Nearly everyone involved in the art market today will admit that anxiety pervades the authentication, sale and distribution of art.
There is good reason for this. Soaring prices have transformed the cost-benefit analysis of suing, making fraud proportionately more profitable. High financial stakes, a largely unregulated international market, the preponderance of forgeries and natural human error – all within a litigation-happy culture – means that no one is immune to risk. At the heart of this is the disturbing realisation that sometimes we cannot trust what we – or others, even recognised experts – see.
In essence, the structures, attitudes and approaches that have shaped art, its authentication and its market for nearly two centuries are no longer able to address the contingency and complexity of the contemporary scenario.
The following is an overview of the conditions and patterns that both reflect and contribute to the pressing problems faced by artist foundations, museums, collectors, dealers and lawmakers today. Specific cases illustrate the myriad reasons, both historical and contemporary, why the art market has become such a precarious, and at times paranoid, arena. It is from these understandings that its constituents can come together and begin to collectively discuss, and ultimately decide, on effective solutions.
While not always the case, questions or exchanges concerning the authenticity of a work between the owner and the gallery owner or foundation are often attended by a lack of confidence on both sides.
Owners are often reluctant to send works to foundations for fear they will be confiscated or be literally indelibly stamped with an ink mark as a fake, and that this one opinion will have not only destroyed the work’s reputation, but also the work itself. Similarly, works sent to museums for authentication typically will be brought in for examination only once; consequently, the current curator’s opinion will likely adhere to that art object in perpetuity. There are also common cases in which the opinions of prominent experts on an artist differ, and as a result the piece remains in limbo indefinitely. We are left without a mechanism to address new finds – the improbable is not the impossible, and the market and artists suffer as a result of this authentication gridlock. It is well known that an object of art can change attribution at several points in its lifetime as the body of knowledge surrounding it increases, and that new evidence can emerge at any time. This was the case with an Amedeo Modigliani painting that came to light several years ago. The work, which was initially rejected by scholars, conservators and scientists, has, after careful scrutiny, ultimately been accepted.
For their part, artists’ foundations and estates, besieged by works for authentication – and the costly and attenuated lawsuits that can follow a disagreeable judgment – have been terminating their authentication function at a steady rate. This disturbing trend is both a symptom and supplement to the current ‘deep freeze in authentication’, a term coined by Jennifer Maloney of the Wall Street Journal in 2014.1 The Pollock-Krasner Authentication Board disbanded in 1996; the Andy Warhol Foundation for the Visual Arts, the Roy Lichtenstein Foundation and the Robert Rauschenberg Foundation announced the dissolution of their authentication boards in 2011; the Keith Haring Foundation and the Noguchi Museum followed suit in 2012.2
Independent experts, too, are understandably reticent to give opinions for fear of being pulled into costly and potentially reputation-damaging lawsuits. Dropping the thermostat even further, many of the art scholars who have the training and expertise necessary to authenticate a work of art are employed by museums or other institutions whose conflict of interest rules restrict them from commenting on the authenticity of privately held works of art.
In an ironic twist, the dissolution of authentication boards of many iconic artists’ estates and foundations has increased in tandem with the market’s dependence on certificates of authenticity. As a consequence of this impasse, many art works which may well be authentic are driven into a state of limbo, rendering them practically untouchable by the market; inversely, forgeries may flow more freely. These developments serve to undermine confidence in that artist’s market, warp the art historical record and make amendments or corrections to the record difficult to accomplish.
The folding of the Pollock-Krasner Authentication Board in 1996 had serious implications for Jackson Pollock’s former mistress Ruth Kligman, who owned what she claims was Pollock’s last painting and had been involved in an exhaustive campaign to have the work authenticated since 1986. Despite being the most scientifically researched painting in recent history – which includes the precedent-setting use of forensic trace analysis and endorsements from the highest levels of the field – the Authentication Board’s closure meant that the painting has never been issued a certificate of authenticity.
The inherent reproducibility of Warhol’s works, coupled with his prolific Factory-style production and enormous market value, has made authenticity battles complex and costly on both sides. In 2007, Joe Simon, a London-based filmmaker, sued the Andy Warhol Foundation for the Visual Arts after the authentication board ruled a silkscreen – featured during the artist’s lifetime on the cover of his catalogue raisonné – to be inauthentic. Citing the $6 million it spent defending the case, the Foundation announced the dissolution of its authentication board in 2011, with the move coming into effect early the following year.3
Due in part to the short life and underground, provisional and ad hoc output of Keith Haring – who was one of the first graffiti artists to become a blue-chip investment – the stamp of authenticity is particularly sought after but also difficult to confer. Both before and after the Haring Foundation ceased its authentication function in 2012, major lawsuits have been brought against it for publicly labelling two large groups of purported Haring works as counterfeit, claiming that the committee had not performed due diligence in their examination.4
A recent bill drafted with the impetus of the Art Law Committee of the New York City Bar Association indicated a promising move towards the protection of art experts and authentication boards from gratuitous or unwarranted litigation. On 15 June 2015, the Senate approved legislation (S1229A) that provides better protection for art authenticators, with the aim of ensuring that only ‘valid, verifiable claims against authenticators are allowed to proceed in civil court’.5 This bill would help deter the common practice of ‘legal cage-rattling’ directed at art experts and connoisseurs and mitigate frivolous and costly lawsuits, allowing authenticators to perform their crucial function more freely. The original bill proposed two years ago would have made a number of changes, including requiring heightened pleading against authenticators, a clear and convincing evidence burden of proof, and a one-way fee shifting attorneys’ fees provision (a successful authenticator could recover their legal costs from the other party, but not the other way round). That bill was opposed by the Trial Lawyers Association. In 2016, a revised bill was introduced that did away with the clear and convincing evidence standard. However, despite a unanimous vote to pass the bill in the Senate, Bill S1229A was blocked in the Assembly, and no action was taken. Those involved with the drafting of the legislation expect it will, in fact, be fully passed when introduced again in 2016. Apparently, certain lawmakers were opposed and prevented it coming to a vote. As some of these lawmakers are no longer in the Assembly, chances for passage in the next session actually look promising.6
The catalogue raisonné is a comprehensive, annotated compilation of all known works by an artist, either in a particular medium or all media. It is a critical tool for researching the provenance and attribution of an art work, and is consulted more and more religiously as a supreme arbiter of a work’s authenticity. However, the apostolic authority of such compendia is being revealed as increasingly vulnerable.
In the first place, the scholarly process is always subject to error and new discoveries are constantly being made; this caveat is often written into the introductions of catalogues raisonnés themselves. In order to arbitrate this contingency, in fact, some artists’ foundations have begun moving their catalogues raisonnés online: the Alexander Calder and Roy Lichtenstein foundations have made this shift, for example, as well as the Noguchi Museum. These online documents are presented as ‘works in progress’, leaving them open to amendments. Questioned works may be added, allowing for further research, but the foundations – through this forum at least – absolve themselves of giving a yes-or-no answer vis-à-vis a work’s authenticity.
Catalogues raisonnés may not be, and should not be assumed to be, an absolute authority for several reasons. As often is the case, the artist’s own life may be cloaked in mystery, or his or her attitudes with respect to authorship were informal. Jean-Baptiste-Camille Corot, for example, was well known for this: in addition to giving away many works without any record or documentation, he frequently left paintings with friends while he was traveling, and sometimes lent them to friends to study or copy; often they were never returned. Later in life, when Corot had achieved a measure of fame, he established an atelier for producing works in order to employ other artists.7 Even under the artist’s purview, therefore, the idea of authorship was rather more fluid.
In addition to this, a painting’s ownership history may be nebulous due to nonstandard record-keeping, the loss or destruction of records during wartime, deliberate mishandling of information, or because the former owners are either unknown due to the ‘private collection’ prerogative, or are simply no longer living.
Moreover, catalogues raisonnés may in fact not be comprehensive due to the procedures of the writer: the highly respected and conservative art historian Ambrogio Ceroni’s 1958 book Amedeo Modigliani, Peintre (last updated 1970), for instance, is widely accepted as the ‘Modigliani bible’. However, it only includes works Ceroni had seen himself, and since he never travelled to the United States, for example, authentic Modigliani works in America were not included.8 Or, as in the case of Gerhard Richter (described below), the artist himself removed works known to be authentic from his own catalogue raisonné.
Art experts frequently differ in opinion, experience and relationship to the artist or heirs, and each may undertake writing their own catalogues raisonnés of the same artist’s work, leading to confusion and dispute over authenticity and even historical fact. Such potential lacunae or lack of consensus concerning an artist in a catalogue raisonné can increase the chance of misattribution and pave the way for forged works to enter the market.
The title of connoisseur is not accorded or regulated by specific programmes of training and accreditation. While a connoisseur of art will often have advanced degrees in art history, the title tends to accrue on an expert over time who has devoted their study to the life, process, techniques and works of a particular artist, such that they might reliably recognise the ‘aesthetic quality’ of that artist’s work. Moreover, art history education has changed dramatically in the past 50 years, owing in large part to an effort to situate the production of art within the wider social and cultural context from which it derives. This wider scope, while essential, has in some ways been detrimental to the close study and attention to the material basis and aesthetic quality of the art works themselves.
Unfortunately, it has also come to light in some instances – such as with the case of Christian Parisot, described below – that certain respected connoisseurs of specific artists have exploited the trust accorded them, and have either acted unethically or even been involved in criminal activity themselves. Ultimately, the problem with relying solely on connoisseurship to authenticate a work is that it is inherently subjective, and expert opinions can be vulnerable to conflicts of interest.
Most examiners of art agree that a ‘three-legged stool’ model is best for determining a work’s authenticity, which includes connoisseurship, the provenance of the work, and scientific testing. A vital aspect of Bill S1229A was the amendment of the definition of ‘Authenticator’, which, alongside the connoisseur, would now include ‘a person or entity recognised in the […] scientific community as having expertise in uncovering facts that serve as a direct basis, in whole or in part, for an opinion as to the authenticity, attribution or authorship of a work of fine art or multiple’.9 This clause would effectively place the scientist and the connoisseur on equal footing as valid authorities concerning the authenticity of a questioned art work.
Technical art history is an emerging discipline at the interface of art history, art conservation, and cultural heritage science. It is rapidly changing our perception of what is knowable about a work of art. New technologies, like multispectral imaging and hyperspectral imaging, allow us to nondestructively examine works of art under every wavelength – from x-rays through to infrared – to see the artists’ underdrawings, any buried works or sketches, and any pentimenti (traces of earlier paintings beneath the top layers).
While individual x-ray and infrared wavelengths have been available to art historians for the technical study of art works for decades, these new technologies allow the work to be probed across the entire electromagnetic spectrum. This has contributed crucial information concerning the attribution and condition of some of the most important works in major museum collections. Increasingly, these technologies are providing data that is highly relevant to authenticity questions, allowing for the identification of features of the work that were literally previously invisible and unknowable. As a result, there is a tremendously important body of new scholarship that must be considered when examining a particular work.
The rapidly developing role of technical art history within the field of art history means that scientific methods of study are becoming increasingly relevant as a means of authentication. While the British Museum in London and the Rathgen Laboratory in Berlin have been carrying out the scientific study of art works to learn about their authenticity and state of preservation since the end of the nineteenth century, for example, the role of science in investigating authenticity in particular has historically been a problematic one. There is a general agreement that the best possible examination of a work of art is by the combined eyes of the connoisseur, the conservator and the scientist. However, the scientist carrying out the research must also be greatly versed in the materials and techniques of the artist in question in order to provide the degree of detail needed to add to an authentication discussion. For example, ancient and historic pigments, alloys and clays are still available today, and so while material identification is critical because it can rule out obviously problematic pieces, finding the correct materials by no means authenticates an object. Instead, it is one critical part of the due diligence that must be performed to address an authenticity question. Understanding how these materials react with their environment over tens, hundreds or thousands of years is a critical step to making science truly relevant to the question at hand. Fortunately, cultural heritage scientists are now deeply immersed in this research, making their findings more relevant to authenticity questions than ever before.
There has also been a revolution in the scientific instrumentation available to the cultural heritage scientist in the last ten years, meaning that the scientific study of works of art can be done either totally nondestructively or in a minimally invasive way. This has led to a greater accessibility of these techniques for the study of cultural heritage than ever before. One specific and well-known example of this is radiocarbon dating. Use of this technique would have been unacceptable to date the Shroud of Turin, for example, when grams of material would have been required. With the advent of accelerator mass spectrometry in the 1980s, suddenly the sample size for the technique was reduced from grams to milligrams, and the work could be carried out without any visible change to the object. Other instrumental analysis techniques that used to take up whole laboratories, such as x-ray fluorescence and Raman spectroscopy, have been refined and condensed to hand-held instruments. They can thus be brought to the object in order to collect data, reducing the need to move valuable objects and the risk of flaking or other damage during transport. Raman spectroscopy in particular has become invaluable in recent times for understanding artists’ pigments and their degradation behaviours, as well as appropriate metal patinas. The rapid evolution of these scientific methods has resulted in more data being published on cultural heritage objects than ever before, effectively creating the databases required by future researchers addressing authenticity questions.
Despite this promising indication for change, scientific examinations are still viewed as costly and/or cost prohibitive and remain outside common practice. Thus the market continues to be vulnerable, as witnessed by some recent scandals affecting consumer confidence.
The infamous Knoedler case (discussed in more detail elsewhere in this volume10), which led to the closure of the veteran Manhattan gallery Knoedler & Co. in 2011, was a chilling event for scholars, dealers and collectors alike. When Long Island art dealer Glafira Rosales pleaded guilty to conspiring to pass off a Queens, New York artist’s paintings as works by modern masters such as Jackson Pollock, Mark Rothko, Willem de Kooning, Franz Kline, Barnett Newman and Clyfford Still, the reputations of those experts who had endorsed the paintings were sullied and at least one has been sued by a collector who bought a fake.11 Related lawsuits are ongoing.
For decades, the self-taught painter Wolfgang Beltracchi had passed off his own paintings as newly discovered masterpieces by Max Ernst, André Derain, Max Pechstein, Georges Braque, Heinrich Campendonk and other Expressionists and Surrealists from the early twentieth century.
The case of Beltracchi is particularly emblematic of the arms race of technique and technology in forgery and its detection. Forgers such as Beltracchi are increasingly savvy about using historically accurate and convincing materials in their forgeries, such as pigments that were available at the time of the painting’s supposed creation, and the artificial ageing of collection labels, frames, nails and colour of the works. While science caught up with him eventually, it is still not known how many works by this talented and prolific forger remain in circulation.12
In September 2014, three men were charged in connection with an international art-forgery ring that attempted to sell, through their own SMZ Gallery, 18 forgeries of paintings by iconic Russian avant-garde artists including Kazimir Malevich, Natalia Goncharova and Aleksandr Rodchenko. According to prosecutors, the sale of 11 counterfeit paintings netted the forgers about $4 million.13
The increasing market value of fine-art photography has spurred a concomitant increase in forgeries. The comparative newness and diminutive size of the photography market – relative to those of painting, sculpture and drawing – provide fewer safeguards traditionally conferred by historical precedents and wide pools of expertise. This terrain is particularly difficult to tread as experts must be able to discern between an original and a reprint, and if the right photographic paper is used the truth can be even more elusive.
This handicap has been exploited in the fraudulent printing of photographs of some of the best-known photographers of the twentieth century, such as Lewis Hine,14 Man Ray and Ansel Adams. As an additional complication, the heirs or estate of an artist may permit production of large numbers of prints that the artist had earlier rejected, with derogatory effects to the integrity of that oeuvre.
Improperly identified or forged works in the marketplace effect a casualty list that extends far beyond the immediate case of a single work. Like the drop of a stone in water, the entire oeuvre of that artist’s work can become a casualty by mere proxy.
Modigliani’s paintings, usually portraits, are in a flat, simple style, making his works a favourite among forgers. Unfortunately, the artist’s short and chaotic life (born 1884, died 1920) left little material for study, resulting in a small pool of experts and a dearth of scholarship on him. These complications, coupled with the market spike for his work following his early death, have contributed to long-standing disputes among experts as to the authenticity of many paintings attributed to the artist. A recent case revealed that pre-eminent Modigliani expert Christian Parisot had been the perpetrator of a colossal fraud dating back decades. This double betrayal – in which the publicly recognised guardian of the artist’s legacy and market is also its criminal element – undermines confidence even more profoundly.
The majority of forged paintings of French landscape and portrait painter Jean-Baptiste-Camille Corot (born 1796, died 1875) were executed between 1870 and 1939. The high number of forged Corot paintings prompted French art historian René Huyghe’s famous quip, ‘Corot painted three thousand canvases, ten thousand of which have been sold in America.’15
Elmyr de Hory, one of the most famous art forgers of the twentieth century, is said to have sold over a thousand forgeries to reputable art galleries all over the world. The effects of his prolific swindle still linger in markets for such iconic painters as Matisse, one of his favourite artists to copy. Matisse’s Odalisque in Red Trousers was famously switched out with a (rather poor) imitation at the Caracas Museum of Contemporary Art in 2000, which went unnoticed for two years. The original was not found until 2012.
Dalí’s original paintings were prolifically reproduced and the prints fraudulently sold as ‘limited editions’ or ‘original’ lithographs and etchings. The series of prosecutions of fine art prints fraud in the 1980s and 1990s left thousands of unhappy collectors stuck with fake Dalí prints and unable to get refunds. Rendered unsellable in the ‘physical’ market, many of these fraudulent works appear in internet sales and on auction sites.
The famous sculpture Walking Man by Alberto Giacometti, the highest-priced sculptor in the world, is accompanied by many, many forgeries. In the spring of 2015, a German criminal ring associated with Giacometti forger Robert Driessen was formally accused of fraudulent production and trade of fake works, after a 2011 raid of a warehouse led to the discovery of over 1,000 bronze Giacometti forgeries.
Destabilising this market further, the Fondation Alberto et Annette Giacometti (Paris, France) has itself been embroiled in long-standing disputes and battles for authority with rival the Alberto Giacometti Foundation (Zurich, Switzerland).
An eclectic trove of ephemera in a small antiques shop in Mexico, purported to have belonged to Frida Kahlo, attracted interest, and then suspicion, in 2009.16 Kahlo experts, as well as the trust that handles Kahlo copyright, have publicly denounced the archive. The provenance is shaky, but the scientific dating of the artefacts corroborates their attested age. In this case, the ‘eye’ of the connoisseur has been confronted by the possibility of unknown aspects of their subject’s life and work. The case remains under investigation by the Mexican government.
German painter Gerhard Richter recently denounced an entire period of his own early work – figurative paintings completed between 1962 and 1968 – and has ordered their exclusion from his catalogue raisonné. While their authenticity is not in question, their omission from the catalogue promises problems for collectors and dealers. The prevalence of forgeries has led interested parties to invest in catalogues raisonnés to secure authentication; consequently, the value of these excluded paintings will inevitably decrease.17
The recent scandal involving Karl Waldmann, a ‘rediscovered’ star of the German Dada movement, is notable for the boldness of the fraud – Waldmann himself is a fabrication of a criminal gang who had reportedly been consigning works to auction houses around Germany for years. In this case, the market’s desire for discovering a ‘lost’ master from a major avant-garde movement undermined due diligence practices of historical research at points of entry into the market, which permitted the unimpeded circulation of these fraudulent works.
The internet has revolutionised communications in the art sector. The growth of companies in the online art space has been one of the most visible and widely discussed trends in the art market over the past decade. Attendant to this, e-commerce of art objects has gained significant momentum, owing to its global reach and the convenience, efficiency and accessibility it confers to both buyers and sellers. In 2014, online sales of art and antiques were conservatively estimated to have reached €3.3 billion, or around 6 per cent of all sales by value. Of these sales, the majority land within the range of $1,000–$50,000.19 This range represents the fastest-growing segment of the market.
Unfortunately, there is a significantly higher risk for fraud in this category. The accessibility and apparently democratic mechanisms of the online art market in fact offer even less transparency for buyers, and suspect sellers can hide in plain view. This segment is especially vulnerable to organised fraud. Forgery factories operate openly and freely and buyers have little recourse when they have been victimised.
Art Fraud Insights LLC, a Washington, D.C.-based firm, has created a proactive anti-fraud initiative in the online marketplace. This system was first created by collecting a large data set of known or suspected faked and forged art works listed in the online marketplace. The data was then used to inform an algorithm that determines the probability that a future auction listing will be fraudulent.
In advance of the data collection, Art Fraud Insights first identified the types of art works that are most vulnerable to fraud, paying attention to particular mediums (paintings, prints and drawings), price points (within the range of $1,000–$5,000) and artists (top-tier artists). Once these segments were identified, a systematic methodology of review was developed.
With a trained team of art historians and art fraud researchers, Art Fraud Insights reviewed tens of thousands of listings over a ten-month period and was able to get a clear sense of the difference between supported authenticity and suspected authenticity. The research team was able to recognise this difference based in part on a dealer or seller’s definition of what constitutes acceptable documentation to support the claim of ‘original’ or ‘authentic’. (Examples of standard types of acceptable documentation include certificates of authenticity issued by the artist’s authentication committee, for example, or records of sale that establish the provenance and history of an art work.) The team then amassed a large database of dubious documentation used by sellers in order to add credibility to an art work and boost buyer confidence.
In addition to COAs (certificates of authenticity) listed from sources that lacked the credentials or authority to issue them, the research team found a vast array of documentation that was ambiguous and confusing to a potential buyer, sometimes verging on the absurd: these included certificates of title, certificates of transfer, certificates of realness, certificates of registration, certificates of autograph verification and e-appraisals, most issued by non-credible third-party organisations for a nominal fee online. It appears that a cottage industry of e-authenticators has sprung up on the Web; these individuals can participate in defrauding others while avoiding criminal liability.
It is nearly impossible to determine the authenticity of an art work from a digital image, but with such a large data set, they were able to quantify the extent of the problem. They deduced that approximately a third of all listings reviewed were intentionally deceptive in nature. Deception is qualified as the use of obviously deceptive language to support the claim of ‘authentic’ or ‘original’, the falsifying of ownership history or provenance, the use of dubious documentation and the inflation of an art work’s relative value, scarcity or investment potential. Many inauthentic works are purchased and re-circulate in the art market for years. Often a work will be submitted to an authentication board or qualified expert for authentication only after it has been purchased – usually as part of estate planning, insurance underwriting or simply the confirmation of an undiscovered treasure. It will then become a ‘hot potato’ that keeps circulating once the truth about it is known. As a result, one bad art work can have many victims.
The research also revealed that upwards of 68 per cent of all online auction listings reviewed contained incorrect or conflicting information, or omitted critical identifying information altogether. Often a work is listed as ‘in the manner of’ to protect the seller in terms of the work’s title, while the body of the listing insinuates authenticity. This misinformation can include misattribution or incorrectly identified periods or movements, mediums and materials. Again, claims to provenance become difficult to ascertain, as there is no standard set or format of required details, and one is instead confronted by an assortment of documentation that is not necessarily meaningful or valid at all.
The goal of this ongoing research is to capture trends in fraudulent online art sales based upon information contained in the listing. These key indicators, combined with the qualitative information construed from the reviewer and advanced image recognition and documentation review, inform a predictive model. This model, which continues to grow and evolve, can then be used to create a baseline against which art works sold online are rated to predict the likelihood of their being suspect.
This growing predictive model could be used to immediately flag listings for removal from the site and/or to alert law enforcement of seller activity. It could serve as a fraud prevention filter for the online marketplace in the near future. This may be the first initiative of its kind, but it is hoped that a culture of creating solutions to online fraud will grow and strengthen. For a proactive anti-fraud initiative to be successful in this online sector, key government stakeholders, law enforcement and representatives from global asset management teams within all of the top online retailers need to be engaged. A reactive case-by-case response from law enforcement agents and academia is no longer effective or practical.
The systemic problems faced today in the art marketplace are outgrowths of an art world and market structure that no longer exist. The complexity of today’s situation requires a combination of innovative technology and data analysis, and cooperation across disciplines and industry leaders. The development of a proactive anti-fraud initiative in the online marketplace represents an important step toward a healthier, more transparent and productive art marketplace.
Colette Loll is the Founder and Director of Art Fraud Insights, LLC, a consultancy dedicated to art fraud-related projects, including prevention initiatives, exhibitions and specialised investigation of art works. She has lectured widely at universities, museums and forensic institutes in the United States and Europe and trains Federal agents in forgery investigations. She designed and implemented an industry-first proactive anti-fraud initiative for the largest online art marketplace, and serves as a thought leader for the i2M Global Center for Innovation, housed at the State University of New York (Albany).