<nettime> Collectors, artists and lawyers. Fear of litigation is hobbling the art market

[nettime-l@kein.org]

http://www.economist.com/news/business/21567074-fear-litigation-hobbling-art-market-collectors-artists-and-lawyers

AT A Christie’s auction in New York this month, a painting known as 
Ocean Park #48 fetched $13.5m, a record for a work by Richard 
Diebenkorn, a Californian artist who died in 1993. The 1971 abstract 
painting had been certified as genuine by the Richard Diebenkorn 
Foundation in Berkeley. Less fortunate are the owners of more than 200 
purported Diebenkorn paintings and drawings that the foundation declined 
to certify. Since an unauthenticated picture is not worth nearly as 
much, three owners got their lawyers to send threatening letters.

Spooked, the foundation is beefing up its liability insurance. Richard 
Grant, the director, expects to protect his authentication board’s seven 
experts with millions of dollars of liability insurance by the time a 
comprehensive list of genuine works, known as a catalogue raisonné, is 
published in about three years. The expense is worth it, he says. 
Authentication reassures buyers, which stimulates sales.

Alas, plenty of other experts are now too scared of lawsuits to 
authenticate pictures, says Clare McAndrew, the founder of Arts 
Economics, a consultancy. Early this year the Andy Warhol Foundation 
dissolved its authentication board after spending $7m to fight a lawsuit 
from a disgruntled London collector. In September the Estate of 
Jean-Michel Basquiat and the Keith Haring Foundation stopped 
authenticating works by the two late artists. Last year the Roy 
Lichtenstein Foundation dissolved its authentication committee rather 
than “jeopardise our health and well-being”, says Jack Cowart, its 
director. In the past five years insurance policies taken out by art 
authenticators have more than doubled at Hiscox, an insurer.

Forgers nowadays typically favour 20th-century abstract and 
expressionist styles. Mimicking Jackson Pollock’s drip-and-splatter 
paintings is easier than faking old masters such as Rembrandt. Swamped 
with lawsuits, the Pollock-Krasner Foundation stopped authenticating 
works in 1996, four decades after Pollock’s death. Lawsuits continued 
anyway. A court even entertained a suit from a man with a painting 
signed “Pollack” (he lost).

A brush with the law

Most suits fail, but fears keep mounting, says Sharon Flescher, director 
of the International Foundation for Art Research. Her organisation, 
based in New York, helps by allowing some scholars to carry out 
authentication under its auspices after art owners have signed its 
waivers. Such promises not to sue are now common, but unreliable. The 
plaintiff who attacked the Warhol foundation sidestepped a waiver he had 
signed by accusing the group of monopolism. (He eventually gave up.)

Courts do not go easy on defendants just because they are art scholars 
of modest means, says Ronald Spencer, an art lawyer and author of a book 
about art forgery, “The Expert and the Object”. Scholars are “nervous 
about taking a $500 fee and getting sued for $10m”, he says.

All this is bound to hurt sales. Already the top of the art market is 
suffering, says Véronique Wiesinger, the chief curator at France’s 
ministry of culture. As scholars grow reluctant to give opinions, 
forgers find it easier to circulate their wares. Savvy art-buyers have 
noticed, she says, and are spending less than they otherwise would. Less 
sophisticated ones will soon wise up and do likewise, Ms Wiesinger says.

Her duties include running the French government body that authenticates 
and promotes works by Alberto Giacometti, a Swiss artist who died in 
1966. The Fondation Alberto et Annette Giacometti recently began 
fighting a lawsuit from an Italian collector upset that a piece he owns 
will not be included in the Giacometti catalogue raisonné. Ms Wiesinger 
reckons the suit will drag on for years and eat up about €30,000 
($38,400) in legal fees. “Something must be done,” she complains.

Marc Restellini, a Parisian art historian, rejected as fake numerous 
works while preparing a catalogue raisonné of drawings by Amedeo 
Modigliani, an Italian artist who left little documentation when he died 
young in Paris in 1920. Told by phone in 1999 to leave the drawings 
alone or be killed, Mr Restellini cancelled the project because, as he 
puts it: “I’m not James Bond.” (Now head of the Pinacothèque de Paris, a 
private museum, he continues to work on a catalogue of Modigliani 
paintings, one of which fetched nearly $69m at a Sotheby’s auction two 
years ago.) Other Modigliani catalogues are incomplete or at least 
partially discredited—one French author was convicted for forgery.

Such antics dismay dealers. Sales typically increase, sometimes 
dramatically, upon publication of a catalogue raisonné because buyers 
like knowing which pieces the artist’s estate or other authorities have 
declared genuine. If a good new catalogue raisonné of Modigliani 
drawings were published, sales worldwide would rise by about a fifth, 
reckons Christophe Van de Weghe, a New York art dealer.

The fear of lawsuits makes experts whisper and dodge. For instance, the 
catalogue raisonné of Isamu Noguchi, a Japanese-American sculptor, won’t 
be a real catalogue raisonné, says the project’s manager, Shaina 
Larrivee. To reduce liability, she says, it will be published as an 
online-only, ever-modifiable work-in-progress. It’s harder to sue “a 
constantly moving target”, as another expert puts it. Ms Larrivee says 
that the foundation will keep quiet if it sees an apparently fake 
Noguchi on sale.

Other digital-only catalogues raisonnés are on their way. This is a 
startling development. Many collectors will spend far less on an artwork 
that can be removed from a catalogue raisonné with a keystroke.

How will the art market adapt? China offers a clue. Art expertise in 
China often carries little weight because authenticators are thought to 
be in cahoots with a dealer or seller, says Shin-Yi Yang, a curator in 
Beijing. So living artists make more money, since they can personally 
assure buyers that a picture is not a fake, he says.

A year ago the Courtauld Institute of Art in London prepared an academic 
debate on issues related to the authentication of about 600 drawings 
attributed to Francis Bacon, a British artist who died in 1992. The 
debate was cancelled a week before it was to have taken place on January 
25th 2012, due to the “possibility of legal action”, the institute said. 
The irony will not be lost on those who consider art to be freedom of 
expression incarnate.

Correction: An earlier version of this article said that the Richard 
Diebenkorn Foundation's authentication board declined to certify 200 
purported Diebenkorns. In fact, many of these paintings were brushed off 
before they reached the board. We also calculated a figure of $92m of 
liability insurance on mistaken assumptions. Sorry.






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