This is not by me

'This is not by me'

The Andy Warhol Art Authentication Board's denied authentication of works that many have
otherwise taken to be by Andy Warhol has been in the news since the winter of 2003 when
the collector Joe Simon first went public on the board's denial of a silkscreen painting that he
had bought for $195,000 as an investment in 1988, within a year of Warhol's death. Since
then there have been numerous reports of disgruntled collectors and dealers who have fallen
foul of the Authentication Board. Joe Simon's painting, like many, appeared to have a well-
established provenance. Warhol had made an acetate of a photographic self-portrait, which
he gave to a friend, Richard Ekstract, to make the silkscreens as decorations for a party
celebrating the premiere of Warhol's first underground video. Ekstract sent the acetate to a
printer. After the party Warhol gave the pictures to Ekstract in gratitude for his having
facilitated both the video production and the party. Ekstract gave some of the limited edition
to partygoers. The Andy Warhol Foundation (established by Warhol through his will)
authenticated Simon's picture, as did Fred Hughes who was the sole executor of Warhol's will
and his former business manager. Recently, Simon proposed to sell his picture for around
£1.4m, and a potential buyer submitted it to the Andy Warhol Authentication Board, Inc.
Information about the operations of the Andy Warhol Art Authentication Board, Inc is hard to
find. It is a limited liability company registered in New York State. Its website is minimal,
merely saying 'a procedure has been established for the authentication of works of art
purportedly by Andy Warhol', that it 'does not offer any appraisal services', gives Claudia
Defendi as the contact name, a Manhattan address and telephone number. Its website
address is through the Andy Warhol Foundation For Visual Arts, Inc:
www.warholfoundation.org/authen.htm. The Warhol Foundation is a separate limited liability
company also registered in New York State, and its website offers the link directly to the Art
Authentication Board - without further explanation of their legal or business relationship.
The Warhol Foundation, not the Art Authentication Board, was established through Warhol's
will and was therefore the legal body specifically trusted and empowered by him to safeguard
and promote his artistic legacy. Indeed, the Warhol Foundation has commissioned and
already published two volumes of Warhol's Catalogue Raisonne (paintings and sculpture from
1961 to 1969), with more volumes in train. Given these uniquely authoritative publications
sponsored by the Warhol Foundation, it is difficult to fathom why it does not itself
authenticate authorship of 'works purportedly by Andy Warhol'. Applicants to the Art
Authentication Board say that it does not certify nor discuss why it denies authentication (to
around one in six submissions). It is widely believed that the board's essential criterion for
authenticating a work is whether it is satisfied that there is good evidence of Warhol having
supervised and overseen its creation. Given the common knowledge and ample documentary
evidence of Warhol's unique and deliberately perverse ways of working – especially during
The Factory years - it might have again been expected that the Warhol Foundation was the
best body to understand such ways of working, to interpret and decide any authentication
issues.
Art historian and friend of Warhol John Richardson owns works given to him directly by
Warhol, but has said that even he would not 'dare submit these things to the board for fear
of being told they're not by Andy', and questions whether it is possible to authenticate
Warhol's output: 'he used to do these silkscreens, and assistants would come in at night and
run off a few copies for themselves. But did they make them any less authentic than the ones
they ran off for Andy during the day?'. For many years Warhol engaged teams of assistants
to execute his ideas. Paul Morrissey, Warhol's former manager of The Factory: There's no
such thing as an authentic Warhol'. Ronnie Cutrone, a Warhol assistant: 'Actually, Andy rarely
got involved. He had an ability to let go and say, "You do it". It was easy to rip off his

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paintings and sign them'. Sam Green, who curated some Warhol shows: 'I would do his
signature. Andy only cared about authorship when it came to selling.'
Warhol actively encouraged such challenges to hitherto traditional approaches to authorship:
'Why don't you ask my assistant Gerard Malanga some questions? He did a lot of my
paintings'; and apropos his 'Flower paintings' 'I decided I won't sign the fake ones that're
turning up all over Europe - the ones that people told us they bought from Gerard. Maybe I
should do new ones and make good on the fakes in Europe. I don't know. I'll see.' On the
back of some of the fakes made of his print portfolios (Marilyn Monroe, 1967 and Flowers,
1970) Warhol endorsed 'This is not by me. Andy Warhol.'
Authorship is important not only for the purposes of art history and criticism, it also has great
economic significance. As Warhol's works continue to circulate throughout the secondary
global art market place, vast sums of money have been and continue to be invested in their
purchase and sale, and the achievement of huge profits (or losses) will largely depend on
buyers' (and/or their agents') satisfaction as to authenticity. The Art Authentication Board
appears already to have established itself with art market professionals as the preferred
authentication authority, not the Warhol Foundation or other independent Warhol experts.
The board requires all applicants submitting works for authentication to sign an undertaking
not to challenge the board's decision in court. The validity of this purported waiver of legal
rights has yet to be legally challenged. The strongest legal contestant would be the
foundation, since it probably owns Warhol's statutory moral rights – both to claim or to
prevent false attribution of his authorship. Under US law these rights last for the same length
as copyright (in Warhol's case probably for decades to come), but only in respect of works in
the artist's ownership at death (and which were presumably inherited from Warhol by the
foundation). In the case of works not owned by Warhol at his death, these rights will have
expired on Warhol's death. This effectively produces a Catch 22 situation: only works
inherited from Warhol by the foundation - and not works that were sold or given away by him
- can be the subject of legal challenge, but only by the foundation; and since the foundation
appears to be acquiescing in (if not tacitly supporting) the authentication decisions of the
separate board, collectors of works during Warhol's lifetime appear to have no legal remedy
under current US law.
UK law is different in two key respects. First, UK artists have the statutory moral right only to
stop their names being falsely attributed to works they did not create; they do not (as in the
US) have the right to claim true attribution of their authorship of works they did create.
Second, the UK right to prevent false attribution lasts for the lifetime of the artist plus 20
years after death; and applies to all the artist's works - whether or not they were in the
artist's ownership at death. In France, statutory moral rights last indefinitely, and this reflects
a radically different philosophy from the US: French law views the integrity of art as a vital
cultural treasure that should be looked after for future generations; US law respects the
integrity of artists, but only during their lifetime, rarely after their death; UK law currently lies
somewhere in between.
© Henry Lydiate 2006