Pablo Picasso famously once said,¬†‚ÄúWe all know that art is not the¬†truth.‚ÄĚ
With the recent conclusion of¬†the first lawsuit¬†filed against the¬†now defunct,¬†Knoedler Gallery¬†of New York, for selling forgeries,¬†the art world has been abuzz with¬†stories of high-end fakes and the¬†grave issue of false attributions.¬†However, it is a universally¬†established fact that forgeries are¬†not a recent phenomenon but in¬†fact have only grown in prevelance¬†over the last four centuries.
Currently, the FBI¬†estimates that art¬†theft, fraud, looting, and trafficking¬†across state and international lines¬†are a ‚Äúlooming criminal enterprise¬†with estimated losses running as¬†high as $6 billion annually.‚ÄĚ
Fake works of art can take many¬†different forms. Some of the most¬†common are the unauthorised
reproductions that violate the ¬†copyright of the artist. In another¬†scenario, the reproduction may¬†have been authorised, but someone¬†adds the artists signature – either¬†forged or copied. Then of course,¬†there are the out-and-out forgeries¬†sold as the original work of the¬†artist.
The law of supply and demand¬†dictates that there will be no end¬†to the rising values of artworks¬†done by the hands of the ‚ÄúMasters‚ÄĚ.¬†With the news full of front-page¬†headlines reporting the exorbitant¬†prices realised at auctions, not¬†only has the attention of the world¬†been focused on the art market¬†and its valuable works, but this¬†reality has not gone unnoticed by¬†the forgers as well. With the rising¬†trend in the price levels of Indian¬†Art particularly, Pre-Modern and¬†Modern, art forgery will proliferate¬†as forgers will find incentive in¬†the skyrocketing sales. The global¬†art market is at a crucial juncture¬†where it seems that forgeries¬†compromise a major portion of¬†the market. The inherent nature¬†of a fake is that its true identity¬†is unknown and often goes¬†undetected which makes it difficult¬†to keep a track of the number of
forgeries that exist.
The expansion of the practice¬†of connoisseurship has expanded¬†with the growth of the art market¬†as art collectors turn to experts to¬†provide them with advise about¬†their purchases.The framework¬†based on the notion that ‚Äúoriginals‚ÄĚ¬†posess certain qualities absent¬†even in the best copies, requires¬†the existence of an expert with the¬†distinctive ability to distinguish¬†between the two. It is, essentially,¬†a circular relationship: as prices of¬†the works escalate, the need for the¬†opinion of an art expert rises; and¬†as art experts vouch for the works¬†and their authenticity, the works¬†become more coveted; leading¬†to a higher rise of the art market¬†prices. To authenticate a work of¬†art is to establish that it is what¬†it claims to be and it is primarily¬†concerned with the identity of the¬†artist, the place and period of the¬†origin, the historical connection of¬†the art works or any other claimed attribute.
Is the work of art real and how¬†much is its worth? In the world¬†of art, no two questions come up¬†as often or lead to as many legal¬†disputes as these two. As evidenced¬†in the above mentioned Knoedler¬†Gallery legal battle, it is alarming¬†to learn of the record breaking¬†prices that are paid for works of art¬†that are believed to be authentic.¬†The heart of all forgery disputes is¬†the determination of authenticity.¬†Such disputes arise initially with¬†reference to numerous private¬†decisions by experts, scholars,¬†dealers, buyers and sellers.
Some of the other circumstances¬†when art authentication issues¬†may also arise are 1) when¬†auction houses, art dealers, or¬†other individuals sell works of¬†art; 2) when scholars or other¬†experts make an unsolicited¬†public comment or publication¬†about a work of art; 3) when¬†art experts or scholars author
catalogues raisonnes; 4) when¬†curators produce retrospective¬†exhibitions at museums or galleries;¬†and 5) when art authentication¬†committees and individual experts¬†respond to authentication queries.
It has been reinforced by way of¬†international precedents, that the¬†three basic inquiries recognised¬†by the courts while deciding¬†legal disputes on authenticity¬†are the provenance of an art¬†work, connoisseurship and less¬†frequently, scientific testing.
The art market is one of the largest (if not the largest)¬†unregulated markets. It is¬†pertinent for owners of art works¬†to protect their investments. The¬†best protection though, for any¬†collector or buyer from art forgery¬†schemes is to conduct both art¬†and legal due diligence. The same¬†way home buyers hire companies¬†and inspectors to complete¬†due diligence research prior to¬†purchasing a new home, the same
due diligence is necessary for art¬†purchases, particularly because¬†many works command a value that¬†is many times higher the average¬†piece of real estate. It is essential¬†for buyers to conduct their own ‚Äúindependent‚ÄĚ authentication¬†investigation by completing¬†due diligence prior to making¬†any purchase in order to avoid¬†forgeries. It is easy for a seller to¬†find art experts who support their¬†authorship claims or for that matter¬†even furnish a fake certificate of¬†authenticity to support the sale.¬†Rather than relying on the experts¬†appointed by the seller, a potential¬†buyer should complete the due¬†diligence procedures by appointing¬†his or her own art law advisors and¬†trusted art experts. In addition, it is¬†equally important for the buyers to¬†investigate the sellers‚Äô history.
It has been observed in several¬†international authentication¬†legal disputes, judges have been¬†cognisant of the realities of the art market, and more and more ¬†often courts expect art collectors to¬†complete due diligence by hiring¬†experts to examine authenticity.¬†In cases involving both auction¬†houses and private sales, courts¬†have stressed the need for buyers¬†to investigate the true nature of a¬†work before purchase.
India is no doubt a country that¬†requires the introduction and the¬†practice of the disciplinary regime¬†of laws relating to the arts and¬†antiquities. This arena, which is raw¬†and unchartered, requires a vision,¬†thinking and absolute dedication.¬†A vision which will combine the¬†intellectual powers and activism
of the members of the art world as¬†well as the legal fraternity to build¬†a more reliable and consistent
“This article is taken from “Purchasing¬†Art in a Market Full of Forgeries: Risks and Legal Remedies for Buyers,”¬†written by Leila A. Amineddoleh, an art and IP lawyer at Galluzzo &¬†Amineddoleh LLP.”