We’ve been following a number of prominent stories for several weeks now and thinking about what they mean in the crossover between art and the law. It’s fair to say that a theme is starting to develop, namely, that after the Beltracchi forgery trial in Cologne, the Warhol Foundation’s decision to close its doors to authentication requests, and the brewing scandal over the authenticity of paintings sold by Knoedler and other galleries, the legal significance of knowing—and even asking—the age-old question from Art History 101—“who made that?”—has come again to the fore.
The Warhol Foundation’s decision was, at least publicly, linked to the concern over disappointed (and litigious) collectors unhappy with the Foundation’s decision about whether a work was by Warhol or not. The Foundation’s continuing work on a catalogue raisonné—the name for a definitive catalogue of everything made by a particular artist—however, simply postponed the question, because once the list is done, those upset that their work is not on it may be similarly motivated.
The Art Law Blog picked up early on the Knoedler developments. One of the most venerable galleries in New York, Knoedler suddenly closed its doors, followed by a massive lawsuit by Pierre Lagrange alleging that the gallery had sold him a forged work supposedly by Jackson Pollock. Other galleries are apparently in the sights of federal authorities as well.
No sooner had this story broken that the new issue of The Art Newspaper arrived, always a highlight of the month. Georgina Adam and Riah Pryor picked up on this theme of authentication, noting a trend of art historians increasingly afraid to express their opinions about authorship for fear of being sued. The article traces perfectly the real concerns that an academic can face when his or her otherwise unassailable scholarship (Francis Bacon and Degas works are cited as key and controversial examples) upsets someone else, either by omission or inclusion, and the cold comfort in being right in litigation that can take years and enormous sums of money.
The article argues that these concerns are greater in the United States, where a plaintiff who loses bears no obligation to pay the winner’s legal fees. This is often seen in Europe as an ineffective deterrent to frivolous cases. This was interesting from this side of the pond, insofar as Americans typically see the U.K. as the epicenter of reputational torts (libel, slander), and under traditional defamation law in the United States, an opinion ordinarily cannot be defamatory. But, as noted above, the article is an excellent one because it gets right the practicalities, where most of us live, and knowing that a defamation case will someday go away is little solace until it does.
It is a sobering issue. Putting together a convincing case for who did or didn’t paint or sculpt a work is a delicate balance of visual, historical, and documentary analysis, and good connoisseurship can be as much of an art as the objects it examines. The labor of love that a catalogue raisonné can encompass requires a noble commitment. Watching it done well never gets old and here’s to hoping it is not chilled.
