between Ready-Made A and Ready-Made B in great detail and determines that Ready-Made B was copied using a projector and in his opinion could have not been authorized by Immendorff, since Immendorff was not known to create a “2nd edition” of his works. Based on these factors and his personal knowledge of the artist and his work process, Gohr deemed it unlikely that Immendorff authorized Ready-Made B and stated that if Ready-Made A and Ready-Made B had been painted by the same artist he would need to resign as an art historian.

Based on Gohr’s testimony, the lower court concluded that Ready-Made B was an unlawful copy of Ready-Made A, and further held that the Defendant distributed the copy by putting it up for auction. Pursuant to Article 15 and 16 UrhG, all exploitation rights, including reproduction and distribution, lay exclusively with the author and any reproduction is generally unlawful unless there is consent or legal justification.

In the eyes of the lower court, the Defendant failed to meet his burden of proof, citing a failure to substantiate claims that he reproduced and sold Ready-Made B with Immendorff’s consent. The court also found that the destruction of Ready-Made B was proportional and not unreasonable since the infringement of the author’s rights could not be eliminated in a less drastic but similarly efficient way. The Plaintiff’s predominant interest in avoiding forgeries circulating next to the original without an obvious and easy way of distinguishing one from the other outweighs any rights or interest of the Defendant as the owner according to the lower court.

On August 5, 2014, the Court of Appeals reversed the lower court’s decision and held that Ready-Made B will not be destroyed since its distribution is lawful. The Court of Appeals found it unnecessary to decide whether Ready-Made B is a forgery since the circumstances surrounding the sale of Ready-Made B at Immendorff’s studio are to be construed as apparent consent by Immendorff as the undisputed author of Ready-Made A, to the publication and exploitation of Ready-Made B according to Article 23 UrhG. Pursuant to Article 23 UrhG adaptations or other transformations of a work may be published or exploited only with the consent of the author of the adapted or transformed work.

The Court of Appeals found that the evidence established that Immendorff knew of and had at least tolerated direct sales in his studio by his assistants. He thereby made it look like he consented to the sale and thereby the publication and distribution of works of art sold in his studio as “his“ artworks.

Since the original purchaser was protected in his trust in the apparent consent, the Plaintiff, as the artist’s heir is bound by it and is barred by estoppel, even if the assistant selling Ready-Made B may have sold a painting not authorized by Immendorff. The Court of Appeals refused to determine if Ready-Made B is a forgery or not – even though the assistant selling Ready-Made B was a witness and could have probably answered the questions by whom, when and how exactly the copy was made once and for all. The Court of Appeals even goes as far as admitting that it has doubts regarding the authenticity of Ready-Made B and the accompanying certificate of authenticity, however the appearance of consent based on the totality of the circumstances is sufficient to prevent Jaune from succeeding in her claims.

Courts are historically uneasy when it comes to answering art related questions since they have to rely on expert testimony and the conflicting parties usually find experts with conflicting testimonies, whereby a battle of the experts ensues.

In this case, however, the Court of Appeals decided to allocate the risk with the seller. While the art market and its participants are often blamed for not following basic legal standards or neglecting to perform due diligence, a purchaser may feel rightfully justified in her reliance in the authenticity of a work of art when the purchase is made directly from the artist’s studio and is accompanied by a certificate of authenticity. According to the Court, it is just to allocate risk of selling a fake with the artist in the instances where there are no aggravating circumstances, which would raise concerns in a well-informed objective purchaser. A possible aggravating circumstance would be, for example, a widely reported fact that the artist does not engage in direct studio sales.

The uncertainty whether the question regarding the authenticity of this and other works by Immendorff will affect the market value of his entire oeuvre remains. The current risk allocation seems to invite a decline in market value across the board due to the fact that the court may have “created” new Immendorff works by labeling every artwork an “Immendorff” that was sold directly from the artist’s studio.

Given that the art market is unpredictable and is subject to many influences, not the least of them aesthetic taste and fashion, legal decisions with a potentially large impact on the art market end up having little or none of the expected effect. It remains to be seen how Ready-Made B does compared to other Immendorff works if and when it is offered for sale again.

In conclusion the old age “caveat emptor” is not the only lesson for the art world. In this case the Court of Appeals sided with the purchaser specifically because the seller, in this case artist, did not do enough to protect his legacy but instead potentially endangered it by his own actions.

Sources:

  • Henri Neuendorf, “Lawsuit Erupts Over 400 Jörg Immendorff Works” Artnet
  • Benebelte Affen, http://index-magazin.com/online/benebelte-affen/
  • Article 17 Section 2 UrhG
  • Article 23 Urhg

About the Author: Steffanie E. Keim is admitted to the bar in New York and Germany and is practicing law and pursuing her interest in art law in New York. She may be reached at 917-669-2514 or steffanie.e.keim@hotmail.com

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

Case Review: Karlsson v. Mangan

By Chris Michaels*

On 11 June 2014, Plaintiff Anders Karlsson filed a case in the Central District of California against various individuals and entities alleging that they set up fraudulent investment schemes involving fake or forged artworks, attributed to Pollock and de Koonig, as well as breached their fiduciary duties to Plaintiff regarding his investment in a luxury yacht. The Plaintiff, Anders Karlsson, is engaged in mining, procuring, and wholesale and retail purchases and sales of boutique, minerals, fossils, gems, and natural history items. The named defendants are, John Leo Mangan III, Michael William Force, Taryn Burns, Jovian “John” Re, Leslie James, and the entities Art Possible, LLC, Art Force, LLC, and Raven Art, Inc.

In the Complaint, Karlsson alleges that his former personal friend of nineteen years, Defendant Leslie James, became aware that Karlsson was about to generate substantial sums of investment capital through the sale of an interest in one of his companies. The Complaint states that, armed with this information, Defendant James and the other Defendants conspired and acted in concert to defraud Karlsson through the use of fake and/or forged artworks.

The first claim in the Complaint involves the alleged breach of a Joint Venture Agreement (“JVA”) between Karlsson and Defendants Raven Art, Inc., Mangan, and Force. Pursuant to the JVA, Karlsson purchased a Jackson Pollock painting for $1,000,000, in which Karlsson maintained a 23.5% interest. The Raven Art Defendants represented the Pollock to be authentic and, according to Karlsson, he relied on their representations when purchasing the painting. Under the terms of the JVA, the painting was not to be moved from storage in Long Island City, New York without Karlsson’s written consent nor without insurance approved by Karlsson. Additionally, the JVA stipulated that painting was not to be sold for less than $30,000,000.

Karlsson maintains that, in spite of the terms of the JVA and in breach thereof, the painting was, in fact, moved without his consent and without the requisite insurance to an expert chemical art researcher in London, England. While the Complaint does not specifically state why the painting was moved to the researcher, it appears that the move was to have the researcher confirm the authenticity of the painting. In addition to the breach of contract claim on this issue, this claim of the Complaint also notes that Karlsson now has legitimate issues regarding the authenticity, provenance, and true value of the painting.

In the second claim, Karlsson maintains that he paid Defendant Re, identified in the Complaint as a “major source” of renowned artworks, $793,000 for twenty-one artworks. The artworks were represented by Re, Art Force, and Art Possible to Karlsson as being genuine and authentic works, with documented valid provenance. Of the twenty-one works purchased, three of them were Jackson Pollock paintings. Karlsson states that works were purchased pursuant to “earn-in” contracts, under which the Re, Art Force, and Art Possible were required to perform services to authenticate the artworks. To date, Karlsson asserts that no authentication services have been performed by the Defendants and, in fact, Karlsson claims that at least four of the works are fake: all three Pollock paintings and a Max Ernst sculpture. Karlsson maintains that the Defendants had knowledge of the fakes, and also states that some of the remainder of the artworks purchased also appeared to be fakes and/or with falsified provenance. Among other things, Karlsson is seeking declaratory relief on the issues of authenticity, provenance, and the true value of the Re supplied artworks.

The third claim of the Complaint deals with another earn-in contract whereby Karlsson purchased works from the Art Force Defendants for $695,000. Similar to the second claim, Karlsson states that he was coerced to buy the works, including a John Fernely, Sr. oil on canvas, because of representations made by Art Force that the works were authentic. Karlsson now claims that the works are fakes and he believes that the Art Force defendants knew of their falsity before the sale.

The fourth claim of the Complaint involves another earn-in contract issue, this time between Karlsson, Art Force and Art Possible, wherein Karlsson purchased nine artworks and agreed to provide the capital, time, and effort to arrange for repair and restoration of the works. As stated in the Complaint, Karlsson now believes that at least five of the nine artworks are fakes and the other four are of uncertain authenticity.

The fifth claim in the Complaint, solely against Defendant Leslie James, alleges breach of contract, fraud in the inducement, and theft and conversion, among other causes of action. In this claim, Karlsson claims that James bought several fake Picasso artworks from the Art Force Defendants in order to include them in a compendium of works that James is self-publishing. As James was compiling works to include in his publication, Karlsson delivered to James a collection of twelve paintings by Gaston Longchamps to be photographed for inclusion. Karlsson claims that James returned eleven out the twelve paintings and is now refusing to return the last painting.

Additionally, Karlsson asserts here that he personally loaned James $75,500 and James provided two paintings as collateral: a Pollock painting and a de Koonig painting. When Karlsson demanded repayment of the loan and James refused, Karlsson paid to have the paintings authenticated by art experts. The results of those authentication efforts were negative and, when Karlsson informed James of the results, James demanded their return so that they could be sold. Karlsson now alleges that James never intended to sell the paintings and states that they are now displayed in James’ publication as authentic paintings.

Finally, the last claim of the Complaint avers that Defendants Art Possible, Mangan III, and Force induced Karlsson to purchase a yacht for a price that far exceeds its fair market value and that is less than the value represented to Karlsson by the Defendants.

Through the Complaint, Karlsson is seeking, among other things, compensatory, special and actual, consequential, and punitive and/or treble damages. Karlsson is also seeking injunctive relief to compel specific performance of the various agreements outlined above.

Interestingly, in the claims associated with the alleged fake and/or forged artworks, Plaintiff alleges he is entitled to declaratory relief as to the issues of authenticity, provenance, and true value of the artworks. Through this call for relief, it appears that Plaintiff is requesting the court to definitively rule on the authenticity of the works even though Plaintiff is stating that, for the majority of the works, the requisite provenance research and authentication efforts have yet to be performed. It seems likely that the expensive and lengthy process of determining the authenticity of these works will need to be performed by a third party before any determination is made.

Plaintiff is represented by Meir J. Westreich of Pasadena, CA.

Sources:

  • Complaint, in Karlsson v. Mangan III, C.D. Cal., Filed on June 11, 2014).

About: Chris Michaels is a litigation attorney in the Philadelphia office of the Atlanta, GA-based law firm, Cruser & Mitchell, LLP, where he actively pursues his interest in the field of art law. He may be reached at (518) 421-7238, chriswmichaels@gmail.com, or on Twitter @CMichaels88.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

Attention all Art Buyers – Caveat Emptor and then Emptor some more!

by Hanoch Sheps, Esq.*

Caveat Emptor (Latin for “let the buyer beware”) could quite possibly be the understatement of the century, at least it appears to be one of the glaring messages delivered at the NYU Art Crime and Cultural Heritage: Fakes, Forgeries, and Looted and Stolen Art Conference (the “Conference”). Three days’ worth of panels and discussions devoted to topics ranging from art crime to cultural heritage and authenticity have proved that even the most innocuous canvas or a Faberge egg might conceal a dark truth. As the seedy underbelly of one of the most unregulated markets in the world continues to swell, at no fault of their own, nevertheless, all buyers seem to focus on are the headline-making sales of contemporary art.

Although three days somehow barely scrapes the surface, the NYU Conference exposed cautionary tales and lessons learned on some of the more recurring themes and pitfalls of the art market.

Authenticity

Our readers will know by now that forgers are becoming more brazen in both their forgeries and outright candidness about their criminal proclivities. Most notably, the infamous forger Wolfgang Beltracchi spoke openly on 60 Minutes in February about how he can walk into famous museums around the world and point out his own forgeries. Moreover, Beltracchi went so far as to show 60 Minutes’ Bob Simon how easily and quickly he can forge a Max Ernst, the German surrealist of the early twentieth century. Then there are “former” forgers like Ken Perenyi who recently penned a book entitled “Caveat Emptor: The Secret Life of an American Art Forger.” Pegasus, 2013. In his book, Perenyi claims that he now makes replicas in the style of famous artists, rather than marketing them as “originals” made by those artists. (For more on distinguishing between replicas and fakes, consider reading A Plethora of Fakes and a Series of Thoughts: Where Has All The Real “Art” Gone?, December 2013). Do we take the former forger’s word that he is no longer forging? Or do buyers acknowledge that in an unregulated market saturated with forgeries, one treads into the minefield at their own risk? Issues concerning authenticity may actually speak to the larger challenge of “reputation building” where galleries, auction houses, and the artists themselves highly depend on word of mouth (and are intentionally opaque where records of transactions are concerned). One of the presenters at the NYU Conference, Scott Hodes, Senior Counsel at Bryan Cave LLP, noted that success in perpetrating a fraud is often a function of a greater reputation. One need only look at the ongoing Knoedler case to see that a gallery’s reputation makes it a target for forgers, and increases the likelihood of forgeries landing in the buyer’s hands.

Ideas for buyers to consider* (see disclaimer below):

Know your dealerFind out whether the artwork on consignment or owned by the dealer. Makes sure the dealer is not making multiple consignments of the same piece. Review your consignment agreement, make efforts to remove arbitration clauses from your consignment agreement. Doing so will change how a buyer can respond if a work is revealed as a forgery.

Liens (s) See how many liens others have filed against the dealer (few can mean the dealer owns many of their works outright, many can mean most of the works are on consignment). (For more on this topic see Herrick, Feinstein LLP’s, Time to Take the Risk Out of Consignments).

The reputation of galleries and auction houses is not the only factor that may “invite” criminal objectives, merely the name of the artist can be enough of a pull for buyers—and in some cases even world-renowned experts. There will never be a shortage of cautionary tales when exploring the niches of art markets, but some stood out in this Conference. Influence and reputation draws imitators and forgers to the fore like moths to a flame, but only few names have the clout of Faberge in the world of fine and decorative arts. Dr. Geza von Habsburg, a Faberge expert, recounted how in the span of a few years he had received numerous requests from different parties to examine what ultimately turned out to be the same collection of paltry fakes. Historians would have us believe that even renowned gallerist Armand Hammer himself increased the number of Faberge objects when he found out the whereabouts of their goldsmiths’ branding tools. If true, it only goes to show that the opportunity to sell Faberge was too good to pass up even for people with stellar reputations. Would the lesson there be to encourage authorities to seize and destroy fakes, as some European agencies eagerly consider as a solution to the proliferation of fakes? (For more on the topic see Burning Fake Chagall’s, Market Integrity versus Ownership Rights – A Zero Sum Game). Be it a dealer, or innocent buyer, it seems that if they cannot sell the fakes to a reputable purchaser, they find another upon whom to pass off the tainted goods. And thus, fakes simply continue circulating in the market. One of the reasons that the Faberge forgeries continue to circulate in the market, is that their owners are in denial of their authenticity. A more intriguing story of the pervasiveness and appeal of forgeries presented at the Conference was by Salomon Grimberg, author of Frida Kahlo Catalogue Raisonné. As a Kahlo aficionado, what made his story unique was that even when faced with a work he knew to be fake, he could not resist the temptation to own something that he could pretend was a half-decent Kahlo – if only for a moment. Other less knowledgeable buyers can easily fall prey if they do not seek out objectivity of an expert.

Food for thoughtbuyers should seek out objective opinions and in some cases second, third opinions (all the while hoping to find that rare “consensus,” if such a degree of certainty exists).

—Due Diligence—

Coming in only second to “caveat emptor” as the critical takeaway from the NYU Conference is “do your due diligence.” To some it is a hackneyed phrase, unfortunately, for others it falls on deaf ears. It truly cannot be emphasized enough that proper due diligence is the key to any successful art market transaction. Buyers simply cannot afford the risk of neglecting proper background research. In such a litigious market, the motto should be “pursue information now or pursue your money in court later.” Knowing the time consuming nature and expense of litigation makes it obvious to pursue information where possible. Whatever the issue – authenticity, provenance, looting or otherwise – a rigorous review prior to purchase will go a long way.

Provenance—

It would be a mistake to think that the last battle of World War II ended with the war, because it is simply not true. A war of a different sort rages on in courts and in the homes of those from whom property was stolen. At times looted art continues to circulate because of purely falsified provenance documents prior to sale. At others circulation results from willing parties who ignore clear “gaps” around the 1930-45 period. Cases of fine and decorative art take center stage as sagas like Cornelius Gurlitt’s continue, although now even he is no longer around to fight. Chris Marinello of Art Recovery International spoke with Marianne Rosenberg, attorney and granddaughter of the legendary gallerist Paul Rosenberg. In their conversation, they made clear that there were quite a few battles left to fight. The recovery of the Rosenberg collection that was looted during WWII is just one of many collections that sustained major loses on the part of the Nazi’s and other occupying forces. As recently as a few weeks ago, the Gurlitt Task Force acknowledged that Gurlitt possessed Henri Matisse’s “Seated Woman” which was looted from the Rosenberg collection. The Rosenberg’s are unique and benefit from extensive and scrupulous records that Mr. Rosenberg maintained as part of his regular practice, but are also a credit to his foresight in an increasingly difficult situation for French Jewry. Even with such records, restitution can be a nigh impossible endeavor that can take decades. (See Gurlitt Task Force Makes First Determination that Matisse “Seated Woman” Was Stolen From Rosenbergs; Questions Remain About What Happens Next, The Art Law Report, June 12, 2014). WWII is only one common source of provenance issues, but it highlights a poignant point that buyers must take particular caution when reviewing an artwork’s provenance – they present issues that are here to stay, and care not for notions of sentiment and perceived fairness.

Lesson to learn there are ample resources, like Art Recovery International, Interpol, the International Foundation for Art Research (IFAR) that buyers can use to identify or report stolen and questionable works.

Looting—

Panels on this topic identified the reality that in times of unrest, looting becomes rampant. Only this week it was reported that fighters from the Islamic State of Iraq and Syria (ISIS) have begun collecting “taxes” from parties seeking to smuggle Syrian and Iraqi antiquities (all parts of ancient Mesopotamia) to further finance their insurgency. Not only is the region in a state of upheaval, but those causing the chaos actively encourage looting, a truly deadly combination – especially in a “pay the tax or die” situation. [The Sunday Times]. Simply put, following the unrest, damage and destruction of cultural heritage sites is not far behind. Perhaps the biggest problem beyond actual theft is the destruction of the historical context of those items. When thieves remove objects from a site and lie about their origin, humanity loses valuable ethnological and archaeological information making it impossible to recover vital information, including with whom it was buried, with what else, strata to identify age – the list only grows from there. To compound the loss of cultural heritage is the illicit importation and exportation of cultural objects through the falsification of customs forms and outright smuggling. Objects then enter the porous market where unsuspecting buyers fall prey. Fortunately for art buyers, art market professionals come together to provide programs like the NYU Conference, which feature and highlight important issues in the field. It goes without saying that the most watchful eye, the most scrupulous attorney, nor the best insurance investigator will catch everything. Nevertheless, if we can glean a parting lesson from the NYU Conference, it is that buyers worldwide may need to be as passionate about doing their background work as they are about the art itself.

*About the Author: Hanoch Sheps, Esq., is an attorney in New York. He may be reached at Hanoch.sheps2@gmail.com.

Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitute for seeking representation

Appealing decision in Thompson v. Warhol (2013)

In November 2011, Supreme Court Judge in New York, Carol R. Edmead decided Thompson v. Andy Warhol Foundation Board. The Complaint brought in the case alleged “breach of contract against the Board; negligent misrepresentation against the Board, the Foundation, and the Museum, and gross negligence against the Board, the Foundation, and the Museum.” Meaning, Plaintiff purchased a drawing believed to be a self-portrait by Andy Warhol. He submitted it to the Board of the Andy Warhol Foundation three times, in March 2008, January 2009, and November 2009 for authentication. It was alleged that each time that plaintiff submitted the Drawing, he included additional information he thought would bolster his claim that his purchase was made by Warhol. However, the Board repeatedly ruled that it was not authentic. Each time, the Board informed Plaintiff how it would behave if and when it formed its opinion, and Thompson agreed not to sue the Board for its opinion.

Clearly, Plaintiff was not satisfied with the results of the Board’s deliberations. Instead of sending white smoke into the air, the parties went to court, where the judge moved to dismiss the complaint.

On appeal just last month, Judges from the First Department Appellate Division, Friedman, Sweeny, Renwick, Freedman and Roman affirmed that “Plaintiff’s claims must be dismissed, as defendants’ only duty to plaintiff was that undertaken by the letter agreements.” They held that the relationship was not fiduciary and most importantly repeated that “the market place is the appropriate place to resolve authentication disputes” (citing Thome v Alexander & Louisa Calder Found., 70 AD3d 88, 890 N.Y.S.2d 16 [2009]. Finally, the court declined to impose sanction on either side “contrary to the parties’ arguments” regarding their respective conduct.

If hard cases make for bad law, this was clearly an easy case (or there is another explanation to the seemingly good law making here).

Attorneys on the case: Michael D. Rips with Steptoe & Johnson LLP for Thompson and Luke Nikas with Boies Schiller & Flexner, LLP for the Board.

Sources: Thompson v Andy Warhol Found. for the Visual Arts, Inc., 33 Misc. 3d 1221(A) (N.Y. Sup. Ct. 2011), aff’d by Thompson v Andy Warhol Found. for the Visual Arts, Inc., 103 A.D.3d 528 (N.Y. App. Div. 1st Dep’t 2013)