The problem with scholars and authentication of works of art is well known. On one hand, we have their reluctance to give expert opinions for fear of being sued and on the other hand, we have the authentication mafias that capture a niche of the market with their ‘expertise’ and do whatever they want with them. Faithful to their lack of courage, the Courtauld Institute of Art cancelled a conference that was due to be held in January 2012, to discuss a large group of drawings that are, according to their owner by Francis Bacon, partly over concerns about the legal repercussions.
There have been moves in some kind of direction these days because the New York City Bar Association, which wants art historians to speak more freely has proposed legislation to protect them from what is described as ‘frivolous’ lawsuits. Withers Worldwide has co-drafted the bill with Dean Nicyper of Flemming Zulack Williamson Zauderer who expressed that ‘authenticators are increasingly speaking with silence’.
The bill seeks to make it more difficult for owners, auctioneers and dealers to bring lawsuits against experts simply because they do not like their opinons. Under the proposed law, claimants must be specific about what they believe the expert has done wrong and must show that there is a significantly higher than 50% chance that the allegations contained in the lawsuit are true. The bill would also allow authenticators to receiver their legal fees if they are vindicated: under current US law, they must pay these even if they win.
The New York City Bar Association began to work on the bill in 2012 after half a dozen artist’s foundation including those of Andy Warhol and Roy Lichtenstein, shut down their authentication boards, largely to avoid litigation. Of course, this situation reached the point of scandal with the fake works sold by Knoedler gallery last year. As an art dealer I suffered this situation with the specialised dealers who could or did not want to do the basic research to trace the provenance of a work of art and tend to raise the most ridiculous observations in order to, eventually, negotiate the price of a work of art. The ethical aspects of this are the ones that should be regulated.
I am saying this because this bill seems to aim at the encouraging scholars to speak up if they spot a forgery or misattributed work but who guarantees us that badly paid scholars are going to be independent. When trading art, I was offered the most ridiculously attributed works of art with the apparent academic support of certain scholars and there are, at least, two outrageous authentications at the Prado that are clearly fakes. It is true that today’s litigious atmospheres gives people trying to peddle works that are not authentic an open field, and constrains communication so that scholars not only wont given an opinion but also feel constrained about speaking to each other but the legislation could also give too much power to scholars to veto anything. Seth Redniss, the lawyer who sued the Andy Warhol Foundation in 2007 and 2010 says: ‘The result will be to cement the power of groups that control the art market and insulate their authentication decisions from scrutiny or judicial oversight’. I am sorry but I don’t think that scholars should be given so much power. The politics in the academic system are far worst than in the arts world or in the judiciary system, if you ask me. Just a thought.