An expose on the mysterious Andy Warhol Art Authentication Board, inc. With Andy Warhol, Joe Simon, Alan Yentob, John Richardson, Paul Morrissey, Fred Hughes, Ronnie Cutrone, Chelsea Hotel, Tate Modern
Tuesday 16 October 2007
Andy Warhol Authentication 2 of 7
An expose on the secretive Andy warhol Art Authentication Board Inc. With Andy warhol, Ronnie Cutrone, Sam Green, Marcel Duchamp, Dia Beacon, Ivan Karp, Joe Simon, Paulette Goddard, 5,000 sheet of cow wallpaper
Andy Warhol Authentication 3 of 7
an account on the controversial Andy Warhol Art Authentication Board. With Alan Yentob, Ron Spencer, Joe Simon, Peter falk, David Whitney, Sally King-Nero, Neil Prinz, Richard Dorment, Vincent Fremont, Mick Jagger, Robert Rosenblum, Andy Warhol
Andy Warhol Authentication 4 of 7
a documentary on the secretive Andy Warhol Art Authentication Board Inc. With Andy Warhol, Richard Ekstract, Joe Simon, Paul Morrissey, John Richardson, Sam Green, Vincent Fremont, edie Sedgwick, Peter Stern
Andy Warhol Authentication 5 of 7
A documentary on the secretive Andy Warhol Art Authentication Board. With Andy Warhol, Paul Morrissey, Richard Dorment, John Richardson, Joe Simon, Mick Jagger, Ivan Karp, Ron Spencer, Horst Weber von Beeren
Andy Warhol Authentication 6 of 7
a documentary on the andy warhol art authentication board. with Andy warhol horst weber von beeren, Mick Jagger, Ivan Karp, Paul Morrissey, Joe Simon, Alan Yentob, paloma Picasso
Andy Warhol Authentication 7 of 7
a documentary on the andy warhol art authentication board. with andy warhol, alan yentob, paul morrissey, joe simon
Friday 5 October 2007
Imagine: Andy Warhol Denied/ Telegraph
The controversy surrounding some of Andy Warhol's early works raises fundamental questions about the methods of one of the greatest artists of the last century, says Richard Dorment, who takes part in a BBC investigation to be shown tonight
The single most important thing you can say about a work of art is that it is real, that the artist to whom it is attributed made it. For, until you are certain that a work of art is authentic, it is difficult to say much else that is meaningful about it. Connoisseurship, the separation of the real from the fake, is the cornerstone on which our understanding of any artist's work is based.
That is why Andy Warhol: Denied, which is being shown tonight as part of the BBC's Imagine… series, is worth watching. Although the programme revolves around the authenticity of several of Warhol's early works, what is really being debated is the very nature of Warhol's artistic achievement. I took part in the programme because Warhol was one of the most important artists of the 20th century, and the issues it treats are fundamental to understanding his genius.
Was he a traditional artist whose participation in the creation of a work of art was crucial to its authenticity? Or was he a very different and harder to categorise figure, one who mass-produced his paintings, each one an authentic Warhol, though he himself may never have touched it?
Tonight's programme documents the growing disquiet about the criteria by which the Andy Warhol Art Authentication Board, the committee set up to pronounce on the authenticity of Warhol's work, judge his work. Investigating the methods of attribution used by the board is difficult because it is notorious for its secrecy. No member of the panel would appear on the programme.
Before it will authenticate or reject a work, the board forces owners to sign a document saying that they have no right to challenge its verdict in court. Owners are not told the reason for the board's decision. And the board reserves the right to de-authenticate works it has already authenticated. I am acquainted with the work of several other authentication boards, and none of them operates in this way.
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Although a lawyer for the board says that no one forces applicants to submit a work to them, this does not tell the whole story. In fact, Christie's and Sotheby's will sell only works passed by the board, so any Warhol that has not been before the panel is worthless.
On the programme, we see a number of early paintings the board has declared not to be by Warhol because he did not personally take part in making them. In reply, studio assistants who worked with Warhol say that delegating the manual task of silk-screening an image on to canvas was Warhol's normal working method - indeed, this was the reason he called his place of work "The Factory" and not "The Studio
This way of working has many precedents in the history of art. Many 19th-century sculptors had very little to do with the production of their work, leaving the marble carving, bronze casting, and enlargement or reduction of their models to low-paid employees. So distant were some 19th-century artists from the actual manufacture of their art that production might be carried on after their death. In the Rodin Museum in Philadelphia, for example, every single bronze in the collection is a posthumous cast, and yet each is an authentic Rodin.
Thus, while evidence of the artist's "hand" is suitable for an artist like Renoir, it diminishes a figure as protean in his originality as Warhol.
For example, one of the works the board has denied is a 1964 self-portrait, one of eight made as decorations for a party to celebrate the première of Warhol's first underground videos. Warhol gave the all-important image on acetate which is used in the stencilling process to a publisher named Richard Ekstract, who in turn sent it to a printer in New Jersey for silk-screening.
When the party was over, Warhol gave the self-portraits to Ekstract, who in turn presented most of them to people who had helped with the party. At this date, an original painting by Andy Warhol was not worth very much money, and anyway Warhol is known habitually to have exchanged his paintings for services such as dentist bills and legal fees. He seems to have thought of the gift to Ekstract as payment for the use of the enormously expensive equipment Ekstract had loaned him to make his groundbreaking videos.
Ekstract's story is corroborated by Paul Morrissey, who was Warhol's manager at the time - but the board refuses to talk to him, or, apparently, to take his testimony seriously. But what an opportunity is being lost if art historians don't listen to what people like Morrissey - or Warhol's assistants Gerard Malanga, Billy Name and Ronnie Cutrone - have to say about how he worked. Just think how much the memoirs of those in Picasso's inner circle have added to our knowledge of his life and work.
It is well known that in the 1970s Warhol ran several sweatshops where his paintings were mass-produced without any involvement from him, except for his signature. These the board accepts as authentic. But when did his practice of allowing his silk-screens to be printed off-site begin? Innovation has to start somewhere, and to me the 1964 self-portraits made without Warhol's intervention are critically important transitional works.
One of the most compelling things about the programme tonight is its refusal to oversimplify exceptionally complex issues regarding the way Warhol went about creating his work. Between the two extremes of an outright fake and a painting Warhol either painted himself or personally supervised, there exists a huge middle ground.
In tonight's show, we see paintings that he authorised others to make but he signed, works he made himself but had others sign for him, works he used as barter for goods he needed, and works he gave away to friends and employees. It is precisely this confusing and unprecedented situation that makes Warhol such a fascinating artist. The exclusion of these works from his oeuvre makes it easier to catalogue and sell Warhol's art, but it does nothing to enhance his stature in the history of art.
'Andy Warhol: Denied' is on BBC1 tonight
The single most important thing you can say about a work of art is that it is real, that the artist to whom it is attributed made it. For, until you are certain that a work of art is authentic, it is difficult to say much else that is meaningful about it. Connoisseurship, the separation of the real from the fake, is the cornerstone on which our understanding of any artist's work is based.
That is why Andy Warhol: Denied, which is being shown tonight as part of the BBC's Imagine… series, is worth watching. Although the programme revolves around the authenticity of several of Warhol's early works, what is really being debated is the very nature of Warhol's artistic achievement. I took part in the programme because Warhol was one of the most important artists of the 20th century, and the issues it treats are fundamental to understanding his genius.
Was he a traditional artist whose participation in the creation of a work of art was crucial to its authenticity? Or was he a very different and harder to categorise figure, one who mass-produced his paintings, each one an authentic Warhol, though he himself may never have touched it?
Tonight's programme documents the growing disquiet about the criteria by which the Andy Warhol Art Authentication Board, the committee set up to pronounce on the authenticity of Warhol's work, judge his work. Investigating the methods of attribution used by the board is difficult because it is notorious for its secrecy. No member of the panel would appear on the programme.
Before it will authenticate or reject a work, the board forces owners to sign a document saying that they have no right to challenge its verdict in court. Owners are not told the reason for the board's decision. And the board reserves the right to de-authenticate works it has already authenticated. I am acquainted with the work of several other authentication boards, and none of them operates in this way.
advertisement
Although a lawyer for the board says that no one forces applicants to submit a work to them, this does not tell the whole story. In fact, Christie's and Sotheby's will sell only works passed by the board, so any Warhol that has not been before the panel is worthless.
On the programme, we see a number of early paintings the board has declared not to be by Warhol because he did not personally take part in making them. In reply, studio assistants who worked with Warhol say that delegating the manual task of silk-screening an image on to canvas was Warhol's normal working method - indeed, this was the reason he called his place of work "The Factory" and not "The Studio
This way of working has many precedents in the history of art. Many 19th-century sculptors had very little to do with the production of their work, leaving the marble carving, bronze casting, and enlargement or reduction of their models to low-paid employees. So distant were some 19th-century artists from the actual manufacture of their art that production might be carried on after their death. In the Rodin Museum in Philadelphia, for example, every single bronze in the collection is a posthumous cast, and yet each is an authentic Rodin.
Thus, while evidence of the artist's "hand" is suitable for an artist like Renoir, it diminishes a figure as protean in his originality as Warhol.
For example, one of the works the board has denied is a 1964 self-portrait, one of eight made as decorations for a party to celebrate the première of Warhol's first underground videos. Warhol gave the all-important image on acetate which is used in the stencilling process to a publisher named Richard Ekstract, who in turn sent it to a printer in New Jersey for silk-screening.
When the party was over, Warhol gave the self-portraits to Ekstract, who in turn presented most of them to people who had helped with the party. At this date, an original painting by Andy Warhol was not worth very much money, and anyway Warhol is known habitually to have exchanged his paintings for services such as dentist bills and legal fees. He seems to have thought of the gift to Ekstract as payment for the use of the enormously expensive equipment Ekstract had loaned him to make his groundbreaking videos.
Ekstract's story is corroborated by Paul Morrissey, who was Warhol's manager at the time - but the board refuses to talk to him, or, apparently, to take his testimony seriously. But what an opportunity is being lost if art historians don't listen to what people like Morrissey - or Warhol's assistants Gerard Malanga, Billy Name and Ronnie Cutrone - have to say about how he worked. Just think how much the memoirs of those in Picasso's inner circle have added to our knowledge of his life and work.
It is well known that in the 1970s Warhol ran several sweatshops where his paintings were mass-produced without any involvement from him, except for his signature. These the board accepts as authentic. But when did his practice of allowing his silk-screens to be printed off-site begin? Innovation has to start somewhere, and to me the 1964 self-portraits made without Warhol's intervention are critically important transitional works.
One of the most compelling things about the programme tonight is its refusal to oversimplify exceptionally complex issues regarding the way Warhol went about creating his work. Between the two extremes of an outright fake and a painting Warhol either painted himself or personally supervised, there exists a huge middle ground.
In tonight's show, we see paintings that he authorised others to make but he signed, works he made himself but had others sign for him, works he used as barter for goods he needed, and works he gave away to friends and employees. It is precisely this confusing and unprecedented situation that makes Warhol such a fascinating artist. The exclusion of these works from his oeuvre makes it easier to catalogue and sell Warhol's art, but it does nothing to enhance his stature in the history of art.
'Andy Warhol: Denied' is on BBC1 tonight
New York Sun Oct 5 2007
Is Authentication a Game of Monopoly?
Art Around Town
By KATE TAYLOR_October 5, 2007
http://www.nysun.com/article/64026
Few art historical issues are as contentious, or have as dramatic and immediate effects in the marketplace, as those of attribution and authentication. In fact, lawsuits are so common that many experts require owners to sign a statement promising not to sue before they will even look at a work and offer an opinion.
Among those who require such a signed statement is the Andy Warhol Art Authentication Committee, which was set up in 1995 by the Andy Warhol Foundation for the Visual Arts. Still, that didn't stop Joe Simon-Whelan, a filmmaker who owns a painting that was rejected by the board, from suing the committee, the foundation, Warhol's estate, and the estate's sales agent in the United States District Court Southern District of New York in July. Last month, a decision by the Jean-Michel Basquiat authentication committee triggered another suit, though not against the committee itself. The dealer Tony Shafrazi and his client Guido Orsi sued Christie's, charging the auction house with fraud and false advertising for having in 1990 sold Mr. Shafrazi a painting attributed to Basquiat. Last year, the painting, now owned by Mr. Orsi, was rejected by the authentication committee.
Warhol and Basquiat are among a group of 20th-century artists whose work has recently appreciated dramatically. And one of the peculiarities of authenticating recent works — seized on by numerous plaintiffs — is that the "experts" are often people with a substantial interest in the valuation of the artist's oeuvre, like the artist's primary dealer, his heirs, or a foundation set up to extend his legacy.
In France, the principle of droit moral gives an artist — and his heirs, for 70 years — substantial control over his name and his works, including the right to challenge the authenticity of a work purporting to be his. But in America, no one, technically not even the artist himself, has a legal right to decide whether a work is authentic or not. Instead, the power of an expert or an appointed board of experts follows only from their general credibility and knowledge of the artist's oeuvre.
Mr. Simon-Whelan, in his suit, describes what he alleges is a "20-year scheme of fraud, collusion, and manipulation" to control the market in Warhol's artwork. He argues that the committee maintains a monopoly on the authentication of Warhol works and fraudulently rejects genuine works in order to limit the supply and thereby increase the value of works owned by the foundation. Mr. Simon-Whelan's work, an untitled self-portrait allegedly by Warhol, was, according to his suit, authenticated in the late 1980's — before the authentication board was set up — by both the sales agent for the estate, Vincent Fremont, and the then executor of the estate, Fred Hughes. In 2001, while offering the painting for sale for $2 million, Mr. Simon-Whelan submitted it to the board for authentication. They rejected it, twice — first in 2002, and then, after he re-submitted it with more documentary evidence, in 2003.
The relationship between the Warhol Foundation and the authentication board is complex. A recent article in the New York Times quoted the Warhol Foundation's chief financial officer, K. C. Maurer, as stating that the foundation is wholly separate from the authentication board, but that is not true. One of the board's five members, Sally King-Nero, is also an employee of the foundation. Ms. King-Nero and another board member, Neil Printz, are also co-editors of the catalogue raisonnée of Warhol's paintings and sculptures, which is being sponsored by the foundation. The editing of the catalogue raisonnée in essence constitutes a separate, parallel process of authentication.
imilar structures and authentication processes are in place for other 20th-century artists. The Pollock-Krasner Foundation is, like the Warhol Foundation, a grant-giving institution. From around 1990 until 1996, there was also a Pollock-Krasner Authentication Board, set up by the foundation and responsible for authenticating works by Jackson Pollock and his wife, Lee Krasner.
The Alexander Calder Foundation, run by Calder's grandson, Alexander Rower, also authenticates works for the purpose of inclusion in the catalogue raisonnée. The works are examined by Mr. Rower and a group of five or six others.
There is potential for conflict of interest in all of these situations — although Mr. Rower said in an interview that "no one would ever suggest there was a conflict" if a board made everyone happy, by ruling that every object submitted was real.
Among the striking aspects of Mr. Simon-Whelan's suit is his assertion that the authentication board represents a "monopoly," in violation of New York State's antitrust law.
He is not the first to try such an argument. Last March, a collector from Singapore sued the estate and the daughters of the Indian artist Francis Newton Souza in New York State Supreme Court, for interfering in the collector's attempt to sell several paintings he claims are by Souza at Christie's, Sotheby's, and Bonham's. (One of the daughters contacted each auction house to say she did not believe the paintings were by Souza, and the auction houses withdrew them.) The suit charges the defendants with libel, product disparagement, and unfair competition, among other things, and argues that they are trying to destroy competition in order to increase the value of their own collection of Souza paintings.
In the mid-1990's, two plaintiffs brought antitrust claims against the Pollock-Krasner Foundation and the Pollock-Krasner Authentication Board. Both lost. The first case was dismissed on statute of limitations grounds. In the second, the judge didn't accept that the board was a monopoly.
One basic problem with antitrust claims against an authentication board is this: In what, exactly, does the board have a monopoly? Not in the sale of the artist's work, since it doesn't sell work. Instead, plaintiffs claim that the board maintains a monopoly in the authentication of the artist's work. But, as the lawyer who represents the Warhol Foundation and authentication board, Ronald Spencer, points out in a motion to dismiss, in order to assert a monopolization claim, the plaintiff must be a competitor in the relevant market. Mr. Simon-Whelan, of course, is not a competitor in the authentication market, if such a thing even exists, but a would-be seller of a Warhol work.
Mr. Simon-Whelan's suit also raises the interesting question of what should constitute an authentic work, in the case of an artist who delegated so much to others. Mr. Simon-Whelan says that his painting was one of a series that Warhol, in around 1964, authorized a man named Richard Ekstract to create from an acetate he provided, as payment for some expensive video equipment.
In Mr. Ekstract's own account, which he gave to Vanity Fair in 2003, he said that Warhol delegated more of the work than usual, telling Ekstract to have the printer produce the painting from the silk screen, rather than doing this step himself, as he usually did. But Mr. Ekstract said that Warhol approved the work, and several of Warhol's former employees, dealers, and friends have said that they believe the Ekstract paintings should be considered authentic.
The authentication board apparently disagrees. "To be an authentic anything," Mr. Spencer said, "the artist has to be involved not just in the conception but in the supervision and the execution." He noted that, even assuming Mr. Ekstract's account is true, there is no evidence that Warhol specified how many were to be printed, what colors the image and the backgrounds should be, and what supports should be used.
In 2004, the authentication board sent Mr. Simon-Whelan a letter (included as an exhibit in his suit) enumerating the factors in their rejection of his painting. Comparing his painting and the other Ekstract paintings with 11 1964 self-portraits in the catalogue raisonnée, the board noted that the authenticated works are all slightly different, while the Ekstract paintings are all identical. The background in the former group is painted by hand, while in the latter group it is printed. The former group are all on linen, while the latter are all on cotton. Etc.
One outstanding question is what role, if any, Mr. Simon-Whelan's signed promise not to sue will play. The suit invokes the submission agreement as further proof of conspiracy, but in fact, such an agreement is quite common. And in one case against the Pollock-Krasner Authentication Board, a judge ruled that the agreement was enforceable, and besides throwing the suit out, required the plaintiff to pay damages, including the defense's legal costs.
The repeated attempts to charge authentication boards with monopolization reflects, not the logic of the claim (because there isn't any), but plaintiffs' feeling that such boards can wields an inappropriate, and perhaps arbitrary, power over the market in an artist's work. Mr. Simon-Whelan's complaint asserts that the Warhol Art Authentication Board plays favorites in its decisions, tending to validate works submitted by dealers who are on good terms with the foundation and Mr. Fremont.
Conversely, it argues, dealers and auction houses are reluctant to oppose the authentication board or the foundation, because they want to win to the right to do Warhol shows, or to secure commissions. Coincidentally or not, several museum curators declined to be interviewed for this article.
Art Around Town
By KATE TAYLOR_October 5, 2007
http://www.nysun.com/article/64026
Few art historical issues are as contentious, or have as dramatic and immediate effects in the marketplace, as those of attribution and authentication. In fact, lawsuits are so common that many experts require owners to sign a statement promising not to sue before they will even look at a work and offer an opinion.
Among those who require such a signed statement is the Andy Warhol Art Authentication Committee, which was set up in 1995 by the Andy Warhol Foundation for the Visual Arts. Still, that didn't stop Joe Simon-Whelan, a filmmaker who owns a painting that was rejected by the board, from suing the committee, the foundation, Warhol's estate, and the estate's sales agent in the United States District Court Southern District of New York in July. Last month, a decision by the Jean-Michel Basquiat authentication committee triggered another suit, though not against the committee itself. The dealer Tony Shafrazi and his client Guido Orsi sued Christie's, charging the auction house with fraud and false advertising for having in 1990 sold Mr. Shafrazi a painting attributed to Basquiat. Last year, the painting, now owned by Mr. Orsi, was rejected by the authentication committee.
Warhol and Basquiat are among a group of 20th-century artists whose work has recently appreciated dramatically. And one of the peculiarities of authenticating recent works — seized on by numerous plaintiffs — is that the "experts" are often people with a substantial interest in the valuation of the artist's oeuvre, like the artist's primary dealer, his heirs, or a foundation set up to extend his legacy.
In France, the principle of droit moral gives an artist — and his heirs, for 70 years — substantial control over his name and his works, including the right to challenge the authenticity of a work purporting to be his. But in America, no one, technically not even the artist himself, has a legal right to decide whether a work is authentic or not. Instead, the power of an expert or an appointed board of experts follows only from their general credibility and knowledge of the artist's oeuvre.
Mr. Simon-Whelan, in his suit, describes what he alleges is a "20-year scheme of fraud, collusion, and manipulation" to control the market in Warhol's artwork. He argues that the committee maintains a monopoly on the authentication of Warhol works and fraudulently rejects genuine works in order to limit the supply and thereby increase the value of works owned by the foundation. Mr. Simon-Whelan's work, an untitled self-portrait allegedly by Warhol, was, according to his suit, authenticated in the late 1980's — before the authentication board was set up — by both the sales agent for the estate, Vincent Fremont, and the then executor of the estate, Fred Hughes. In 2001, while offering the painting for sale for $2 million, Mr. Simon-Whelan submitted it to the board for authentication. They rejected it, twice — first in 2002, and then, after he re-submitted it with more documentary evidence, in 2003.
The relationship between the Warhol Foundation and the authentication board is complex. A recent article in the New York Times quoted the Warhol Foundation's chief financial officer, K. C. Maurer, as stating that the foundation is wholly separate from the authentication board, but that is not true. One of the board's five members, Sally King-Nero, is also an employee of the foundation. Ms. King-Nero and another board member, Neil Printz, are also co-editors of the catalogue raisonnée of Warhol's paintings and sculptures, which is being sponsored by the foundation. The editing of the catalogue raisonnée in essence constitutes a separate, parallel process of authentication.
imilar structures and authentication processes are in place for other 20th-century artists. The Pollock-Krasner Foundation is, like the Warhol Foundation, a grant-giving institution. From around 1990 until 1996, there was also a Pollock-Krasner Authentication Board, set up by the foundation and responsible for authenticating works by Jackson Pollock and his wife, Lee Krasner.
The Alexander Calder Foundation, run by Calder's grandson, Alexander Rower, also authenticates works for the purpose of inclusion in the catalogue raisonnée. The works are examined by Mr. Rower and a group of five or six others.
There is potential for conflict of interest in all of these situations — although Mr. Rower said in an interview that "no one would ever suggest there was a conflict" if a board made everyone happy, by ruling that every object submitted was real.
Among the striking aspects of Mr. Simon-Whelan's suit is his assertion that the authentication board represents a "monopoly," in violation of New York State's antitrust law.
He is not the first to try such an argument. Last March, a collector from Singapore sued the estate and the daughters of the Indian artist Francis Newton Souza in New York State Supreme Court, for interfering in the collector's attempt to sell several paintings he claims are by Souza at Christie's, Sotheby's, and Bonham's. (One of the daughters contacted each auction house to say she did not believe the paintings were by Souza, and the auction houses withdrew them.) The suit charges the defendants with libel, product disparagement, and unfair competition, among other things, and argues that they are trying to destroy competition in order to increase the value of their own collection of Souza paintings.
In the mid-1990's, two plaintiffs brought antitrust claims against the Pollock-Krasner Foundation and the Pollock-Krasner Authentication Board. Both lost. The first case was dismissed on statute of limitations grounds. In the second, the judge didn't accept that the board was a monopoly.
One basic problem with antitrust claims against an authentication board is this: In what, exactly, does the board have a monopoly? Not in the sale of the artist's work, since it doesn't sell work. Instead, plaintiffs claim that the board maintains a monopoly in the authentication of the artist's work. But, as the lawyer who represents the Warhol Foundation and authentication board, Ronald Spencer, points out in a motion to dismiss, in order to assert a monopolization claim, the plaintiff must be a competitor in the relevant market. Mr. Simon-Whelan, of course, is not a competitor in the authentication market, if such a thing even exists, but a would-be seller of a Warhol work.
Mr. Simon-Whelan's suit also raises the interesting question of what should constitute an authentic work, in the case of an artist who delegated so much to others. Mr. Simon-Whelan says that his painting was one of a series that Warhol, in around 1964, authorized a man named Richard Ekstract to create from an acetate he provided, as payment for some expensive video equipment.
In Mr. Ekstract's own account, which he gave to Vanity Fair in 2003, he said that Warhol delegated more of the work than usual, telling Ekstract to have the printer produce the painting from the silk screen, rather than doing this step himself, as he usually did. But Mr. Ekstract said that Warhol approved the work, and several of Warhol's former employees, dealers, and friends have said that they believe the Ekstract paintings should be considered authentic.
The authentication board apparently disagrees. "To be an authentic anything," Mr. Spencer said, "the artist has to be involved not just in the conception but in the supervision and the execution." He noted that, even assuming Mr. Ekstract's account is true, there is no evidence that Warhol specified how many were to be printed, what colors the image and the backgrounds should be, and what supports should be used.
In 2004, the authentication board sent Mr. Simon-Whelan a letter (included as an exhibit in his suit) enumerating the factors in their rejection of his painting. Comparing his painting and the other Ekstract paintings with 11 1964 self-portraits in the catalogue raisonnée, the board noted that the authenticated works are all slightly different, while the Ekstract paintings are all identical. The background in the former group is painted by hand, while in the latter group it is printed. The former group are all on linen, while the latter are all on cotton. Etc.
One outstanding question is what role, if any, Mr. Simon-Whelan's signed promise not to sue will play. The suit invokes the submission agreement as further proof of conspiracy, but in fact, such an agreement is quite common. And in one case against the Pollock-Krasner Authentication Board, a judge ruled that the agreement was enforceable, and besides throwing the suit out, required the plaintiff to pay damages, including the defense's legal costs.
The repeated attempts to charge authentication boards with monopolization reflects, not the logic of the claim (because there isn't any), but plaintiffs' feeling that such boards can wields an inappropriate, and perhaps arbitrary, power over the market in an artist's work. Mr. Simon-Whelan's complaint asserts that the Warhol Art Authentication Board plays favorites in its decisions, tending to validate works submitted by dealers who are on good terms with the foundation and Mr. Fremont.
Conversely, it argues, dealers and auction houses are reluctant to oppose the authentication board or the foundation, because they want to win to the right to do Warhol shows, or to secure commissions. Coincidentally or not, several museum curators declined to be interviewed for this article.
Tuesday 2 October 2007
Warhol by John Richardson and Sam Green
Art historian John Richardson and Warhol curator Sam Green discuss Andy Warhol
Art historians appointed to help judge Warhol attributions artnewspaper
From News:
Art historians appointed to help judge Warhol attributions
By Jason Edward Kaufman | Posted
Andy Warhol’s self-portrait: many of his works defy easy authentication
NEW YORK. The Andy Warhol Foundation for the Visual Arts has appointed art historians Judith Goldman and Trevor Fairbrother to the Warhol Authentication Board, in succession to David Whitney who died earlier this year. Foundation president Joel Wachs told The Art Newspaper he made the appointments based on the recommendations of the existing board members—Neil Prinz, Sally King-Nero, and Robert Rosenblum—who suggested including a fifth person.
The Authentication Board was established by the foundation in 1995 to judge the authenticity of Warhol-related works submitted for its review, a function formerly performed by the Estate of Andy Warhol. The committee meets periodically to review submissions, with members receiving $500 per meeting. The next session is scheduled for 10 February 2006, says Mr Wachs.
Instead of candidates such as Warhol Museum director Thomas Sokolowski and Whitney curator Donna de Salvo, both of whom have direct experience of assembling exhibitions of Warhol’s work, the foundation has opted for two former curators. Ms Goldman was curator of prints at the Whitney Museum from 1976 to 1991, and Mr Fairbrother was curator at the Museum of Fine Arts, Boston (MFA) from 1983 to 1996, and curator of modern art at the Seattle Art Museum from 1996 to 2001. It remains to be seen if their backgrounds will help the controversy that surrounds the Authentication Board.
Ms Goldman’s expertise in prints and Pop Art should be an asset in dealing with the prickly issues related to Warhol graphics. She has contributed catalogue texts for Warhol exhibitions such as “The Warhol look: glamour, style, fashion” at the Warhol Museum and the Whitney in 1997, and others for recent shows at Paul Kasmin and Gagosian Gallery in New York.
Mr Fairbrother, though best known for his work on John Singer Sargent, organised “Beuys and Warhol” for the MFA Boston 14 years ago. He also published an interview with Warhol in Arts Magazine in 1987, an essay about Warhol’s early career in the catalogue of a 1989 show at Grey Art Gallery, and, most relevant to matters of connoisseurship, wrote “Form and ideology: Warhol’s techniques from blotted line to film” for the Dia’s 1989 “Discussions in contemporary culture #3: the work of Andy Warhol”. No member of the board was willing to comment on the issues facing the board.
Since 2003, the board has been under fire from owners of rejected works and members of the artist’s circle who claim their knowledge of Warhol’s practice is ignored. The board has routinely denied the authenticity of silkscreens made without Warhol’s direct supervision, but his former associates argue that to reject such works contradicts Warhol’s practice of having works of art printed without his direct oversight. Scholars point out that it was precisely Warhol’s blurring of authorship and his adoption of modes of mass production that mark his significance in the history of art. There is growing consensus in the field that, rather than exclude such works from the catalogue raisonné being compiled by the foundation, they should be included, allowing the market to decide their value.
“It is just bad art history and folly not to draw on the contemporaries who actually knew the artist,” says art critic Richard Dorment of the Daily Telegraph in London, a commentator in a BBC documentary on the controversy, scheduled to air in late January. “They are saying he worked like an Old Master and that his touch was very important,” says Mr Dorment, “but he is a conceptual artist, the main descendant of Duchamp”.
There also have been unsubstantiated allegations of conflicts of interest in an authentication board funded by the Warhol Foundation, which is also custodian of a large body of Warhol’s work that it offers for sale. Critics also condemn the board’s refusal to disclose the reasons that lead to rejection of a work. The board claims that to do so would provide a road map for forgers, but this has frustrated owners of rejected works who must abide by another of the board’s policies that requires owners to sign a waiver of their right to challenge rejections in court.
The board’s legal counsel Ronald Spencer says the board is not considering altering any of its policies, and that no lawsuits are pending or threatened.
Art historians appointed to help judge Warhol attributions
By Jason Edward Kaufman | Posted
Andy Warhol’s self-portrait: many of his works defy easy authentication
NEW YORK. The Andy Warhol Foundation for the Visual Arts has appointed art historians Judith Goldman and Trevor Fairbrother to the Warhol Authentication Board, in succession to David Whitney who died earlier this year. Foundation president Joel Wachs told The Art Newspaper he made the appointments based on the recommendations of the existing board members—Neil Prinz, Sally King-Nero, and Robert Rosenblum—who suggested including a fifth person.
The Authentication Board was established by the foundation in 1995 to judge the authenticity of Warhol-related works submitted for its review, a function formerly performed by the Estate of Andy Warhol. The committee meets periodically to review submissions, with members receiving $500 per meeting. The next session is scheduled for 10 February 2006, says Mr Wachs.
Instead of candidates such as Warhol Museum director Thomas Sokolowski and Whitney curator Donna de Salvo, both of whom have direct experience of assembling exhibitions of Warhol’s work, the foundation has opted for two former curators. Ms Goldman was curator of prints at the Whitney Museum from 1976 to 1991, and Mr Fairbrother was curator at the Museum of Fine Arts, Boston (MFA) from 1983 to 1996, and curator of modern art at the Seattle Art Museum from 1996 to 2001. It remains to be seen if their backgrounds will help the controversy that surrounds the Authentication Board.
Ms Goldman’s expertise in prints and Pop Art should be an asset in dealing with the prickly issues related to Warhol graphics. She has contributed catalogue texts for Warhol exhibitions such as “The Warhol look: glamour, style, fashion” at the Warhol Museum and the Whitney in 1997, and others for recent shows at Paul Kasmin and Gagosian Gallery in New York.
Mr Fairbrother, though best known for his work on John Singer Sargent, organised “Beuys and Warhol” for the MFA Boston 14 years ago. He also published an interview with Warhol in Arts Magazine in 1987, an essay about Warhol’s early career in the catalogue of a 1989 show at Grey Art Gallery, and, most relevant to matters of connoisseurship, wrote “Form and ideology: Warhol’s techniques from blotted line to film” for the Dia’s 1989 “Discussions in contemporary culture #3: the work of Andy Warhol”. No member of the board was willing to comment on the issues facing the board.
Since 2003, the board has been under fire from owners of rejected works and members of the artist’s circle who claim their knowledge of Warhol’s practice is ignored. The board has routinely denied the authenticity of silkscreens made without Warhol’s direct supervision, but his former associates argue that to reject such works contradicts Warhol’s practice of having works of art printed without his direct oversight. Scholars point out that it was precisely Warhol’s blurring of authorship and his adoption of modes of mass production that mark his significance in the history of art. There is growing consensus in the field that, rather than exclude such works from the catalogue raisonné being compiled by the foundation, they should be included, allowing the market to decide their value.
“It is just bad art history and folly not to draw on the contemporaries who actually knew the artist,” says art critic Richard Dorment of the Daily Telegraph in London, a commentator in a BBC documentary on the controversy, scheduled to air in late January. “They are saying he worked like an Old Master and that his touch was very important,” says Mr Dorment, “but he is a conceptual artist, the main descendant of Duchamp”.
There also have been unsubstantiated allegations of conflicts of interest in an authentication board funded by the Warhol Foundation, which is also custodian of a large body of Warhol’s work that it offers for sale. Critics also condemn the board’s refusal to disclose the reasons that lead to rejection of a work. The board claims that to do so would provide a road map for forgers, but this has frustrated owners of rejected works who must abide by another of the board’s policies that requires owners to sign a waiver of their right to challenge rejections in court.
The board’s legal counsel Ronald Spencer says the board is not considering altering any of its policies, and that no lawsuits are pending or threatened.
International Herald Tribune July 16, 2007
Art owner alleges Andy Warhol estate conspiracy to control art market
The Associated Press
Monday, July 16, 2007
NEW YORK: The owner of a silkscreen self-portrait of Andy Warhol sued the late artist's estate on Monday, saying it conspired for 20 years to control the market for Warhol's work with authority to stamp "DENIED" on any work it claimed was fake.
In a $20 million (€14.51 million) lawsuit in U.S. District Court in Manhattan, Joe Simon-Whelan said the Andy Warhol Foundation for the Visual Arts Inc. and the Andy Warhol Art Authentication Board force owners of each Warhol work to sign contracts giving them a "perpetual veto right over its authenticity."
He accused them of engaging in a two-decade scheme of fraud, collusion and manipulation that caused them to twice deny the authenticity of his 24-by-20-inch (61-by-51-centimeter) silkscreen even though it had been authenticated multiple times before by the estate or its related entities.
As a result, anyone who buys a Warhol painting that has been authenticated by the board risks having the authenticity revoked at any time, says the lawsuit, which seeks at least $20 million (€14.51 million) in damages and class action status.
Simon-Whelan, a U.S. film writer and producer who lives in London, accused the foundation and the board of providing "a facade of corporate credibility obscuring a deeply corrupt enterprise that enables defendants to benefit from Warhol's art and reputation."
He said they had adopted a policy of rejecting as many works as possible to induce artificial scarcity in the market for Warhol's creations.
The foundation's chief financial officer, K.C. Maurer, said Monday she had not seen the lawsuit and couldn't comment. A telephone message left with the authentication board was not immediately returned.
Simon-Whelan said he bought the silkscreen, called "Double Denied" in his court papers, for $195,000 (€141,500) in 1989, two years after Warhol died.
The work was one of several created in 1964 at Warhol's direction from an acetate personally created and chosen by him, the lawsuit said. It was going to be sold in December 2001 for $2 million (€1.45 million) until the authentication board without explanation stamped "DENIED" on the back of it in red ink, which bled through to the front, according to the lawsuit.
Simon-Whelan submitted it a second time in 2003 only to get rejected again, the lawsuit said.
The lawsuit said "Double Denied" is one of a small series of paintings created by Warhol so he could exchange them for rare and expensive video cameras, video recorders and other equipment that could be used in his filmmaking.
The Associated Press
Monday, July 16, 2007
NEW YORK: The owner of a silkscreen self-portrait of Andy Warhol sued the late artist's estate on Monday, saying it conspired for 20 years to control the market for Warhol's work with authority to stamp "DENIED" on any work it claimed was fake.
In a $20 million (€14.51 million) lawsuit in U.S. District Court in Manhattan, Joe Simon-Whelan said the Andy Warhol Foundation for the Visual Arts Inc. and the Andy Warhol Art Authentication Board force owners of each Warhol work to sign contracts giving them a "perpetual veto right over its authenticity."
He accused them of engaging in a two-decade scheme of fraud, collusion and manipulation that caused them to twice deny the authenticity of his 24-by-20-inch (61-by-51-centimeter) silkscreen even though it had been authenticated multiple times before by the estate or its related entities.
As a result, anyone who buys a Warhol painting that has been authenticated by the board risks having the authenticity revoked at any time, says the lawsuit, which seeks at least $20 million (€14.51 million) in damages and class action status.
Simon-Whelan, a U.S. film writer and producer who lives in London, accused the foundation and the board of providing "a facade of corporate credibility obscuring a deeply corrupt enterprise that enables defendants to benefit from Warhol's art and reputation."
He said they had adopted a policy of rejecting as many works as possible to induce artificial scarcity in the market for Warhol's creations.
The foundation's chief financial officer, K.C. Maurer, said Monday she had not seen the lawsuit and couldn't comment. A telephone message left with the authentication board was not immediately returned.
Simon-Whelan said he bought the silkscreen, called "Double Denied" in his court papers, for $195,000 (€141,500) in 1989, two years after Warhol died.
The work was one of several created in 1964 at Warhol's direction from an acetate personally created and chosen by him, the lawsuit said. It was going to be sold in December 2001 for $2 million (€1.45 million) until the authentication board without explanation stamped "DENIED" on the back of it in red ink, which bled through to the front, according to the lawsuit.
Simon-Whelan submitted it a second time in 2003 only to get rejected again, the lawsuit said.
The lawsuit said "Double Denied" is one of a small series of paintings created by Warhol so he could exchange them for rare and expensive video cameras, video recorders and other equipment that could be used in his filmmaking.
Time Magazine July 18 2007
Make It Real (Or Just Forget About It)
We're having a big week in the art attribution field. First there was the Italian conservator who decided that a canvas she's been examining, and which has long been considered a copy of a Caravaggio, is the real thing.
Then there was the mysterious canvas sold at auction last week in Leicestershire, England. At the time it was represented as an 18th century portrait of a man by an anonymous artist and offered at the anybody-can-afford-this estimate of $300 to $400. The auctioneers should have known something was different about this lot when inexplicably fierce bidding pushed the final price to $410,000, a sum that reportedly left the astonished seller very happy. But maybe not for long. This week the British papers report that the canvas may actually be a Titian, something those competing bidders obviously knew. Possible market value: $10 million.
Portrait of a Man (detail), Attribution pending
But the best story comes out of the U.S., where a London-based film maker has filed suit in a New York court against the Andy Warhol Foundation for the Visual Arts. That's the organization that, among other things, directs people who think they own a Warhol to the Andy Warhol Art Authentication Board, which in turn examines would be Warhols to determine whether they're "real" Warhols, the kind you can sell for real Warhol prices. The film maker, Joe Simon-Whelan, has been at war with the Board for years after they twice rejected a purported 1964 Warhol self-portrait that Simon-Whelan bought in 1989 for $195,000.
Simon-Whelan accuses the Board of acting fraudulently to keep the pool of authenticated Warhols artificially small, which would keep prices high for the recognized Warhols, many of which the Foundation owns and sometimes sells. Well, keeping the pool of an artist's work smaller than it might otherwise be is the inevitable byproduct of any authentication board's work. There are a lot fewer acknowledged Rembrandts in the world today then there were before the Rembrandt Research Project started combing through his output 39 years ago.
So the main hurdle for Simon-Whelan will be to prove that the Board has acted "fraudulently." At the very least, if the court decides that his claim has enough substance to bring the suit to trial, it will be interesting to learn more about just how the Board authenticates work by an artist whose whole philosophy revolved around mass production of imagery and the elimination of the artist's unique touch. Is a Warhol silk screen less authentic if he went to the bathroom and left Gerard Malanga to pull the page? What if he didn't even show up at the Factory that day? As Andy himself once said: "If someone faked my art, I couldn't identify it."
I can't wait til they form The Damien Hirst Authentication Board. by Richard Lacayo
We're having a big week in the art attribution field. First there was the Italian conservator who decided that a canvas she's been examining, and which has long been considered a copy of a Caravaggio, is the real thing.
Then there was the mysterious canvas sold at auction last week in Leicestershire, England. At the time it was represented as an 18th century portrait of a man by an anonymous artist and offered at the anybody-can-afford-this estimate of $300 to $400. The auctioneers should have known something was different about this lot when inexplicably fierce bidding pushed the final price to $410,000, a sum that reportedly left the astonished seller very happy. But maybe not for long. This week the British papers report that the canvas may actually be a Titian, something those competing bidders obviously knew. Possible market value: $10 million.
Portrait of a Man (detail), Attribution pending
But the best story comes out of the U.S., where a London-based film maker has filed suit in a New York court against the Andy Warhol Foundation for the Visual Arts. That's the organization that, among other things, directs people who think they own a Warhol to the Andy Warhol Art Authentication Board, which in turn examines would be Warhols to determine whether they're "real" Warhols, the kind you can sell for real Warhol prices. The film maker, Joe Simon-Whelan, has been at war with the Board for years after they twice rejected a purported 1964 Warhol self-portrait that Simon-Whelan bought in 1989 for $195,000.
Simon-Whelan accuses the Board of acting fraudulently to keep the pool of authenticated Warhols artificially small, which would keep prices high for the recognized Warhols, many of which the Foundation owns and sometimes sells. Well, keeping the pool of an artist's work smaller than it might otherwise be is the inevitable byproduct of any authentication board's work. There are a lot fewer acknowledged Rembrandts in the world today then there were before the Rembrandt Research Project started combing through his output 39 years ago.
So the main hurdle for Simon-Whelan will be to prove that the Board has acted "fraudulently." At the very least, if the court decides that his claim has enough substance to bring the suit to trial, it will be interesting to learn more about just how the Board authenticates work by an artist whose whole philosophy revolved around mass production of imagery and the elimination of the artist's unique touch. Is a Warhol silk screen less authentic if he went to the bathroom and left Gerard Malanga to pull the page? What if he didn't even show up at the Factory that day? As Andy himself once said: "If someone faked my art, I couldn't identify it."
I can't wait til they form The Damien Hirst Authentication Board. by Richard Lacayo
artnet
Art Market Guide
by Richard Polsky
As most art world aficionados now know, the November issue of Vanity Fair features a major article, by Michael Shnayerson, on the Andy Warhol Art Authentication Board. The gist of the article is about the committee's all-powerful yet mysterious ways. Basically, there has been talk of inconsistency when it comes to whose Warhols get the seal of approval and whose don't. A similar version of this story is also a page-one topic of the Art Newspaper, published in England. Without recounting each piece, the articles have received so much attention that they are worth commenting on.
Late last year, I received a phone call from London from a friendly gentleman who identified himself as Joe Simon. He then shared his reason for calling. Apparently, I was included in the provenance of a Warhol painting that he now owned but couldn't sell because it had been declared a fake! This is the one phone call that every art dealer dreads. No matter how honest you are, or how perfectly you construct a deal, if you do this long enough (I'm entering my 25th year in the industry), something's bound to go wrong eventually.
After a mild rush of panic, I was relieved to hear Simon explain that he wasn't coming after me. He merely wanted my help with any information that I had about the painting. The work in question was a red Warhol Self-Portrait from 1964 -- the same pose that appeared on the U.S. postage stamp honoring Warhol. Back in the late 1980s, I had brokered the red Self-Portrait from a Los Angeles dealer to a New York dealer, who in turn sold it to Joe Simon for approximately $195,000. According to my memory of the painting, although it was unsigned, it did bear a stamp of authenticity from Fred Hughes, Warhol's business manager. The picture also came with all of the necessary paperwork.
Over time, the Self-Portrait appreciated tremendously. During the Warhol boom of the last few years, Simon was offered $2 million for it. He agreed to the deal, pending one condition -- the buyer wanted to submit the painting to the Warhol authentication board for its seal of approval. To everyone's surprise, despite all of the stamps on the back of the painting and proper paperwork, the board turned the work down. As you can imagine, Simon was livid -- and out $2 million.
He decided to take action. Apparently, he had enough media connections to convince Vanity Fair to do an article on his experience. If you read the article, you get an inkling of why his Warhol was turned down. Still, given the conceptual framework behind how Warhol made pictures, it seems pretty obvious that Simon's painting should have been judged authentic.
I then began to think about what constitutes an authentic work of art. There's a classic story about how Willem de Kooning, when he was living in the Hamptons, once painted an outhouse toilet seat. It was essentially a wooden bench with three holes in it. Some enterprising soul got a hold of it and tried to sell it as a genuine de Kooning. However, even though de Kooning decorated it, he didn't actually consider the toilet seat a work of art. It all comes down to the artist's intent.
When it comes to Andy Warhol, you can imagine all of the cardboard Brillo boxes, Campbell's soup cans and posters that he signed during his career. Are these works of art? Of course not. They are items of memorabilia. Now, can you imagine all of the above items that have made their way to the Warhol authentication board? It must be an extraordinary number and a tremendous waste of time for the board.
While I can easily side with Joe Simon, as well as the legendary Ivan Karp, who also had a painting rejected, I can also appreciate what the board must go through. I am of the feeling that despite cries of favoritism as to whose Warhols pass muster, the board basically seems to be doing a good job. It was set up to protect the value and integrity of those works which are undoubtedly real. As someone who has seen and dealt a lot of Warhols, I can only recall seeing a couple of fakes -- and they were so blatant that you didn't need the board to tell you so.
It is my hope that in the future the board will give Warhol paintings like the one owned by Simon the benefit of the doubt while coming down hard on those works which are obviously fraudulent. Once again, given Warhol's philosophy of wanting to be a "machine," any work of art that he made or authorized should be considered real -- as long as it was intended to be a work of art. It's simply a matter of common sense.
RICHARD POLSKY is the author of the newly released book, I Bought Andy Warhol (Abrams).
by Richard Polsky
As most art world aficionados now know, the November issue of Vanity Fair features a major article, by Michael Shnayerson, on the Andy Warhol Art Authentication Board. The gist of the article is about the committee's all-powerful yet mysterious ways. Basically, there has been talk of inconsistency when it comes to whose Warhols get the seal of approval and whose don't. A similar version of this story is also a page-one topic of the Art Newspaper, published in England. Without recounting each piece, the articles have received so much attention that they are worth commenting on.
Late last year, I received a phone call from London from a friendly gentleman who identified himself as Joe Simon. He then shared his reason for calling. Apparently, I was included in the provenance of a Warhol painting that he now owned but couldn't sell because it had been declared a fake! This is the one phone call that every art dealer dreads. No matter how honest you are, or how perfectly you construct a deal, if you do this long enough (I'm entering my 25th year in the industry), something's bound to go wrong eventually.
After a mild rush of panic, I was relieved to hear Simon explain that he wasn't coming after me. He merely wanted my help with any information that I had about the painting. The work in question was a red Warhol Self-Portrait from 1964 -- the same pose that appeared on the U.S. postage stamp honoring Warhol. Back in the late 1980s, I had brokered the red Self-Portrait from a Los Angeles dealer to a New York dealer, who in turn sold it to Joe Simon for approximately $195,000. According to my memory of the painting, although it was unsigned, it did bear a stamp of authenticity from Fred Hughes, Warhol's business manager. The picture also came with all of the necessary paperwork.
Over time, the Self-Portrait appreciated tremendously. During the Warhol boom of the last few years, Simon was offered $2 million for it. He agreed to the deal, pending one condition -- the buyer wanted to submit the painting to the Warhol authentication board for its seal of approval. To everyone's surprise, despite all of the stamps on the back of the painting and proper paperwork, the board turned the work down. As you can imagine, Simon was livid -- and out $2 million.
He decided to take action. Apparently, he had enough media connections to convince Vanity Fair to do an article on his experience. If you read the article, you get an inkling of why his Warhol was turned down. Still, given the conceptual framework behind how Warhol made pictures, it seems pretty obvious that Simon's painting should have been judged authentic.
I then began to think about what constitutes an authentic work of art. There's a classic story about how Willem de Kooning, when he was living in the Hamptons, once painted an outhouse toilet seat. It was essentially a wooden bench with three holes in it. Some enterprising soul got a hold of it and tried to sell it as a genuine de Kooning. However, even though de Kooning decorated it, he didn't actually consider the toilet seat a work of art. It all comes down to the artist's intent.
When it comes to Andy Warhol, you can imagine all of the cardboard Brillo boxes, Campbell's soup cans and posters that he signed during his career. Are these works of art? Of course not. They are items of memorabilia. Now, can you imagine all of the above items that have made their way to the Warhol authentication board? It must be an extraordinary number and a tremendous waste of time for the board.
While I can easily side with Joe Simon, as well as the legendary Ivan Karp, who also had a painting rejected, I can also appreciate what the board must go through. I am of the feeling that despite cries of favoritism as to whose Warhols pass muster, the board basically seems to be doing a good job. It was set up to protect the value and integrity of those works which are undoubtedly real. As someone who has seen and dealt a lot of Warhols, I can only recall seeing a couple of fakes -- and they were so blatant that you didn't need the board to tell you so.
It is my hope that in the future the board will give Warhol paintings like the one owned by Simon the benefit of the doubt while coming down hard on those works which are obviously fraudulent. Once again, given Warhol's philosophy of wanting to be a "machine," any work of art that he made or authorized should be considered real -- as long as it was intended to be a work of art. It's simply a matter of common sense.
RICHARD POLSKY is the author of the newly released book, I Bought Andy Warhol (Abrams).
Frankfurter Allgemeine Zeitung. aug 2007
http://www.faz.net/s/RubBC09F7BF72A2405A96718ECBFB68FBFE/Doc~E32E26321F7F940EC896019716CD5E52D~ATpl~Ecommon~Scontent.html
translation:
The Swedish daily paper „Expressen has uncovered in a series of articles that some of Andy Warhol's famous Brillo Boxes are most likely fakes and were manufactured in the year 1990, three years after the death of the artist. Approximately one hundred soapbox sculptures are in circulation on the international art market. Even if it is agreed on the fact that Warhol need not have touched a work to be considered as authentic, the catalogue raisonne of the artists work must be rewritten. Only recently a work by Warhol created attention in New York, when the American film producer Joe Simon Whelan sued the Andy Warhol art Authentication board for twenty million dollars plus damages, because they had twice rejected his Warhol self portrait for not being authentic.
This first Brillo Boxes of Andy Warhol (1929 to 1987) are plywood crates, were silk screened with the trademark Brillo's red-blue Design. These sculptures originated in 1964 and exhibited in the spring of the same year in the New Yorker Stable Gallery as well as others box Sculptures " by Warhol, among them „Campbell's Tomato Juice ", „Kellogg's Cornflakes "and „Heinz Tomato Ketchup ".
Replaced for Cost reasons:
The young Kasper Koning, currently director of the Cologne museum Ludwig, was impressed by the exhibition in New York's Stable gallery. Thus Koning proposed to the legendary Swedish museum director Pontus Hultén (1924 to 2006) a concept for a Warhol exhibition in the Moderna Museet in Stockholm, which would include Electric Chair paintings, Warhols films, silver helium balloons and screen print paintings of Warhol’s Ten Foot Flowers as well as Brillo boxes. In order to save costs, however cardboard boxes manufactured by the Brillo factory in Brooklyn were exhibited and not plywood Sculptures from Warhol’s Factory in New York. In 1968, The Brillo factory sent 500 of the folded up cardboard Brillo packing cases directly to Sweden and installed in the Moderna Museet for the exhibition.
Hultén recalls in his 2004 book „The Pontus Hultén Collection, how he had manufactured one hundred wooden crates in Sweden for the show. Warhol apparently asked „Why don't you make them there? ", And gave his consent to have them produced in Sweden. Hultén wrote the wooden boxes were piled up in the entrance area of the museum for the exhibition. Stacked on top of these were the additional cardboard boxes made by the Brillo factory. After the exhibition, according to Hultén, Warhol personally gave him these crates. He wrote in his book they were stored in the depot of the Stockholm Moderna Museet - even years after his departure from the museum in 1973. ___94 crates „Stockholm type "in circulation"___The Warhol catalogue raisonne of works of 2004 specifies 94 wooden boxes of 1968 as „Stockholm type ". They differ from the boxes made in 1964 by the fact that they are not made from plywood, as by the Warhol Factory, but from fiberboards, and that the white underground is not painted, but printed. In addition the Design contains the additive „of PAD Giant "over „the O "from Brillo. While the most expensive individual Brillo box created in 1964 sold for 710,000 dollars in November 2006 with Christie's in New York, the later Stockholm types of 1968 on auctions recently reached prices between 100.000 and 200,000 dollars. The Expressen revealed "that in 1968 in the Moderna Museet no wooden boxes were exhibited only exclusively the cardboard boxes created and directly sent by the Brillo company.
The Swedish newspaper refers to statements of the Co-curators of the show, Olle Granath, as well as to Paul Morrissey, the manager at that time of Warhol’s Factory, as well as other witnesses. Also Kasper Koning doesn't know anything about wooden crates being exhibited in Sweden. However he did not also see the exhibition( although Paul Morissey had attended) : At that time Koning preferred to cash in the prepaid flight to Sweden and remained in New York. The press spokeswoman of the Moderna Museet, Paulina Sokolow, confirms, that after the exhibition in the same year 1968 Hulten made ten Brillo boxes of wood: „ “Most likely with Andy Warhol’s permission, but so far no documents have emerged which confirms this.” Of this small edition Olle Granath received three, which he sold decades later to the Paula Cooper Gallery in New York.
Approximately one hundred crates from the year 1990. The Expressen reports “Three years after Warhol’s death Pontus Hultén manufactured approximately one hundred of the new wooden Brillo Boxes in a workshop in Malmo, with the date 1968.” The newspaper quotes the director of the Museum Malmö and other witnesses, who remember that in 1990 Hultén found suitable craftsman and sent a cardboard Brillo box as a sample to Malmö. Approximately one hundred of the new 1990 wooden boxes were shown in an exhibition in St Petersburg and fifty in the autumn of the same year in the Danish Louis IANA museum. It is clarified that these fifty were returned to Pontus Hultén after the show. Now the suspicion arises that these 1990 crates with the date 1968 infiltrated the art market as well as the Warhol catalogue raisonne. But where are they? Hultén gave 1995 six Brillo boxes to the Moderna Museet. Their provenance according to Sokolow, is currently being examined. (according to the Warhol catalalogue raisonne funded by the Warhol Foundation: Lord Palumo, who was a member of the Warhol Foundation Board of directors at the time, owns a 1990 authenticated wooden sculpture as well; others are owned by well known art dealer/ clients of the Warhol Foundation. The Warhol art authentication board refuse to accept first hand testimony from those who actually worked with Warhol, such as Paul Morrissey, Gerard Malanga, Sam Green, Billy name and others, but the testimony of a powerful art world figure turned dealer such as Pontues Hulten is accepted. )
Other arrived by Hultén into the collections of the artist OD Kienholz and the collector Stavros Merjos. The Antwerp art dealer Ronny van de Velde bought forty Brillo boxes from Hultén for $240,000 in 1994 - with its written, but no longer convincing explanation, that the crates were exhibited in the modenta museet in 1968. In retrospect, Kasper Koning cannot imagine that Pontus Hultén created the crates with the intention of selling them later: “most likely, he manufactured them for the exhibition in St Petersburg, afterwards they were stored in a house in France, with coffee stains, and finally probably someone asked it whether they were for sale. I am sorry that his reputation is now questioned, but I am sure that was not his intention. "
Confirmed by the Authentication board
In the year 2004 the London again art dealer Brian Balfour Oates bought 22 boxes from Hulten. Every one of them was confirmed as genuine by the Andy Warhol Art Authentication board.
In Feb of this year one of the forged examples was supposedly auctioned by Christies in London for 96,000 pounds by the art dealing family Mugrabi, who specializes in Warhol's. Upon request, Christies said they are not commenting on this. The New Yorker Gallerist Paula Cooper is in her own estimation not a Warhol expert but she says: “ in 1990 one already knew that you be careful must be careful with Warhol" Seven years ago, when he retired, Granath offered her three wooden Brillo Boxes, she first started an investigation. The confirmation of the Authentication board convinced her.
Report in preparation
The New Yorker attorney Seth Redniss is putting pressure on the Authentication board with a class action lawsuit, in totally different cases, in which authentication has been refused. On the Brillo boxes listed in the catalogue raisonne, he addresses two possibilities regarding the brillo boxes listed in the catalogue raisonne „"Either the publishers did poor work, or they intentionally put the wrong crates in the catalogue in order to provide advantages to those who are important people in the art scene" On request of this newspaper has the Andy Warhol Art Authentication board commented that the committee and the publishers of the catalogue raisonne are investigating to examine the serious accusations regarding „the Stockholm type "the Brillo Boxes: „A report will be published, as soon as the investigations are final. "
Thus, note: All owners of crates from the year 1964 can draw a deep breath, but each Brillo box of 1968 is a potential soap powder barrel. Kasper Koning is lucky. He has 1968 a Brillo box from Warhol as a personal gift: “I still use it today. My television stands on it.”
(according to the Warhol cataloge raisonne, andy warhol authorized 100 boxes to be made in California for the collection of the Pasadena Art Museum and to remain. These were not made by Andy Warhol but authenticated by the board. Although Warhol specifically stated that only 100 were to be made, the board have authenticated a further 13 of these box sculptures, worth over a million dollars, which are owned by prominent Warhol dealers and collectors.)
translation:
The Swedish daily paper „Expressen has uncovered in a series of articles that some of Andy Warhol's famous Brillo Boxes are most likely fakes and were manufactured in the year 1990, three years after the death of the artist. Approximately one hundred soapbox sculptures are in circulation on the international art market. Even if it is agreed on the fact that Warhol need not have touched a work to be considered as authentic, the catalogue raisonne of the artists work must be rewritten. Only recently a work by Warhol created attention in New York, when the American film producer Joe Simon Whelan sued the Andy Warhol art Authentication board for twenty million dollars plus damages, because they had twice rejected his Warhol self portrait for not being authentic.
This first Brillo Boxes of Andy Warhol (1929 to 1987) are plywood crates, were silk screened with the trademark Brillo's red-blue Design. These sculptures originated in 1964 and exhibited in the spring of the same year in the New Yorker Stable Gallery as well as others box Sculptures " by Warhol, among them „Campbell's Tomato Juice ", „Kellogg's Cornflakes "and „Heinz Tomato Ketchup ".
Replaced for Cost reasons:
The young Kasper Koning, currently director of the Cologne museum Ludwig, was impressed by the exhibition in New York's Stable gallery. Thus Koning proposed to the legendary Swedish museum director Pontus Hultén (1924 to 2006) a concept for a Warhol exhibition in the Moderna Museet in Stockholm, which would include Electric Chair paintings, Warhols films, silver helium balloons and screen print paintings of Warhol’s Ten Foot Flowers as well as Brillo boxes. In order to save costs, however cardboard boxes manufactured by the Brillo factory in Brooklyn were exhibited and not plywood Sculptures from Warhol’s Factory in New York. In 1968, The Brillo factory sent 500 of the folded up cardboard Brillo packing cases directly to Sweden and installed in the Moderna Museet for the exhibition.
Hultén recalls in his 2004 book „The Pontus Hultén Collection, how he had manufactured one hundred wooden crates in Sweden for the show. Warhol apparently asked „Why don't you make them there? ", And gave his consent to have them produced in Sweden. Hultén wrote the wooden boxes were piled up in the entrance area of the museum for the exhibition. Stacked on top of these were the additional cardboard boxes made by the Brillo factory. After the exhibition, according to Hultén, Warhol personally gave him these crates. He wrote in his book they were stored in the depot of the Stockholm Moderna Museet - even years after his departure from the museum in 1973. ___94 crates „Stockholm type "in circulation"___The Warhol catalogue raisonne of works of 2004 specifies 94 wooden boxes of 1968 as „Stockholm type ". They differ from the boxes made in 1964 by the fact that they are not made from plywood, as by the Warhol Factory, but from fiberboards, and that the white underground is not painted, but printed. In addition the Design contains the additive „of PAD Giant "over „the O "from Brillo. While the most expensive individual Brillo box created in 1964 sold for 710,000 dollars in November 2006 with Christie's in New York, the later Stockholm types of 1968 on auctions recently reached prices between 100.000 and 200,000 dollars. The Expressen revealed "that in 1968 in the Moderna Museet no wooden boxes were exhibited only exclusively the cardboard boxes created and directly sent by the Brillo company.
The Swedish newspaper refers to statements of the Co-curators of the show, Olle Granath, as well as to Paul Morrissey, the manager at that time of Warhol’s Factory, as well as other witnesses. Also Kasper Koning doesn't know anything about wooden crates being exhibited in Sweden. However he did not also see the exhibition( although Paul Morissey had attended) : At that time Koning preferred to cash in the prepaid flight to Sweden and remained in New York. The press spokeswoman of the Moderna Museet, Paulina Sokolow, confirms, that after the exhibition in the same year 1968 Hulten made ten Brillo boxes of wood: „ “Most likely with Andy Warhol’s permission, but so far no documents have emerged which confirms this.” Of this small edition Olle Granath received three, which he sold decades later to the Paula Cooper Gallery in New York.
Approximately one hundred crates from the year 1990. The Expressen reports “Three years after Warhol’s death Pontus Hultén manufactured approximately one hundred of the new wooden Brillo Boxes in a workshop in Malmo, with the date 1968.” The newspaper quotes the director of the Museum Malmö and other witnesses, who remember that in 1990 Hultén found suitable craftsman and sent a cardboard Brillo box as a sample to Malmö. Approximately one hundred of the new 1990 wooden boxes were shown in an exhibition in St Petersburg and fifty in the autumn of the same year in the Danish Louis IANA museum. It is clarified that these fifty were returned to Pontus Hultén after the show. Now the suspicion arises that these 1990 crates with the date 1968 infiltrated the art market as well as the Warhol catalogue raisonne. But where are they? Hultén gave 1995 six Brillo boxes to the Moderna Museet. Their provenance according to Sokolow, is currently being examined. (according to the Warhol catalalogue raisonne funded by the Warhol Foundation: Lord Palumo, who was a member of the Warhol Foundation Board of directors at the time, owns a 1990 authenticated wooden sculpture as well; others are owned by well known art dealer/ clients of the Warhol Foundation. The Warhol art authentication board refuse to accept first hand testimony from those who actually worked with Warhol, such as Paul Morrissey, Gerard Malanga, Sam Green, Billy name and others, but the testimony of a powerful art world figure turned dealer such as Pontues Hulten is accepted. )
Other arrived by Hultén into the collections of the artist OD Kienholz and the collector Stavros Merjos. The Antwerp art dealer Ronny van de Velde bought forty Brillo boxes from Hultén for $240,000 in 1994 - with its written, but no longer convincing explanation, that the crates were exhibited in the modenta museet in 1968. In retrospect, Kasper Koning cannot imagine that Pontus Hultén created the crates with the intention of selling them later: “most likely, he manufactured them for the exhibition in St Petersburg, afterwards they were stored in a house in France, with coffee stains, and finally probably someone asked it whether they were for sale. I am sorry that his reputation is now questioned, but I am sure that was not his intention. "
Confirmed by the Authentication board
In the year 2004 the London again art dealer Brian Balfour Oates bought 22 boxes from Hulten. Every one of them was confirmed as genuine by the Andy Warhol Art Authentication board.
In Feb of this year one of the forged examples was supposedly auctioned by Christies in London for 96,000 pounds by the art dealing family Mugrabi, who specializes in Warhol's. Upon request, Christies said they are not commenting on this. The New Yorker Gallerist Paula Cooper is in her own estimation not a Warhol expert but she says: “ in 1990 one already knew that you be careful must be careful with Warhol" Seven years ago, when he retired, Granath offered her three wooden Brillo Boxes, she first started an investigation. The confirmation of the Authentication board convinced her.
Report in preparation
The New Yorker attorney Seth Redniss is putting pressure on the Authentication board with a class action lawsuit, in totally different cases, in which authentication has been refused. On the Brillo boxes listed in the catalogue raisonne, he addresses two possibilities regarding the brillo boxes listed in the catalogue raisonne „"Either the publishers did poor work, or they intentionally put the wrong crates in the catalogue in order to provide advantages to those who are important people in the art scene" On request of this newspaper has the Andy Warhol Art Authentication board commented that the committee and the publishers of the catalogue raisonne are investigating to examine the serious accusations regarding „the Stockholm type "the Brillo Boxes: „A report will be published, as soon as the investigations are final. "
Thus, note: All owners of crates from the year 1964 can draw a deep breath, but each Brillo box of 1968 is a potential soap powder barrel. Kasper Koning is lucky. He has 1968 a Brillo box from Warhol as a personal gift: “I still use it today. My television stands on it.”
(according to the Warhol cataloge raisonne, andy warhol authorized 100 boxes to be made in California for the collection of the Pasadena Art Museum and to remain. These were not made by Andy Warhol but authenticated by the board. Although Warhol specifically stated that only 100 were to be made, the board have authenticated a further 13 of these box sculptures, worth over a million dollars, which are owned by prominent Warhol dealers and collectors.)
Monday 1 October 2007
Trust me its a fake
"Trust me, this is a fake"
01/07/2004
A lawyer suggests that the decisions of expert committees should not be beyond the reach of the law
Auction houses will generally decline to auction a work of art if it does not feature in the artistIs catalogue raisonnshift right, which is generally perceived to be the definitive and exhaustive catalogue of an artistIs work. The inclusion of a work of art in the catalogue raisonnshift right serves to authenticate the work; if it is not included, it suggests that it is not authentic. Similarly, auction houses will often decline to auction a work of art if it is not approved by the committee recognised by the market as holding ultimate authority over the authentication of an artistIs work. Such committee may either be appointed by the holder of the artistIs moral rights, or it may be self-proclaimed. It often holds some or all of the artistIs archives, and includes one or more experts on the work of the artist it represents.
When an artist dies, the holder of his moral rights is generally regarded as the definitive authority on whether a work is by the artist or not. Moral rights may vest in the spouse, the children or a personal representative of the artist. The two relevant moral rights in this context are the right to prevent false attribution, and the right of paternity, which, in the UK, are expressly recognised in the Copyright, Designs and Patents Act 1988. The right to prevent false attribution is to be able to stop a work of art from being falsely attributed to the artist; the right of paternity is the right to be positively identified as its author.
Moral rights are not perpetual. The right of paternity lasts as long as copyright, currently 70 years from the date of the artistIs death; the right to prevent false attribution, on the other hand, expires 20 years after death.
Moral rights have a longer tradition in continental Europe, where they have been recognised since the 19th century. The artistIs heirs inherit the custodianship of his/her moral rights and this generally lasts as long as the copyright in the artistIs work. In contrast, limited moral rights legislation was only enacted by several States in the US as late as the 1980s. At federal level, the Visual Artists Rights Act adopted in 1990 now regulates the right of paternity in works of visual art such as paintings, drawings, prints, sculptures and photographs. The right of paternity includes that of preventing the artistIs name being used as the author of a work he/she did not create. Under the Act, the duration of the right of paternity for works created before 1 June 1991 is the life of the artist plus 50 years: moral rights to works created on or after 1 June 1991 expire on the artistIs death.
In the case of artists active in the second half of the 19th and throughout the 20th centuries, the market has come to view one or two experts, or groups of experts, as the leading authorities on particular artistsI work. Although the authentication of a work of art is not the sole prerogative of the holder of the artistIs moral rights, holding such rights will give him/her precedence over other experts. Where moral rights have expired, the inclusion of a work in the artistIs catalogue raisonnshift right and the opinion of the expert with access to the artistIs archives will be paramount. Auction houses and art dealers are generally unwilling to sell works of art without the blessing of the prime expert: if they do, they may risk having to cancel the sale and return the purchase price to the buyer, sometimes without recourse against the seller.
In most cases, the refusal by the prime expert to authenticate a work of art has the drastic consequence of rendering it worthless. The owner may find other experts who say the work is genuine; he may be able to provide good provenance, or even conduct scientific analyses to demonstrate that the work is by the artist. Nonetheless, if the prime expert refuses to agree with the attribution, his opinion will make the work almost unsaleable.
A dispute has recently arisen between the Warhol Authentication Board and owners of works of art purchased as original Warhols (The Art Newspaper, No. 140). The Board has refused to authenticate the works, sparking claims that its refusal is motivated by reasons other than authenticity (or lack thereof). Owners have voiced their anger at the BoardIs decisions, claiming in some cases that the Board authenticated a work and then changed its mind, and complaining that the Board would not give reasons for its decisions. It has been reported that the Board declines to share its reasoning because its decisions are often based on subjective criteria that are not susceptible to proof, and it maintains that, if reasons were given, forgers would find out how to fake Warhol works. But this absence of evidence is precisely why owners resent the unsubstantiated opinions issued by the Board and other committees representing deceased artists. However, in certain circumstances, the Warhol Authentication Board will give reason for its opinion. The Board does not say when those circumstances arise but it seems that the serious threat of a lawsuit by the angry owner of a rejected work will deliver results. Indeed, last month, the Board wrote to collector Joe Simon to give its reasons for rejecting a silkscreen painting in the wake of Mr SimonIs threat to take the Board to court.
The refusal to provide a reasoned opinion is not the only compaint: the lack of transparency in the authentication process can raise suspicions, and artistsI committees are generally unregulated. Some have to contend with conflicts of interest, for example where committee members have ties with collectors or dealers in the artist they represent. It has also been alleged that artistsI committees may have an interest in limiting the number of works by the artist available on the market in order to boost the value of works held by their members or an affiliated body.
In their defence, artistsI committees argue that they have their reputation to preserve and they will not therefore accept or reject a work of art without good reason. They also point out that, like other experts, they may incur liability for negligence or other torts if they do not follow a proper methodology when assessing whether a work is authentic or not. The row over works by Andy Warhol is not isolated. Other examples include the committee assembled by the widow of artist Francis Picabia, which battled with an art collector following its refusal to authenticate a series of collages; and the Van Gogh Museum, criticised for failing adequately to support its opinion that a painting representing two diggers was a genuine Van Gogh.
What possible recourse is there against the expert?
An aggrieved owner, unconvinced by the negative opinion of the prime expert and in possession of other expert opinions supporting his view that the work is genuine may be tempted to seek redress through the courts.
Under English law, there are several possible heads of claim, one of which is slander of goods. An action here will lie where the defendant maliciously publishes a false
statement on the claimantIs property and where the publication causes the claimant to suffer special damage. The claimant must show that the statement was both false and malicious: in order to show malice, the claimant must prove that the defendant had
a dominant improper motive to cause him injury.
The owner may also have a claim for negligent misstatement, which is the making of an erroneous statement (often a professional opinion or advice) to another person in circumstances where the giver of the statement owes a duty of care to the recipient of it. In order to succeed, the owner/claimant must prove both that the statement was false and that it was made negligently. Therefore, in order to avoid liability for negligence, an expert must apply his expertise diligently: he may be liable if his opinion proves to be wrong or if he applied his expertise badly, for example, in failing to draw the proper conclusions from comparative analyses, or if his reasoning was flawed. The claimant must also prove that the defendant owed him a duty of care. An artistIs committee may have assumed a duty of care, although this is by no means certain, and it is important to appreciate that the duty may be expressly disclaimed by the committee either before or at the time the opinion was expressed.
Fraud is another possible head of claim, albeit a tough one to prove.
If the expert committee is a public body and therefore subject to public law, its decisions may be susceptible to judicial review. In the UK, a court may not overturn a decision taken by an expert committee simply because it disagrees with it. Instead, the Court will consider whether there has been any illegality (ie; whether the public body has misdirected itself at law), whether the decision was irrational (ie; whether the decision was so outrageous that no reasonable person would have made it) or whether there was some procedural impropriety. It is far from certain whether the English courts would accept jurisdiction over the decisions of a public body authenticating works of art: this would depend, in part, on whether such body performs a public duty and whether the rights of citizens are affected by its decisions. Courts may be inclined to exercise their powers of judicial review if they find that decisions by such bodies are not otherwise open to challenge. A parallel may be drawn from the decision of the Court of Appeal to allow judicial review over a decision of the Panel on Takeovers and Mergers (R. v Panel on Takeovers and Mergers, ex-parte Datafin plc and another [1987] QB 815).
In the US, owners have claimed violation of anti-trust laws on a few occasions, for example the anti-trust allegation made against the Pollock-Krasner Authentication Board, the Pollock-Krasner Foundation, SothebyIs and ChristieIs (Kramer v Pollock-Krasner Foundation, Pollock-Krasner Authentication Board, Inc, SothebyIs, Inc and Christie, Manson & Woods International, Inc, 890 F. Supp. 250 [S.D.N.Y 1995]). Here, the claimant submitted that there was an anti-trust conspiracy designed to exclude authentic Pollock pieces from the market in an attempt to increase the value of Pollock paintings owned by the Foundation and auctioned by SothebyIs and ChristieIs.
The court dismissed the claim because the claimant failed adequately to identify the relevant market where the anti-trust violation had allegedly taken place. Furthermore, the court considered that the claimant had failed to prove that the auction houses had participated in a conspiracy, noting that they had good reasons for declining to offer paintings for sale that might well have proved to be forgeries. The anti-trust claim is ingenious, but it is probably too far-fetched to have any real chances of success.
It must be said that aggrieved owners face a difficult task. Each head of claim places a heavy burden on the claimant to make good the contention that the prime expert got it wrong. If it is accepted that decisions on attribution and authenticity are expressions of opinion, then the English courts are unlikely to overturn the expertIs opinion, unless the claimant can show that it is irrational: but the claimant may be unable to do so unless the expert has disclosed the reasons for his decisionUand many experts do not.
Other European legal systems consider expertsI statements on attribution and authenticity as binding: they are treated more as statements of fact than expressions of opinion and the courts are more willing to challenge the expert and call on their own experts to render judgment on the authenticity or attribution of a particular work.
In 1995, ChristieIs declined to include a painting by Kees Van Dongen in an auction because the Wildenstein Institute had indicated that it would not be included in its forthcoming catalogue raisonnshift right. The owner started proceedings against the Institute in the French courts, as he had bought the painting a few years earlier with a certificate of authenticity from Paul PetridAs, the acknowledged expert.
The French court appointed two independent experts, who concluded that the painting was genuine. The court held that the Institute could not refuse to include the painting in its forthcoming catalogue raisonnshift right unless there were new material changes in connoisseurship: indeed, if the painting were not included in the catalogue raisonnshift right, the Institute would not be able to claim that its catalogue was an exhaustive compilation of the artistIs work (as it had done). The court added that the author of a catalogue raisonnshift right would be liable if he negligently or intentionally excluded a work from the catalogue, despite the contrary opinion of acknowledged experts (Dumshift rightnil v. Wildenstein Institute and Others, Tribunal de Grande Instance de Paris, 16 September 1999,
unpublished). Since then, the Wildenstein Institute has been sued by another collector in
the French courts, this time for refusing to include a Modigliani drawing in its forthcoming catalogue
raisonnshift right.
It is arguable that expert committees hold too much power over economic interests to remain unregulated for much longer. Any such regulation might be imposed by statute; alternatively, committees might subject themselves to self-regulation. One would expect any regulations to require that members of the expert committee be acknowledged experts in their field, and, to avoid any perceived conflict of interest, neither the committee itself, nor any of its members, should have an economic interest in the market for works by the artist. The committee should publish a clear methodology for authenticating works by the artist and provide reasons for any decision to refuse authentication by reference to the methodology. Moreover, the committeeIs decisions should be subject to review by the courts or by an independent supervisory body.
Pierre Valentin
Head of the Art & Cultural Assets Group at Withers LLP, London
_Features_Authentication issues
01/07/2004
A lawyer suggests that the decisions of expert committees should not be beyond the reach of the law
Auction houses will generally decline to auction a work of art if it does not feature in the artistIs catalogue raisonnshift right, which is generally perceived to be the definitive and exhaustive catalogue of an artistIs work. The inclusion of a work of art in the catalogue raisonnshift right serves to authenticate the work; if it is not included, it suggests that it is not authentic. Similarly, auction houses will often decline to auction a work of art if it is not approved by the committee recognised by the market as holding ultimate authority over the authentication of an artistIs work. Such committee may either be appointed by the holder of the artistIs moral rights, or it may be self-proclaimed. It often holds some or all of the artistIs archives, and includes one or more experts on the work of the artist it represents.
When an artist dies, the holder of his moral rights is generally regarded as the definitive authority on whether a work is by the artist or not. Moral rights may vest in the spouse, the children or a personal representative of the artist. The two relevant moral rights in this context are the right to prevent false attribution, and the right of paternity, which, in the UK, are expressly recognised in the Copyright, Designs and Patents Act 1988. The right to prevent false attribution is to be able to stop a work of art from being falsely attributed to the artist; the right of paternity is the right to be positively identified as its author.
Moral rights are not perpetual. The right of paternity lasts as long as copyright, currently 70 years from the date of the artistIs death; the right to prevent false attribution, on the other hand, expires 20 years after death.
Moral rights have a longer tradition in continental Europe, where they have been recognised since the 19th century. The artistIs heirs inherit the custodianship of his/her moral rights and this generally lasts as long as the copyright in the artistIs work. In contrast, limited moral rights legislation was only enacted by several States in the US as late as the 1980s. At federal level, the Visual Artists Rights Act adopted in 1990 now regulates the right of paternity in works of visual art such as paintings, drawings, prints, sculptures and photographs. The right of paternity includes that of preventing the artistIs name being used as the author of a work he/she did not create. Under the Act, the duration of the right of paternity for works created before 1 June 1991 is the life of the artist plus 50 years: moral rights to works created on or after 1 June 1991 expire on the artistIs death.
In the case of artists active in the second half of the 19th and throughout the 20th centuries, the market has come to view one or two experts, or groups of experts, as the leading authorities on particular artistsI work. Although the authentication of a work of art is not the sole prerogative of the holder of the artistIs moral rights, holding such rights will give him/her precedence over other experts. Where moral rights have expired, the inclusion of a work in the artistIs catalogue raisonnshift right and the opinion of the expert with access to the artistIs archives will be paramount. Auction houses and art dealers are generally unwilling to sell works of art without the blessing of the prime expert: if they do, they may risk having to cancel the sale and return the purchase price to the buyer, sometimes without recourse against the seller.
In most cases, the refusal by the prime expert to authenticate a work of art has the drastic consequence of rendering it worthless. The owner may find other experts who say the work is genuine; he may be able to provide good provenance, or even conduct scientific analyses to demonstrate that the work is by the artist. Nonetheless, if the prime expert refuses to agree with the attribution, his opinion will make the work almost unsaleable.
A dispute has recently arisen between the Warhol Authentication Board and owners of works of art purchased as original Warhols (The Art Newspaper, No. 140). The Board has refused to authenticate the works, sparking claims that its refusal is motivated by reasons other than authenticity (or lack thereof). Owners have voiced their anger at the BoardIs decisions, claiming in some cases that the Board authenticated a work and then changed its mind, and complaining that the Board would not give reasons for its decisions. It has been reported that the Board declines to share its reasoning because its decisions are often based on subjective criteria that are not susceptible to proof, and it maintains that, if reasons were given, forgers would find out how to fake Warhol works. But this absence of evidence is precisely why owners resent the unsubstantiated opinions issued by the Board and other committees representing deceased artists. However, in certain circumstances, the Warhol Authentication Board will give reason for its opinion. The Board does not say when those circumstances arise but it seems that the serious threat of a lawsuit by the angry owner of a rejected work will deliver results. Indeed, last month, the Board wrote to collector Joe Simon to give its reasons for rejecting a silkscreen painting in the wake of Mr SimonIs threat to take the Board to court.
The refusal to provide a reasoned opinion is not the only compaint: the lack of transparency in the authentication process can raise suspicions, and artistsI committees are generally unregulated. Some have to contend with conflicts of interest, for example where committee members have ties with collectors or dealers in the artist they represent. It has also been alleged that artistsI committees may have an interest in limiting the number of works by the artist available on the market in order to boost the value of works held by their members or an affiliated body.
In their defence, artistsI committees argue that they have their reputation to preserve and they will not therefore accept or reject a work of art without good reason. They also point out that, like other experts, they may incur liability for negligence or other torts if they do not follow a proper methodology when assessing whether a work is authentic or not. The row over works by Andy Warhol is not isolated. Other examples include the committee assembled by the widow of artist Francis Picabia, which battled with an art collector following its refusal to authenticate a series of collages; and the Van Gogh Museum, criticised for failing adequately to support its opinion that a painting representing two diggers was a genuine Van Gogh.
What possible recourse is there against the expert?
An aggrieved owner, unconvinced by the negative opinion of the prime expert and in possession of other expert opinions supporting his view that the work is genuine may be tempted to seek redress through the courts.
Under English law, there are several possible heads of claim, one of which is slander of goods. An action here will lie where the defendant maliciously publishes a false
statement on the claimantIs property and where the publication causes the claimant to suffer special damage. The claimant must show that the statement was both false and malicious: in order to show malice, the claimant must prove that the defendant had
a dominant improper motive to cause him injury.
The owner may also have a claim for negligent misstatement, which is the making of an erroneous statement (often a professional opinion or advice) to another person in circumstances where the giver of the statement owes a duty of care to the recipient of it. In order to succeed, the owner/claimant must prove both that the statement was false and that it was made negligently. Therefore, in order to avoid liability for negligence, an expert must apply his expertise diligently: he may be liable if his opinion proves to be wrong or if he applied his expertise badly, for example, in failing to draw the proper conclusions from comparative analyses, or if his reasoning was flawed. The claimant must also prove that the defendant owed him a duty of care. An artistIs committee may have assumed a duty of care, although this is by no means certain, and it is important to appreciate that the duty may be expressly disclaimed by the committee either before or at the time the opinion was expressed.
Fraud is another possible head of claim, albeit a tough one to prove.
If the expert committee is a public body and therefore subject to public law, its decisions may be susceptible to judicial review. In the UK, a court may not overturn a decision taken by an expert committee simply because it disagrees with it. Instead, the Court will consider whether there has been any illegality (ie; whether the public body has misdirected itself at law), whether the decision was irrational (ie; whether the decision was so outrageous that no reasonable person would have made it) or whether there was some procedural impropriety. It is far from certain whether the English courts would accept jurisdiction over the decisions of a public body authenticating works of art: this would depend, in part, on whether such body performs a public duty and whether the rights of citizens are affected by its decisions. Courts may be inclined to exercise their powers of judicial review if they find that decisions by such bodies are not otherwise open to challenge. A parallel may be drawn from the decision of the Court of Appeal to allow judicial review over a decision of the Panel on Takeovers and Mergers (R. v Panel on Takeovers and Mergers, ex-parte Datafin plc and another [1987] QB 815).
In the US, owners have claimed violation of anti-trust laws on a few occasions, for example the anti-trust allegation made against the Pollock-Krasner Authentication Board, the Pollock-Krasner Foundation, SothebyIs and ChristieIs (Kramer v Pollock-Krasner Foundation, Pollock-Krasner Authentication Board, Inc, SothebyIs, Inc and Christie, Manson & Woods International, Inc, 890 F. Supp. 250 [S.D.N.Y 1995]). Here, the claimant submitted that there was an anti-trust conspiracy designed to exclude authentic Pollock pieces from the market in an attempt to increase the value of Pollock paintings owned by the Foundation and auctioned by SothebyIs and ChristieIs.
The court dismissed the claim because the claimant failed adequately to identify the relevant market where the anti-trust violation had allegedly taken place. Furthermore, the court considered that the claimant had failed to prove that the auction houses had participated in a conspiracy, noting that they had good reasons for declining to offer paintings for sale that might well have proved to be forgeries. The anti-trust claim is ingenious, but it is probably too far-fetched to have any real chances of success.
It must be said that aggrieved owners face a difficult task. Each head of claim places a heavy burden on the claimant to make good the contention that the prime expert got it wrong. If it is accepted that decisions on attribution and authenticity are expressions of opinion, then the English courts are unlikely to overturn the expertIs opinion, unless the claimant can show that it is irrational: but the claimant may be unable to do so unless the expert has disclosed the reasons for his decisionUand many experts do not.
Other European legal systems consider expertsI statements on attribution and authenticity as binding: they are treated more as statements of fact than expressions of opinion and the courts are more willing to challenge the expert and call on their own experts to render judgment on the authenticity or attribution of a particular work.
In 1995, ChristieIs declined to include a painting by Kees Van Dongen in an auction because the Wildenstein Institute had indicated that it would not be included in its forthcoming catalogue raisonnshift right. The owner started proceedings against the Institute in the French courts, as he had bought the painting a few years earlier with a certificate of authenticity from Paul PetridAs, the acknowledged expert.
The French court appointed two independent experts, who concluded that the painting was genuine. The court held that the Institute could not refuse to include the painting in its forthcoming catalogue raisonnshift right unless there were new material changes in connoisseurship: indeed, if the painting were not included in the catalogue raisonnshift right, the Institute would not be able to claim that its catalogue was an exhaustive compilation of the artistIs work (as it had done). The court added that the author of a catalogue raisonnshift right would be liable if he negligently or intentionally excluded a work from the catalogue, despite the contrary opinion of acknowledged experts (Dumshift rightnil v. Wildenstein Institute and Others, Tribunal de Grande Instance de Paris, 16 September 1999,
unpublished). Since then, the Wildenstein Institute has been sued by another collector in
the French courts, this time for refusing to include a Modigliani drawing in its forthcoming catalogue
raisonnshift right.
It is arguable that expert committees hold too much power over economic interests to remain unregulated for much longer. Any such regulation might be imposed by statute; alternatively, committees might subject themselves to self-regulation. One would expect any regulations to require that members of the expert committee be acknowledged experts in their field, and, to avoid any perceived conflict of interest, neither the committee itself, nor any of its members, should have an economic interest in the market for works by the artist. The committee should publish a clear methodology for authenticating works by the artist and provide reasons for any decision to refuse authentication by reference to the methodology. Moreover, the committeeIs decisions should be subject to review by the courts or by an independent supervisory body.
Pierre Valentin
Head of the Art & Cultural Assets Group at Withers LLP, London
_Features_Authentication issues
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